Dispute Resolution in International Trade and Investment Law: Privatisation of the Public?

Global trade and foreign direct investment (FDI) have figured as two most critical facilitators in the communication and knowledge revolution beginning in the mid 1970s. Changes in these economic sectors effected transformations in known and accepted international - and even domestic - rules of the game. They are challenging basic assumptions regarding the three pillars of governance: Law making, law adjudication, and law enforcement, and have brought international law into a swirl. It is now time to bring some theoretical and principled order into what has been born out of economic, political, and legal empirical experimentation. Within this anthology on transnational private governance (TPG), this paper concentrates on the international legal ramifications of the privatisation of areas formerly under public governance. I argue here that - important as they are to the clarifications of the legal and governance practises at the international and national levels - the discourses on the legalisation, judicialization, and constitutionalization of international relations rarely reach beyond the classic paradigm of public versus private international law. And where exploring the overlap between these two spheres, they remain confined to symptomatic issues. For example, the debates address public’s demand for transparency and private sector’s need for confidentiality, or identify new private actors in international relations, yet without tackling the varying challenges these actors pose for public international law. Who are the new actors in international relations? Who is, and who can and should, be recognised as subject of international law? Why, and for what purpose? In other words, in the face of devolution and convergence of governance formats, can the state continue to be the primary (in most cases - the sole) subject of international law? Can it survive the empirical evolutions? If not, what are the rights and obligations that new international NSAs enjoy and must be bound by as new de facto subjects of international law? Who among these actors can and should be recognised as subject of international law? For whatever reason (deterred by the complexity, or simple inattention), scholars have refrained from directly - and prescriptively - tackling this core issue, missing the point, and neglecting to “think the issue through”. In the paper, I trace the impact of the private sector on the public sphere by reviewing the major legal and political debates arising from the developments in global trade and investment. I exemplify this by referring to the 3d draft of the Free Trade Agreement of the Americas (FTAA) as a case study representative of a revolutionary trend in the development in international trade and investment law. I show that in order to contribute to a coherent, relevant, and legitimate international legal system, each polemic must as a primary condition of clarification tackle the identity of subject of international law. The first part of the paper discusses the private-public nexus in regards to trade and investment and its reflection in international law. It is followed by an analysis of the intersection between the private and public in the course of the development of international trade and investment law and asks the question whether the public is co-opting the private sector, or vice versa. This part, which forms the core of the paper is further divided in to sections examining whether trade and investment agreements are treaties or contracts and analysing their dispute settlement mechanisms by means of a sample of the most pressing problems: Privity of contract, juridicialization of arbitration, the meaning of appeal, the enforcement of international arbitral awards, and the question about the need for specialised legal institutions. The paper concludes with a call for a transdisciplinary discourse on the identity and definition of subject of international law. Such debate is invaluable as a prerequisite for a “principled” common ground upon which to establish a world rules-based governance.

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