Public Interest and International Investment Law: A Critical Perspective on Three Mainstream Narratives

• Autores: Alessandra Arcuri, Federica Violi
• Localización: Handbook of International Investment Law and Policy / Julien Chaisse (aut.), Leïla Choukroune (aut.), Sufian Jusoh (aut.), 2021, ISBN 9811336148, págs. 2185-2210
• Idioma: inglés
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• Resumen

  • The question whether the system of international investment law (IIL) promotes or stifles public interest has been the subject of heated scholarly and policy debates. To fend off mounting critiques against IIL, several narratives have been deployed to portray the system as capable of promoting and protecting public interest. In this chapter, we identify and critically analyze three such narratives. The first two narratives are justificatory and present the IIL system as furthering public interest by enhancing development and the rule of law. Our analysis exposes the points of strains and contradictions of both narratives. The third narrative is reconciliatory, focusing attention on legal techniques for weighing competing interests, whereby the central goal of protecting foreign investors interests can be reconciled with public interest. In this context, we look at proportionality analysis and how it has been constructed by arbitration tribunals as a weighing technique and, as such, as an entry point for public interest in investment arbitration. We show that also this narrative rests on ambiguous foundations. Our brief analysis of case law shows how, in practice, the technocratic pen of arbitrators has too often erased the voice and agency of the public. By exposing the points of strain of mainstream narratives, this chapter contributes to open up new space to foreground the interest of marginalized publics.