Home » Articles » Recapturing Public Power: Is Investment Arbitration’s Engagement of the Public Interest Contributing to the Democratic Deficit?

Recapturing Public Power: Is Investment Arbitration’s Engagement of the Public Interest Contributing to the Democratic Deficit?

PDF · Barnali Choudhury · Jul-23-2012 · 41 VAND. J. TRANSNAT'L L. 775 (2008)

Globalization has changed the way sovereign states regulate their societies.  The effect of globalization has been the creation of several international agreements that transfer decision-making from the national to the international level.  An important subset of these agreements is international investment treaties; an estimated 2,500 of these treaties have been entered into worldwide by a number of states, especially in the last ten to twelve years.  As these agreements almost always contain arbitration clauses, the number and scope of arbitrations handling disputes under these investment agreements have grown exponentially.  Arbitrators governing these disputes are now regularly reviewing domestic public interest issues due to their expanded role.  In fact, in some cases arbitrators are effectively striking down national regulations.  The breadth of the regulatory powers of arbitrators in their review of national state decisions, regulations, and legislation has even caused some scholars to characterize investment arbitration as part of the evolving concept of global administrative law.  Concerns also arise with investment arbitration’s curtailment of democratic expression through its ability to counter a state’s sovereign decision-making authority.

This Article seeks to address these issues, initially by positing that the efficacy of investment arbitration decisions on public interest issues is limited by the lack of public participation.  The Article identifies in greater detail the features of investment arbitration, the elements of democracy and the democratic deficit, and the process and outcomes of investment arbitration that have implicated public interest issues.  It then explores suggested solutions to increase public participation in and accountability for the investment arbitration process, and to infuse non-investment related concerns into the outcomes of the traditionally private domain of investment arbitration.




Leave a Reply

ExpressO Top 10 Law Review

ANNOUNCEMENTS

We are pleased to announce the 2014-2015 Board of Editors and 2014-2015 Editorial Staff Members.

Please join us in congratulating the Vanderbilt Journal of Transnational Law 2013-2014 Annual Award Winners.

Coming up:

The Vanderbilt Journal of Transnational Law invites you to its 2015 Symposium, This is Not a Drill: Confronting Legal Issues in the Wake of International Disasters.

Recent and dire international disasters, both environmental and humanitarian, have left legacies not only of destruction and destitution, but also of an uncertain legal landscape. The Symposium will address current and pressing international-disaster-response topics. These will include environmental effects, disaster assistance, humanitarian assistance, and criminal processes and sanctions in the wake of various types of international disasters. Symposium participants will include leading scholars from across the country.

The 2015 Symposium will take place on Friday, February 13, 2015 at Vanderbilt Law School, 131 21st Avenue South, Nashville, TN 37203. A detailed schedule will be available soon.

For information on the 2015 Symposium, as well as past symposia hosted by the Journal, please visit the Symposium page.

Explore Other Vanderbilt Law Resources