The Investment Treaty System as Judicial Review

Abstract

The nature of the emerging investment treaty system has become central in addressing many open questions in international investment law and policy. The current debate, however, seems to revolve around taking side in the clash between granting maximum protection to foreign investors and safeguarding host States’ ability to regulate in the public interest. In order to put forward a methodology capable of properly balancing investment protection and the sovereign right to regulate, the paper suggests conceptualizing the investment treaty system through the lens of judicial review. The paper’s central argument is that the nature of the investment treaty system is (and should be) at its core, the establishment of a transnational legal framework for the control of public decision-making at the domestic level for the immediate benefit of foreign investors. The paper then proceeds with applying the ‘judicial review’ conceptualization to two specific issues dealing with the ‘scope’ and ‘standards’ of review carried out by investment tribunals on the basis of investment treaties. With regard to the scope of review, the paper addresses the issue of amenability to review under investment treaties of situations involving ‘contracts’ between the host State and the foreign investor. With regard to the standards of review, the paper focuses in particular on the issue of the intensity of the review carried out by investment tribunals. The aim here is to show the merits and implications of adopting a judicial review conceptualization to the investment treaty system.