Arbitration in International Economic Law

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Arbitration in International Economic Law

Luis Ramirez-Daza1

1. Introduction This paper discusses the evolving relationship between arbitration and international economic law (IEL) particularly the role that arbitration performs as an effective method to rule international economic disputes. The primary aim of this work is to address, in a nutshell, questions related to when, why and how arbitration and international economic law have become intrinsically interfaced, the scope and current implementation of arbitral proceedings in some areas of IEL as well as to indicate a number of challenges that the wave of international arbitrations are prompting, challenges that somehow could undermine its effectiveness and suitability as a consensual third party intervention vesting with the authority to adjudicate international economic disputes 2. Adjunct Professor at St Mary’s Law School in San Antonio, Texas. This paper deals with the role of international arbitration in the province of the IEL, i.e., the arbitral proceedings in international economic treaties such as the World Trade Organization, Free Trade Agreements, Investment Agreements, among others. Therefore, it does not focus on international commercial arbitration, which chiefly operates between private actors in transnational business. It follows that the approach of this research is rather public than privateoriented. Accordingly, the term “international economic law” does not encompass all international legal topics that have economic relevance. Some scholars support the idea that IEL covers all international dealings that are economic in nature and others postulate a more restricted scope from the perspective of public international law. At present, it is the latter approach that prevails at large. In fact, along with some important identities and intersections, there are crystal-clear differences between the legal nature, institutions, rules, and techniques utilized in international economic law that differs from those governing transnational transactions between private parties. As to the distintion and backgrounds of public and private international arbitration see: Michael Chapman, The Interlaced History of Public and Commercial International Arbitration 1794 to 1999, in International Alternative Dispute Resolution: Past, Present and Future, Kluwer Law International, 2000, pp 75-90; Pierre Lalive, Problemes Relatives a L’ Arbitrage International Commercial, ACDI, Recueil des Cours, 1967, Tome 120, pp 576-582; Michael Mustill, The History of International Commercial Arbitration, in The Leading Arbitrators’ Guide to International Arbitration, Juris Publishing, 2008, pp 1-30 and Gary B Born, International Commercial Arbitration Wolters Kluwer, 2010, Vol.1 pp 7-90. With regard to the composite legal nature of investor-state arbitration see: Francois Rigaux, Souveraineté des Etats et Arbitrage Transnational, in Le Droit des Relations Economiques Internationales, Litec, Paris, 1982 pp 261-279; Stephen J. Toope, Mixed International Arbitration, Grotius Publication, 1990, pp 1-13; Bernardo M. Cremades, Clarifying The Relationship Between Contract and Treaty Claim in Investor-State Arbitration, 3 Business Law International, 2003, pp 207-211; Charles Leben, La Théorie du Contrat d’Etat et L’Evolution du Droit International des Investissements, ACDI, Recueil des Cours, Tome 302, 2003, pp 209-386; Horacio Grigera Naón, Les Contrats d’Etats: Quelques Reflexions, 3 Revue d’ Arbitrage, 2003, pp 667-690; Douglas Zachary, The Hybrid Foundation of Investment Treaty Arbitration, 74 The British Yearbook of International Law, 2004, pp 151-289; Gus Van Harten, The Public-Private Distinction in International Arbitration Against The State, 56 International and Comparative Law Quarterly, 2007, pp 371-394, and J. Schokkaert /Y Heckscher Investment Contracts between Sovereign States and Privates Companies, 11 The Journal of World Investment & Trade No 6, 2010, pp 903-965. Regarding the scope of IEL: Georg Schwarzenberger; The Province and Standards of International Economic Law, 2 The International Law Quarterly, 1948, pp 402-420; Ernst-Urlich Petersmann, Constitutional Functions and Constitutional Problems in International Economic Law PUPIL 3, 1991, pp1-71; John H. Jackson, Economic Law, International, in Encyclopedia of Public

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LIMA ARBITRATION N° 4 - 2010 / 2011

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