Global Administrative Law Perspective for Investment Treaty Arbitration

Although Investment Treaty regime is criticized due to its unreasonable size of the dispute amount, the need of this system is indisputable. Critics say that private investors wield greater influence on hosting states. This paper suggests looking into a trend of global governance and administrative law approach to enhance the legitimacy of the regime. A majority number of investor-state arbitration includes disputes of a public area. Arbitration tribunals such as ICSID still mainly apply commercial or private law standards to review their cases. In the Argentina crisis cases, the arbitrators first found that the investors have successfully shown FET and Umbrella Clauses have been violated and thereafter all those decisions were surprisingly annulled. Van Harten defines international treaty arbitration can be considered in a way, a system of public law adjudication if it satisfies four basic requirements of accountability, openness, coherence, and independence. According to Alec Stone Sweet, ICSID is presently in the initial phase of judicialization, which includes greater reliance on precedents regarding reasoning and justification, as well as more accepting to third party amicus briefs to enhance transparency. He sees an arbitrator of investor-state disputes is not merely the agent of the contracting parties but can be meaningfully conceptualized as an agent of the transnational commercial and investment community. Therefore some notable scholars characterize investment arbitration as global administrative law. There is a view that investment treaty arbitration, especially investor-state arbitration forms part of a governance structure, and it helps create emerging new global administrative law. From the notable investment treaty cases five possible requirements are derived under Fair and Equitable Treatment: (1) Stability, Predictability and Consistency; (2)The Protection of Confidence and Legitimate Expectations; (3) Transparency; (4) Reasonableness and Proportionality; (5) Administrative Due Process and Denial of Justice. Although global public administrative law approach is normative and not yet confirmed in reality, it is clear that identifying the emergence of public law aspects of international investment treaty arbitration is no other than an effort to make the treaty arbitration enhancement to the future.