论文题目 Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System

作者         Anthea Roberts

作者单位 London School of Economics and Political Science; Visiting Professor, Columbia Law School

刊物名称 American Journal of International Law

刊物期别 January, 2013

所属领域 国际投资法

内容简介 In the view of the author, the investment treaty system is like a platypus. Investment treaties are clearly creatures of public international law. However, they are distinct from most public international law treaties because the vast majority of them permit investors to bring arbitral claims directly against host states based on procedural rules and enforcement mechanisms. Accordingly, the system grafts private international law dispute resolution mechanisms onto public international law treaties.

Investment treaties have traditionally been short and vaguely worded, while the system as a whole is new and undertheorized. As a result, participants routinely draw on comparisons with other legal fields when seeking to fill gaps, resolve ambiguities, or understand the system's nature.

The author deploys the term analogy to capture the use of individual cases or principles from other legal fields (see in part I) and the term paradigm to capture more general, structural comparisons between legal fields (see in part II). 

This article provides the groundwork for the efforts to offer a normative theory of what the investment treaty system is or should become by laying out an architectural framework for understanding competing conceptions of the investment treaty system based on comparisons with public international law, international commercial arbitration, domestic public law, and international public law (in particular, international trade law and international human rights law). And by identifying multiple paradigms and exposing the assumptions underlying them, the author hopes to make those engaged in the field more self-conscious about their own approaches and open to seeing the system through different lenses.