Investment Disputes Oltre lo Stato: On Global Administrative Law, and Fair and Equitable Treatment

Abstract

Global Administrative Law is an academic project that attempts to describe the emergence of a regulatory space beyond the state and to prescribe solutions to the problems it diagnoses through certain normative principles like participation, transparency, reasoned decision-making, judicial review, accountability, proportionality, and legitimate expectations. In the case of investment treaty arbitration, the principles advanced by Global Administrative Law are akin to the constitutive elements of the fair and equitable treatment that international arbitral tribunals have identified in investor-state disputes. As classified by international law scholars, these constitutive elements of fair and equitable treatment include due process, arbitrariness, non-discrimination, vigilance, legitimate expectations, stability and predictability, transparency, good faith, and proportionality. Incidentally, some of these principles have found conventional support in state practice. This Essay answers the question of whether this dogmatic similarity is a mere coincidence or proof of the influence exerted by the tenets of Global Administrative Law over the way the fair and equitable treatment clause has been construed. For that purpose, it briefly explains Global Administrative Law, its approach to investment treaty arbitration, and the fair and equitable treatment standard of international investment law.