Balancing the Public and the Private in International Investment Law and Arbitration

This chapter considers the intricate relations between the public interest embodied by host states and the private interest of foreign investors. While international investment law is often conceived of as favouring investors’ interests at the expense of public interest, the chapter argues that due consideration has always been granted to public interest in this regime and that public interest is likely to play an increasing role in the future. From that perspective, this chapter analyzes the relations between public and private interests both in states’ treaty practice and arbitration practice. More precisely, it explains how conventional practice can be viewed as crystallizing a balancing between public and private interests and examines the tools that are available to arbitration tribunals to balance these interests. In this respect, the chapter discusses the notion of legitimate expectations, proportionality, precedent, and jurisprudence constante