Public and Private in International Investment Law: An Integrated Systems Approach

Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private law and public international law from private international law. In light of these overlaps, the regime should instead be analyzed from an integrated systems perspective. This approach better comports with the regime’s complex interlocking nature. It is also better suited to the pragmatic challenge of accommodating the conflicting claims of diverse stakeholders within the confines of an outmoded but rapidly evolving legal schema. I illustrate this with concrete examples of minor interventions at three different levels of the regime that could produce major shifts in the prevailing balance between investor and non-investor rights at other levels of the regime. I argue that this strategy represents at once a more feasible and more sensible means of improving international investment law than other alternatives