MJIEL Vol 13 Issue 2 2016 - Article 6 by Taida Begić Šarkinović

Investor-State Arbitration:
Between Private and Public Interests
 
Taida Begić Šarkinović
 
ABSTRACT: This article focuses on the ongoing heated debate that questions the legitimacy of Investor-State arbitration and outlines the approaches that can accommodate the interests of the parties to investment disputes. It addresses the relevance of transparency in relation to confidentiality as a competing value stressing the need to better take into account the public interest nature of investment disputes. Investors are increasingly using international investment agreements as instruments to challenge changes to the State’s regulatory regime. As a result, treaty-based investment arbitration has affected different policy areas. Investment arbitral tribunals judge the legality of government actions and this aspect of investor-State arbitration has important public policy implications. At the same time, the geopolitical environment is changing with gradual change in capital flows. As a consequence, it has become a politically sensitive topic causing public mistrust towards the ISDS system. The article thus suggests that the more balanced approach should ensure independence and fairness for both states and investors

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