LL.M. THESIS: The Role of Constitutional Courts in International Investment Law and Investment Treaty Arbitration: A Latin American Perspective

In: Max Planck Yearbook of United Nations Law Online
Juan Camilo Fandiño-Bravo
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Protection and promotion of foreign investment, one essential element of international economic relations and a cornerstone of the macroeconomic policy of developing States, like Latin-American States, is deemed to be undergoing a ‘legitimacy crisis’ that manifests itself in a generalized discontent by the system’s major stakeholders and some sectors of public society. One of the sources of such crisis can be found in the lack of a proper understanding of the nature of the system itself. After identifying the reasons why the problematiques of International Investment Law and Investment Treaty Arbitration are better understood as matters of public law, this work adopts a comparative public law approach to study the different ways in which Latin-American constitutional courts intervene in International Investment Law and Investment Treaty Arbitration, and outlines the major features of a proposed dialectic relation between constitutional courts and arbitral tribunals, in which constitutional courts can benefit from the study of the findings of arbitral tribunals regarding the nature and scope of substantive standards of protection, among others, in the process of reviewing the constitutionality of International Investment Agreements, and arbitral tribunals can use national constitutional doctrine as one among other public law sources in which to inform their task. The adoption of such an approach will assist in the reduction of the legitimacy gap of International Investment Law and Investment Treaty Arbitration, thus helping to overcome the crisis of the system.

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