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52 Va. J. Int'l L. 57 (2011-2012)
Enhancing International Investment Law's Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach

handle is hein.journals/vajint52 and id is 62 raw text is: Enhancing International Investment Law's
Legitimacy: Conceptual and Methodological
Foundations of a New Public Law Approach
STEPHAN W. SCHILL*
Numerous crides quesdon the legitimay of internadonal investment law and
investor-state arbitration, arguing that this field of law and dispute resolution
presents a threat to foundadonal principles of domesdc public law, including
democray   and the rule of law. Many of these crides therefore demand
institutional reform, and some states follow suit, by recrafting international
investment treades and restricting investor-state arbitradon. In response to this
backlash, this Article proposes to react to the challenges international
investment law poses for domesic public law values in a more construeive
fashion. Instead of demanding the recrafting of international investment law, or
even the abolishment of investor-state arbitraion, in order to vindicate public
law values, this Artide recommends an expansion ofpublc law thinking within
the existing structure of investment treaty arbitration itself To this end, it
outlines the conceptual and methodological foundadons of a new pubic law
approach to international investment law, which arguably has the potential to
enhance the acceptance and legidmay of internadonal investment law as a
whole. The Artcle suggests that international investment law and investment
treay  arbitration should be conceptualZed as public law     discplnes and
integrated into a public law model that transcends territorial borders. Investment
treaties should be interpreted, investor-state disputes resolved, and system-
internal reform proposed by recourse to public law thinking and a spefic public
law method, namely comparative public law. According#, problems arising in
* Senior Research Fellow, Max Planck Institute for Comparative Public Law and International
Law, Heidelberg; Rechtsanwalt (admitted to the bar in Germany); Attorney-at-Law (New York);
LL.M. in European and International Economic Law (Universitit Augsburg, 2002); LL.M. in
International Legal Studies (New York University, 2006); Dr. iur. (Johann Wolfgang
Goethe-Universitit Frankfurt am Main, 2008). I would like to thank Armin von Bogdandy, Juan
Pablo Bohoslavsky, Marc Jacob, and Michael Waibel for comments on earlier versions of this Article.
This Article is based on my earlier work, Intemadonal In*stment Law and Compaaive Pubkc Law - An
Intmduedon, in INTERNATIONAL INVESTMENT LAW AND COMPARATIVE PUBLIC LAW 3 (Stephan W.
Schill ed., 2010).

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