Independent and neutral resources for effective, efficient arbitration hearings in New York City
The ½-day ITA-ASIL Conference is presented annually by the ITA Academic Council with the American Society of International Law (ASIL) immediately preceding the ASIL Annual Meeting. Scholarship is a hallmark of this conference.
Disputes involving States parties have evolved from their traditional State-to-State paradigm. Today investment and commercial arbitrations between States or State-owned entities and private actors have become increasingly common and, by their nature, invoke questions of public international law (PIL). This conference explores the extent to which PIL’s foundational principles have influenced international arbitrations involving sovereign entities.
Sources of PIL are at the foundation of investment treaty arbitration. The regime largely emanates from treaties; its substantive protections against expropriation and the international minimum standard of treatment derive from custom; and the application of these standards to concrete cases involves reference to general principles of law to fill substantive and procedural gaps. The relationship between PIL and investment arbitration has evolved over time calling into question whether PIL remains integral to investment arbitration and whether the field is moving away from its foundational principles. How has State responsibility evolved under PIL and ISDS jurisprudence and are these evolutions occurring in parallel or moving in different directions? What influence will international conventions and modern jurisprudence from international courts, such as those relating to human rights, environmental, social, and governance (ESG) standards, have on the decisions of arbitral tribunals? And what are the potential future trajectories of ISDS in light of these changes?
At the same time, the classical divide between public and private international law is being blurred as PIL plays an increasingly significant role in commercial arbitrations involving State parties. Commercial arbitrations are themselves becoming more reliant on public international law for questions of attribution, sovereign defenses of necessity and national security, and even to discern and apply the governing law. What are the implications of this shift, and how does this convergence challenge the traditional public-private international law divide?
The result of these phenomena is that public international law is increasingly descending into commercial disputes, whether based in treaty or contract. On the one hand, this has given increased application, expression and texture to international law principles that might otherwise have lay dormant, but it has also stretched the traditional scope of public international law beyond its original State-to-State origins. Through this lens, the conference will discuss these developments in investment and commercial arbitration, questioning whether, and how, such changes should be resisted or embraced.
