Wednesday, 16 December 2009, 6.15pm
Campus Westend, Hörsaalzentrum HZ 3
Professor Dr. Dr. Rainer Hofmann, Johann Wolfgang Goethe-Universität
Modernes Investitionsschutzrecht.
Ein Beispiel für entstaatlichte Setzung und Durchsetzung von Recht?
Biographical sketch
Following professorships in Cologne (1994-1997) and Kiel (1997-2005), Rainer Hofmann has been Professor of Public Law, International Law and European Law in Frankfurt since 2005. The chief focus of his research is human rights, including refugee and minority rights, international business law, and issues concerning European integration. He is an active member of numerous national and international committees and associations. Recent publications: The European Union and WTO Doha Round (with G. Tondl) (2007); The International Convention on the Settlement of Investment Disputes (with C. Tams) (2007); Europäisches Flüchtlings- und Einwanderungsrecht: Eine kritische Zwischenbilanz (with T. Löhr) (2008).
Abstract
Investment protection law traditionally rested on customary norms of the law governing foreign nationals and on bilateral treaties which, in cases of disputes, provided for international dispute settlement procedures based on the right to grant diplomatic protection. The situation is fundamentally different in modern investment protection law. It rests on ca. 2,600 Bilateral Investment Treaties (BITs), which, in cases of disputes, grant private investors the right, on the basis of the investment contract itself, to initiate proceedings against the guest state before international arbitration tribunals. At present, around 300 such proceedings are pending. Modern BITs grant private investors material and procedural rights, thus making them into partial subjects of international law and contributing to a transformation of international law. International investment disputes are adjudicated by arbitration tribunals composed of judges appointed privately by the parties to the proceedings, hence also by private investors. This means that such disputes are no longer adjudicated by purely international dispute regulation mechanisms or by national courts, but by international arbitration tribunals with a decisive private involvement. Thus we must ask whether the process described can in fact be regarded as indicating a partial denationalisation of international law or a transformation of the primarily state-oriented character of international law.
