Abstrak

Kembali

Much of the existing scholarship on international arbitration tends to emphasize the distinction between contract-based commercial arbitration and treatybased investment arbitration. This article identifies and discusses developments and concepts in the fields of commercial and treaty-based arbitration to argue that the real distinction today is not between commercial and treaty-based arbitral processes, but between mixed investor–State arbitration, including both contractual and treaty mechanisms on the one hand, and purely private commercial arbitration on the other. Although existing taxonomies may see them as being different species, both investment treaty arbitration and contractual arbitration between foreign investors and host States or State-owned entities belong to the same genus of international dispute settlement mechanism aimed at shielding cross-border investment flows from the political risk inherent in such transactions. In light of the hybrid nature of the relationship between foreign investors and host States implicating private rights and public authority, the genus of investomercial arbitration is characterized by an interplay of domestic and international law and escapes the rigid dichotomy between private and public dispute settlement processes.