A scathing piece in the LPE Blog on private lawyers and public interest caught my attention. Provocatively titled "Public Washing the Private Interest in International Interest Law", it explains the nature of private interest protected in ISDS as well as the legal force that propels it.
Besides the issue of public international law lawyers representing in ISDS cases, the blogpost framed the justification of ISDS on three narratives:
1. ISDS promotes development
2. ISDS promotes the rule of law
3. ISDS applies public law doctrines like proportionality that balances public interest with private interest.
I think all three narratives are debatable and can be subjected to intense debate depending on where you are located. Nevertheless, how future international investment treaties will be crafted, with what kind of exceptions will determine how relevant these narratives are. For the moment, the there is an intense debate and dichotomy of opinion on the claims of these narratives - will the narratives continue to hold sway with evidence or is the reality of the the market too determined to ensure the continuance of these narratives? Is the reality somewhere in the middle - the need to counter unbridled state arbitrariness with the recognition of the requirement sustainable investment for development?