International investment law goes further in disciplining States’ internal policy space than is commonly understood. This Article argues that investment treaties subtly constrain how nations organize and balance their internal systems of private law – including laws of property, contract, corporations, and IP. Problematically, they do so on a one-size-fits-all model, without regard for the wide variation in values undergirding these discrete legal institutions. Moreover, ISDS case-law exacerbates these constraints, unjustifiably distorting national private law arrangements. This hidden aspect of the system produces distinct problems of efficiency, fairness, and equitable distribution that have eluded critics and apologists alike.
Arato, Julian, The Private Law Critique of International Investment Law (2018). American Journal of International Law, volume 113, no 1 (2019, forthcoming).