El derecho aplicable al fondo: un debate ausente en las propuestas de reforma al mecanismo de resolución de disputas de las inversiones extranjeras

Abstract

The mechanism of international investment arbitration, which historically developed within public international law, has received much attention in recent decades, but its relationship with private international law has been mostly neglected. The modern international investment claims regime faces reform discussions that often center around criticisms of the current arbitration practice; however, a key issue remains unaddressed: the nature of the substantive law applicable to foreign investments. This article is centered on this crucial matter, as the absence of a proper regulatory framework limits the ability of adjudicators (regardless of whoever and however appointed) to produce reliable precedents. It focuses on the critical matter of the applicable substantive law, with its intricacies, complexities, and nuances. Given that there is no realistic hope for the negotiation, much less the ratification, of a universal instrument to deal with this matter comprehensively, the focus can and must shift to current evolution in relevant areas of law related to foreign investments. Given the impressive advancements in public and private international law and international arbitration, the author argues for better interdisciplinary dialogue to effectively address the complexities of the law applicable to foreign investments.