EL DERECHO APLICABLE AL FONDO: UN DEBATE AUSENTE EN LAS PROPUESTAS DE REFORMA AL MECANISMO DE RESOLUCIÓN DE DISPUTAS DE LAS INVERSIONES EXTRANJERAS1

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.