L'arbitrage impliquant les personnes publiques : tendances et perspectives
This study investigates the difficulties that arise when legal disputes between public bodies and foreign private entities are resolved through arbitration. For economic expediency, some Western states and developing countries are quite open to the idea of resolving legal disputes by submitting to arbitration proceedings. Other countries, such as Latin America and the Arab world, have a clearly hostile approach to state participation in arbitration proceedings, ranging from total prohibition to conditional submission.   There is a clash between two schools of thought: the privatist approach that considers international arbitration to be the business community’s natural forum, as opposed to the statist approach according to which only state courts are qualified to consider legal disputes between public bodies and private entities.   The underlying reasons for the increased flexibility of certain governments in favor of a liberal move towards public law arbitration are a result of the globalizing effect of the economy, which tends to decimate domestic state laws within the framework of the new global economic order. On the other hand, the social, financial and legal consequences of arbitration awards render some governments resistant to arbitration involving public entities. They brandish the right to self-determination of peoples to guard against the depletion of their resources to the detriment of the economic, social and cultural rights of their populations. This is despite the fact that foreign direct investment plays a considerable role in the development of emerging countries.  The ultimate aim of this study is to explore different avenues for striking a fair balance between public interests and the protection of private investments. This requires a paradigmatic change so as to take into account the multiple dimensions of legal disputes between the state and investors.
Arbitrage international International arbitration Subjective arbitrability Arbitration and investment treaties International responsability of States Investor-state legal disputes