Dispute Resolution under FTAs, EPAs and BITs: National Courts, Bilateral Tribunals, or Arbitration and the Emergence of Private Rights in Public International Law

Prof. McAlinn, Gerald Paul
Professor of Law
Keio University

Traditionally, private parties had virtually no rights under public international law as this was deemed to be within the sole province of nation states. An aggrieved third party national would, of necessity, be required to seek redress through national courts, or appeal to the country of his, her or its nationality, which would then consider a variety of available routes ranging from doing nothing, through informal discussions, through attempted resolution in public international law fora, such as the International Court of Justice and the WTO. This system began to break-down in the second half of the 20th century with the emergence of human rights and has now extended to the protection of private foreign party investment rights. While having recourse to dispute mechanisms outside the national courts of developing nations undoubtedly facilitates and encourages needed private investment, it does present certain challenges to sovereignty and the local growth and infrastructure. This paper will explore some of the issues common to FTAs, EPAs and BITs entered into by Japan with other Asian countries, especially as they pertain to law and development, and to larger trends towards the privatization of public law.