Towards a republicanisation of international investment law?:Conceptualising the legitimatory value of public participation in the negotiation and enforcement of International Investment Agreements
The chapter takes a closer analytical look at one of the central manifestations of the currently changing character of international investment law as a politicised area of law, namely the increasing, and increasingly more formalised, opportunities for an active involvement of interested citizens and other private actors in the preparation, negotiation and subsequent enforcement of international investment agreements. We identify and illustrate practical examples of public participation in the investment treaty-making processes as well as the implementation mechanisms of investment agreements once entering into force. The chapter furthermore illustrates that the options for public participation as increasingly provided for in connection with these treaties are often, and in principle rightly, perceived as valuable means to foster the legitimacy of the regulatory features stipulated therein. Turning to the conceptualisation of this legitimatory value of public participation, it is argued that a closer look at its quasi-constitutional foundations reveals that this approach is most appropriately qualified as an alternative to, or surrogate for, democratic legitimacy that finds its overarching normative basis in the legal principle of republicanism and can thus be considered as a possible sign for a republicanisation of international investment law. Against this background, and adopting a more overarching perspective, we also present some thoughts on the usefulness and validity of a broader claim towards a republicanisation of international investment law as a normative ordering and guiding idea for conceptualising current trends in international investment law-making as well as for the future progressive evolution of this area of international economic law.