‘Shared Responsibility’ : Stopping the Irresponsibility Carousel for the Protection of Public Interests in International Investment Law

The interaction between private and public in international investment law and investor-state arbitration raises the question of who (arbitral tribunals, home states, host states, investors, or international organisations active in the field of foreign investment) should be responsible for protecting public interests, both under the existing investment regime as well as under the various reform initiatives in the field. Resolving this question faces a significant collective action problem that is connected to the decentralised structure of the investment treaty regime in which every class of actor is able to pass on the responsibility for protecting public interests on to another class of actors. The papers calls this situation an ‘irresponsibility carousel'. To address this collective action problem, the paper suggests having recourse to the idea of ‘shared responsibility' for the protection of public interests. This concept is used to indicate the idea of primary obligations for the protection of public interests that are incumbent upon all actors in the international investment regime (arbitral tribunals, home states, host states, investors, and international organisations active in the field of foreign investment), and that no class of actors can escape