The principle of access to justice is very dominant in the enforcement of the protection of the public interests in International Investment Agreements (IIAs). Protection against fundamental rights of the local community is often ignored in the establishment of IIAs. In order to strike a balance between the protection of investors and the public interests of the host state, the principle of access to justice plays a pivotal role. However, it would be argued that the upholding of this principle needs an integrative legal thinking both in the substantive and procedural levels. Integrative legal thinking which is also known as non-compartmentalized legal thinking, as promoted by Prof. Pieter H.F. Bekker, insists a balance protection of private and public interests in investment dispute settlement which involve multiple stakeholders. The fragmented approach may lead to pro investor bias and impede the enforcement of access to justice, especially for the civil communities which are also harmed as a result of the implementation of the investment. This article examines the concept of the integrative legal thinking and its relevant recent practice. It also argues that integrative or non-compartmentalized legal thinking is considered as a prominent factor to uphold the principle of access to justice in investment dispute settlement in order to protect not only the contracting parties, but also the local community or third party affected by the investment.
Fifi Junita, University of Airlangga, Indonesia
Stream: Law 8. Dispute Resolution: Contemporary Approaches
This paper is part of the ACPEL2016 Conference Proceedings (View)
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