Tratados de inversión y mutación del Derecho público

¿Derecho público transnacional?

Abstract

We refer to Transnational law ordinarily in the fields of commercial and civil law, but also increasingly in relation to the field of public law.
The article intends to point out the differences that exist in both fields, since public law (constitutional and administrative) has been built balancing the conflicts between the interests and rights of the private persons and entities and the public values and interests that tend to prevail, but not at all costs. The criteria and rules for making a balance between each of those rights, interests and values is what characterizes the internal public laws, heirs of a centuries-old tradition and practice.
When the so-called transnational law, largely built initially in the field of commercial arbitration and private law, is extended to public law, largely thanks to investment protection treaties with awards and decisions that are issued by arbitration courts, not only can result in an externalization of the jurisdiction in favour of arbitration, but also of the substantive rules related to the merits of the case, that may contradict internal substantive rules, including the Constitutions, as well as the very system of the balancing criteria of values, interests and rights that has characterized the construction of internal public rights.
The article intends to highlight the evolution of this growing process of jurisdictional (in arbitral tribunals) and substantive outsourcing (in rules whose application may end up prevailing over the Constitution itself ), as well as the most recent developments that the CETA Treaty has meant, correcting many problems of this outsourcing, although also generating new ones. In any case, this transnational law is here to stay and we should be aware of both its effects, defects and consequences, trying to ensure that its reception is not uncritical.