Are IIAs old-fashioned? How consistency in the use of public policy fosters the object and purpose of investment agreements

Public policy is a multi-faceted concept employed in many instances, and yet no one knows exactly where the term may lead us. While under the New York Convention divergent interpretations of the public policy exception, which are due to the essential self-judging character of the exception, are partially resolved by growing consensus to interpret the exception narrowly as international public policy, arbitration under the International Centre for Settlement of Investment Disputes is still plagued by obscurities and inconsistencies with regard to its use. The question is how to avoid decisions such as Metal-Tech v. Uzbekistan where access to international adjudication is impaired by the application of principles of domestic public policy. This article therefore elucidates the meaning and scope of the public policy exception. It focuses, in particular, on the lack of any explicit reference to public policy exceptions in the ICSID Convention, together with inconsistent case law, and proposes a renewed concept of public policy that addresses the current uncertainties and obscurities leading to the arbitrary use of the exception.