Investment Contracts and International Law: Charting a Research Agenda

2020 ◽  
Vol 31 (1) ◽  
pp. 353-368
Author(s):  
Lorenzo Cotula
Keyword(s):  
International Law ◽  
Academic Writing ◽  
International Investment ◽  
Public Interests ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Protection ◽  
Policy Debates ◽  
Investment Law ◽  
Regulatory Powers

Abstract Investment contracts are an important part of the web of legal relations that underpin investment processes. They raise complex doctrinal issues, including with regard to their interface with public international law. The two books under review are part of a new surge in academic writing about investment contracts, in a field that is currently dominated by concerns about investment treaties and treaty-based arbitration. In this review essay, I explore the intersections between investment contracts and international law, engaging with the arguments presented in the two books and developing reflections based on trends in the wider literature. After situating the contract in academic and policy debates about international investment law, I compare the different approaches the two books embody – in relation to their scope, focus and format as well as the ways in which they conceptualize and piece together the multiple commercial and public interests at stake in investment contracting. I then discuss one theme that features prominently in both books – namely, the legal contours of investment protection, particularly in connection with stabilization clauses – and I examine its articulation with public regulatory powers. I conclude by outlining areas that deserve further exploration in scholarly work on investment contracts and international law.

Jurisdiction ratione temporis in International Investment Arbitration

2017 ◽  
Vol 16 (1) ◽  
pp. 139-158
Author(s):  
Andrea Gattini
Keyword(s):  
International Law ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Public International Law ◽  
Provisional Application ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Arbitration ◽  
Investment Law ◽  
The Law

Issues concerning the temporal scope of jurisdiction of international investment arbitration tribunals are attracting increased attention due to recent events, such as the denunciation of the icsid Convention by some states, the denunciation of bilateral investment treaties from which the tribunals draw their jurisdiction, or the provisional application of other treaties concerning investment protection. The solutions offered by most arbitral tribunals are in line with international customary rules on the law of treaties, a point which deserves attention as further proof of the cohesiveness of international investment law with public international law.

Der eigentumsrechtliche Wertschutz von Anteilsrechten

2021 ◽  
Author(s):  
Jörn Griebel
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
International Investment ◽  
European Convention ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Law ◽  
The Law ◽  
German Constitutional Law

Property protection is provided by national law as well as international law. The study seeks for an explanation regarding the divergent approaches to the protection of shareholders in cases of reflective loss provided for in German constitutional law and various fields of public international law. This is done by way of a comparison of the German approach with those found in the law of aliens, in the European Convention on Human Rights and under international investment law. This results in the finding that approaches of international law partly fail to establish the necessary bonds to recognized concepts of national law.

Globalization-Driven Innovation: The Investor as a Partial Subject in Public International Law

2014 ◽  
pp. 73-116 ◽  
Author(s):  
Tillmann Rudolf Braun
Keyword(s):  
International Law ◽  
International Investment ◽  
Public International Law ◽  
Intrinsic Nature ◽  
International Investment Law ◽  
Actual Nature ◽  
Corn Products ◽  
The Status ◽  
Investment Law ◽  
Investment Treaties

Given the current state of development of international investment law, it is surprising that, to date, neither the actual nature of the investor’s rights resulting from investment treaties, nor the possible consequences which arise for the investor, the states and international law, have been sufficiently defined. This is all the more astounding as the intrinsic nature and the possible limits of the investor’s rights are not only of theoretical interest, they are also decisive for the resolution of many substantial practical problems as well as for the positioning of international investment law within public international law. Furthermore, recent arbitration rulings concerning the fundamental question of whether the investor’s rights are of a direct, a derivative or a contingent nature, Archer Daniels (2007), Corn Products (2008) and Cargill (2009), demonstrate diametrically differing approaches. In this article, the author shows that neither the procedural nor material rights of the investor are simply derived from the home state but are – in clear contrast to the model of diplomatic protection – in fact to be understood as individual direct rights. The investor is elevated to the status of a (partial) subject in international law. Of course, the states are, and remain, the ‘masters of the treaties’ and can correct or even revoke them at any time with prospective effect. However, as long as investment treaties confer distinct rights on the investor, arbitral tribunals and states have to recognize these direct rights and the states must also accept that they can also be applied against them. The direct rights paradigm has varied and remarkable consequences for the investor, the states and modern public international law.

Part VI The Post-Award Phase, 30 A Practical Guide: Research Tools in International Investment Law

2018 ◽  
Author(s):  
Fouret Julien
Keyword(s):  
International Law ◽  
International Investment ◽  
International Court Of Justice ◽  
Stare Decisis ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Arbitration ◽  
International Court ◽  
Investment Agreement ◽  
Investment Law

This chapter aims to help the new investment arbitration practitioner identify and find the main legal sources for dealing with international investment law issues. Three different topics need to be addressed in order to cover, as extensively as possible, the legal issues generally raised during an arbitration based on an international investment agreement. First, even though the stare decisis rule does not exist in international arbitration, including investment arbitration, previous rulings are often used and analyzed by arbitrators. Second, when dealing with investment arbitration, it is likely that the claim will be treaty based. Finally, and most importantly, in international investment disputes, arbitral tribunals rely on all the sources of public international law identified in Article 38(1) of the Statute of the International Court of Justice, which provides for the Court to apply.

Attribution in International Investment Law

2020 ◽  
pp. 96-178
Author(s):  
Carlo de Stefano
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Critical Discussion ◽  
Single Test ◽  
Public International Law ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Law

Chapter III elucidates the application of attribution rules by international investment tribunals. This chapter is similar in structure to Chapter II, which is a consequence of the proximity of international investment law to public international law with regard to the topic of attribution of conduct to a party. In addition, this chapter contains critical discussion on investor–State dispute settlement (ISDS), chiefly on the dialectics between lex generalis (customary international law) and lex specialis (international investment law) as to the resolution of attribution issues, and on the distinction between treaty claims and contract claims for the purposes of the operation of so-called ‘umbrella clauses’. More generally, the chapter critiques the reasoning of arbitrators who have applied the test for attribution of conduct under ARSIWA Articles 4, 5, and 8 in a holistic way, rather than implementing each single test autonomously.

Interpretation in Good Faith and Its Relevance in International Investment Law

2021 ◽  
Vol 23 (1) ◽  
pp. 57-78
Author(s):  
Emily Sipiorski
Keyword(s):  
International Law ◽  
International Investment ◽  
Good Faith ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Protection ◽  
Future Value ◽  
Investment Law ◽  
Contractual Obligations ◽  
Behavioural Aspects

Abstract The principle of good faith drives forward the interpretation of provisions of international investment treaties. While the tribunal must interpret the treaty in good faith, the parties – as well as the tribunal – are also obliged to fulfil their treaty and contractual obligations in good faith. This creates a complex interplay of interpreting customary international law in the form of behavioural obligations. During this period of reconsideration of the system, these interpretative and behavioural aspects of the principle of good faith may provide an opening to a more cohesive system of investment protection. The following contribution approaches the tribunals’ power to interpret the good faith behavioural obligations of parties and considers its future value.

Evolution, Evaluation and Future Developments in International Investment Law

2021 ◽  
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Practical Importance ◽  
International Investment ◽  
Political Issues ◽  
International Investment Law ◽  
Investment Protection ◽  
Future Developments ◽  
Current Reform ◽  
Investment Law

The law on the protection of foreign investments is situated at the crossroads of international law and diplomacy in the context of a globalized economy. It is therefore not surprising that investment law has undergone fundamental changes in the last decade. The exponential growth of arbitration cases has illustrated a number of complex legal and political issues that have called into question the efficiency and legitimacy of investor State dispute settlement (ISDS). Thus, even for experts in the field it is challenging to keep track with the rapid and fundamental changes of what is often described as one of the most dynamic fields of international law. Against this background, the present volume provides an ‘Evolution, Evaluation, and Future Developments in International Investment Law’. World leading academics and practitioners shed light on the most important developments such as the evolution of investment law and its relationship to general international law, the practical importance of State contracts, the role of investment protection in the age of climate change, and current reform projects under the auspices of ICSID and UNCITRAL. The volume is based on six keynote speeches held at the 10 Year Anniversary Conference of the International Investment Law Centre Cologne.

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