Stephan W. Schill (ed.). International Investment Law and Comparative Public Law

2012 ◽  
pp. 583-602
Author(s):  
Rhea Tamara Hoffmann
Keyword(s):  
International Investment ◽  
Public Law ◽  
International Investment Law ◽  
Investment Law

‘Beware: Boundary Crossings’ – A Critical Appraisal of Public Law Approaches to International Investment Law

2016 ◽  
pp. 171-228 ◽  
Author(s):  
José E. Alvarez
Keyword(s):  
International Law ◽  
Organizational Structures ◽  
International Investment ◽  
Public Law ◽  
Vienna Convention ◽  
International Investment Law ◽  
Boundary Crossings ◽  
Treaty Interpretation ◽  
Investment Law ◽  
International Law Commission

This article addresses the tools by which international lawyers engage in interpretative ‘boundary crossings’ across distinct international regimes, such as those involving trade, investment, and human rights. It distinguishes the traditional tools of treaty interpretation, such as those licensed by the Vienna Convention on the Law of Treaties (VCLT), that encourage interactions between trade and international investment law (such as the VCLT’s Article 31(3)(c), from some more innovative interpretations now proposed by self-identified ‘public law’ scholars. Drawing on examples of boundary crossings pursued recently by investor-state arbitrators and the International Law Commission, it warns against interpretative boundary crossings that go against the object and purpose, remedies or organizational structures of the underlying regimes. It argues that such interpretative linkages, however well-meaning, may not be as ‘progressive’ as anticipated.

LL.M. THESIS: The Role of Constitutional Courts in International Investment Law and Investment Treaty Arbitration: A Latin American Perspective

2014 ◽  
Vol 18 (1) ◽  
pp. 667-745
Author(s):  
Juan Camilo Fandiño-Bravo
Keyword(s):  
Latin American ◽  
Essential Element ◽  
International Investment ◽  
Public Law ◽  
Constitutional Courts ◽  
Economic Relations ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Investment Treaty Arbitration

Protection and promotion of foreign investment, one essential element of international economic relations and a cornerstone of the macroeconomic policy of developing States, like Latin-American States, is deemed to be undergoing a ‘legitimacy crisis’ that manifests itself in a generalized discontent by the system’s major stakeholders and some sectors of public society. One of the sources of such crisis can be found in the lack of a proper understanding of the nature of the system itself. After identifying the reasons why the problematiques of International Investment Law and Investment Treaty Arbitration are better understood as matters of public law, this work adopts a comparative public law approach to study the different ways in which Latin-American constitutional courts intervene in International Investment Law and Investment Treaty Arbitration, and outlines the major features of a proposed dialectic relation between constitutional courts and arbitral tribunals, in which constitutional courts can benefit from the study of the findings of arbitral tribunals regarding the nature and scope of substantive standards of protection, among others, in the process of reviewing the constitutionality of International Investment Agreements, and arbitral tribunals can use national constitutional doctrine as one among other public law sources in which to inform their task. The adoption of such an approach will assist in the reduction of the legitimacy gap of International Investment Law and Investment Treaty Arbitration, thus helping to overcome the crisis of the system.

The Limits of the Comparative Public Law Methodology in International Investment Law: An Australian Case Study

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Alexander Ferguson
Keyword(s):  
International Investment ◽  
Public Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Australian Case ◽  
Legitimate Expectations ◽  
Investment Law ◽  
Equitable Treatment

Government conduct is increasingly reviewable by investment treaty tribunals. These tribunals often consider whether a host state has failed to afford fair and equitable treatment by defeating a foreign investor’s legitimate expectations. To discern what a foreign investor can legitimately expect, some tribunals use a comparative public law methodology that draws on domestic public law. Using Australian law as a case study, I suggest that the comparative public law methodology may not be able to achieve all of its aims.

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