The Legitimacy of Investment Arbitration

Empirical Approach ◽

Law Firms ◽

Investment Arbitration ◽

Excessive Compensation

International investment arbitration remains one of the most controversial areas of globalisation and international law. This book provides a fresh contribution to the debate by adopting a thoroughly empirical approach. Based on new datasets and a range of quantitative, qualitative and computational methods, the contributors interrogate claims and counter-claims about the regime's legitimacy. The result is a nuanced picture about many of the critiques lodged against the regime, whether they be bias in arbitral decision-making, close relationships between law firms and arbitrators, absence of arbitral diversity, and excessive compensation. The book comes at a time when several national and international initiatives are under way to reform international investment arbitration. The authors discuss and analyse how the regime can be reformed and ow a process of legitimation might occur.

1 Introductory Chapter: Arbitrating Transnational Corruption

10.1093/law/9780198714262.003.0001 ◽

2014 ◽

Author(s):

Llamzon Aloysius P

Keyword(s):

Decision Making ◽

International Law ◽

Investment Arbitration ◽

This introductory chapter sets out the book's two main purposes: first, to study the phenomenon of corruption in international investment, the growing movement under international law to prevent and criminalize such behaviour, and its relationship with international investment law and arbitration; and second, to develop a working framework for investment arbitration decision-making when issues of corruption arise. An overview of the subsequent chapters is also presented.

Requirements for Amicus Curiae Participation in International Investment ArbitrationA Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15

The Law and Practice of International Courts and Tribunals ◽

10.1163/15718034-12341262 ◽

2013 ◽

Vol 12 (3) ◽

pp. 365-390 ◽

Cited By ~ 1

Author(s):

Christian Schliemann

Keyword(s):

International Law ◽

Recent Attempt ◽

Arbitral Tribunal ◽

Amicus Curiae ◽

Legal Rules ◽

Investment Arbitration ◽

Legal Standard ◽

Abstract The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.

International Investment Arbitration

10.1093/law/9780199676798.001.0001 ◽

2017 ◽

Author(s):

McLachlan Campbell ◽

Shore Laurence ◽

Weiniger Matthew

Keyword(s):

International Law ◽

Present State ◽

Critical Review ◽

Comprehensive Description ◽

Investment Treaty ◽

Investment Arbitration ◽

Author Team ◽

Substantive Law ◽

Investment Treaty Arbitration

This is the long-awaited second edition of this widely-referenced work on the substantive law principles of investment treaty arbitration. It forms a detailed critical review of the substantive principles of international law applied by investment arbitration tribunals, and a clear and comprehensive description of the present state of the law. The first edition met with immediate success as a result of the authors’ achievement in describing and analysing the volume of law created, applied and analysed by tribunals. The second edition is fully updated to take account of the arbitration awards rendered in the period since 2007. Written by an internationally recognised author team, it is now the most comprehensive and up to date work in its field and no practitioner or academic can afford to be without it.

ICSID Arbitration and the Importance of Public Accountability of a Private Judicature – A Roman Law Perspective

International Community Law Review ◽

10.1163/187197407x192923 ◽

2007 ◽

Vol 9 (1) ◽

pp. 59-102 ◽

Cited By ~ 2

Author(s):

Frederic Gilles Sourgens

Keyword(s):

International Law ◽

Civil Procedure ◽

Customary Law ◽

Roman Law ◽

Public Accountability ◽

Investment Treaty ◽

Investment Arbitration ◽

AbstractThis article explores the problems of public accountability in current investment law practice. These problems arise from the private interpretation of international investment treaty and customary law in arbitration. It analyses these problems through the historical lens of Roman law and the Roman law tradition in international law. It suggests a Praetorian system of international accountability and explores the remarkable similarities between current investment arbitration and classical Roman civil procedure.

Chorzów Factory – intellectual property and the continuity of international law in investor-state dispute settlement

10.31228/osf.io/2f3u9 ◽

2020 ◽

Author(s):

P. Sean Morris

Keyword(s):

Intellectual Property ◽

Property Rights ◽

International Law ◽

Intellectual Property Rights ◽

Dispute Settlement ◽

Investment Arbitration ◽

Fair Compensation ◽

One of the most important cases in the jurisprudence of international law – Chorzów Factory – has a hidden secret, so much so that, even when in plain sight, legal post-mortems of the case fail to mention this well-kept secret. Chorzów Factory was about intellectual property rights, specifically patents and trade secrets, and this narrative has never been fully addressed. When the developments in international investment law and arbitration are fully considered it is worth looking back at Chorzów Factory to associate it with new streams of contemporary investor-state disputes that include issues such as intellectual property rights. Because Chorzów Factory has established the full reparation standard for unlawful expropriation, the standard has enabled a continuity of international law and underscores its importance for contemporary investment arbitration. However, the intellectual property narrative of Chorzów Factory has been neglected, and, in this article, I want to develop the intellectual property narrative of Chorzów Factory and to demonstrate the nexus between fair compensation, intellectual property rights and the continuity of international law.

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

10.1093/law/9780198758082.003.0030 ◽

2018 ◽

Author(s):

Fouret Julien

Keyword(s):

International Law ◽

International Court Of Justice ◽

Stare Decisis ◽

Public International Law ◽

Investment Arbitration ◽

International Court ◽

Investment Agreement ◽

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.

The Vienna Convention as Authority for the Use of Precedent as Customary Practice in International Arbitrations of Oil Concessions and Investment Disputes in North Africa and the Gulf Arab States; or a Lex Mercatoria for a Lex Petrolea

The Journal of World Investment & Trade ◽

10.1163/22129000-01405006 ◽

2013 ◽

pp. 918-940

Author(s):

Mary B. Ayad

Keyword(s):

International Law ◽

Customary Law ◽

Vienna Convention ◽

Commercial Arbitration ◽

Investment Treaty ◽

Investment Arbitration ◽

General Principles Of Law ◽

Western Law ◽

Lex Mercatoria

General principles of law are a valid source of law for arbitral tribunals. The Vienna Convention1 allows recourse to general principles of law. In Bilateral Investment Treaty (hereinafter “BIT”) interpretation but also in International Commercial Arbitration (hereinafter “ICA”)/International Investment Arbitration (“hereinafter “IIA”), arbitrators can be guided by the Vienna Convention2 and in so doing may refer to a number of ‘rules’ and norms of ‘international law’ applicable to the relations between states, such as those mentioned herein including principles drawn from the lex mercatoria or other types of international customary law, e.g. the principle of pacta sunt servanda, which honours contracts between states and investors, as well as the principle of precedent. Additionally, they may refer to customary norms from other jurisdictions that can harmonise with Western law.

Equity-Based Decision-Making and the Fair and Equitable Treatment Standard: Lessons From the Argentine Investment Disputes – Part I

The Journal of World Investment & Trade ◽

10.1163/221190012x627610 ◽

2012 ◽

pp. 210-255

Author(s):

Srilal M. Perera

Keyword(s):

Decision Making ◽

International Law ◽

Treatment Standard ◽

International Investment Agreements ◽

Fair And Equitable Treatment ◽

Investment Law ◽

Equitable Treatment ◽

Investment Agreements

In Part I of this two-part article the author examines the foundations for equity-based decision-making under international law and their relevance to resolving contemporary investment disputes based on the Fair and Equitable Treatment standard (FET standard). He contends that equity-based decision-making in the past has been rare, and in such instances adjudicators have been extremely restrained because of the propensity for subjective judgments. However, in the modern day application of equitable considerations in a large number of investments disputes before the International Centre for Settlement of Investment Disputes (ICSID) seeking relief based on the FET standard, the decisions have mostly been inconsistent and conflicting, leading often to inexplicable and excessive remedies. In no other line of cases has this trend been more demonstrated than in the investment disputes following the Argentine economic crisis. They point more to the serious anomalies and omissions and interpretive issues in International Investment Agreements (mostly BITs) which require remedial measures if international investment law itself is to advance.

Challenges to the Assessment of Damages Claims Involving Crypto-Assets in Investment Arbitration

Global Jurist ◽

10.1515/gj-2019-0044 ◽

2020 ◽

Vol 20 (2) ◽

Author(s):

Aveek Chakravarty

Keyword(s):

International Law ◽

Foreign Investments ◽

Investment Protection ◽

Investment Treaty ◽

Investment Arbitration ◽

Asset Classes ◽

Distinct Features

AbstractThis article addresses the particular challenges involved in valuing various types of crypto-assets as investments under treaty-based investment arbitration. The interaction of the international investment protection regime with crypto-investments has largely remained un-examined, even though increasing amounts of foreign investments have flown into the development of crypto-assets its related markets. The existing investment treaty regime is set to face significant challenges in grappling with crypto-assets as investments due to several distinct features that differentiate them from traditional asset classes. This issue is explored further in the article from the perspective of the principles governing damages under international law.

Demystifying Moral Damages in International Investment Arbitration

The Law and Practice of International Courts and Tribunals ◽

10.1163/15718034-12341430 ◽

2020 ◽

Vol 19 (3) ◽

pp. 417-450

Author(s):

Simon Weber

Keyword(s):

International Law ◽

General Overview ◽

Investment Arbitration ◽

Uniform Solution

Abstract Claims for compensation of material damages in investment arbitration are well known – they are part of every dispute. Tribunals deal extensively with such claims and do not accord much attention to another type of damages: moral damages. Until today, no uniform solution has been found. There seems to be stark disagreement between arbitral tribunals on how to deal with a claim for moral damages. This article sheds light on moral damages and proposes a possible solution under international law. To this end, it introduces the concept of moral damages and its history in international disputes. After having set out such general overview, it then applies the concept to investment arbitration by analysing five issues arbitral tribunals have been faced with when confronted by a claim for moral damages. Finally, it comments on the most prominent awards and provides an outlook for a possible solution.