The Last Citadel! Can a State Claim the Status of Persistent Objector to Prevent the Application of a Rule of Customary International Law in Investor–State Arbitration?

2010 ◽  
Vol 23 (2) ◽  
pp. 379-400 ◽  
Author(s):  
PATRICK DUMBERRY
Keyword(s):  
International Law ◽  
International Investment ◽  
Actual State ◽  
Customary International Law ◽  
International Investment Law ◽  
State Practice ◽  
The Status ◽  
Investment Law ◽  
Judicial Recognition ◽  
Do So

AbstractLike all rules of customary international law, those existing in the field of international investment law are binding on all states. According to the theory of the persistent objector, however, a state is not bound by a rule if it objected to it in the early stages of its formation and continued to do so consistently thereafter. This paper analyses the different grounds of criticism that have been raised against the concept. We found that there is only very weak judicial recognition of the concept, that there is no actual state practice supporting it, and that it is logically incoherent. Specifically, this paper argues that the concept should not be successfully used in investor–state arbitration proceedings to prevent the application of a custom rule by an arbitral tribunal. This is essentially because of the great importance of the few custom rules existing in that field and the fact that they represent universally recognized values.

3 The Foundations of International Investment Law

2015 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
World War Ii ◽  
International Law ◽  
International Investment ◽  
World War ◽  
International Investments ◽  
Customary International Law ◽  
Enforcement Mechanism ◽  
International Investment Law ◽  
General Principles Of Law ◽  
Investment Law

This chapter examines the state of customary international law governing international investments, that is, the law that exists in the absence of an applicable treaty. Following World War II, such law for most investors was incomplete, vague, contested, and without an effective enforcement mechanism, meaning that investors and their home governments needed to find another way to protect investments of their nationals. This would lie in negotiating investment treaties. Topics covered include state and investor interests shaping international investment law; the sources of international law; customary international law and general principles of law governing international investment; customary international law on expropriation and breach of state contracts; challenges to Western views on international investment law; and deficiencies of customary international law on investment.

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.

scholarly journals Moral Damages as an ‘Exceptional’ Remedy in International Investment Law – Re-Connecting Practice with General International Law

2021 ◽  
Vol 81 (4) ◽  
pp. 937-968
Author(s):  
Robert Christoph Stendel
Keyword(s):  
International Law ◽  
International Investment ◽  
State Responsibility ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Law ◽  
The Individual ◽  
Inter State

Moral damages under international investment law have been extensively addressed in the literature. Notoriously, arbitral tribunals have subjected any claim for moral damages to a requirement unknown to general international law, that is exceptional circumstances. This practice is widely criticised in the field mainly due to the seeming inconsistency with general international law. This article challenges this view by arguing that a deviation from general international law does not – in and of itself – suffice to discard the tribunals’ approach. This argument is based on the insight that general international law only deals with inter-State responsibility and is, thus, open to deviations from general international law in case of State responsibility vis-à-vis the individual. On that basis, the article explores possible legal bases for exceptional circumstances in international law. While it discards the idea that such a requirement for awarding moral damages is implicit in prior inter-State cases, the article rather argues that the arbitral practice witnesses the emergence of a new rule of customary international law applicable to the responsibility of a State vis-à-vis the individual. Thereby, the article seeks to contribute to the wider debate on the content and contours of State responsibility for claims of the individual.

4 Restitution

2011 ◽  
Author(s):  
Sabahi Borzu
Keyword(s):  
International Law ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
Rightful Owner ◽  
Legal Situation ◽  
Specific Performance ◽  
The Status ◽  
Investment Law ◽  
Disproportionate Burden

This chapter focuses on one form of reparation in international law: restitution. Restitution requires the re-establishment of the situation that had existed before the commission of an internationally wrongful act or the status quo ante. Though restitution has been recognized as the primary remedy in international law, practical limitations have minimized its use in international investment law. Here, the power of tribunals to award restitution in international law and the enforceability of such awards are discussed. The two general forms of restitution are then explored: firstly, material restitution, which includes the restitution of property and of money wrongfully taken from a rightful owner; and, secondly, juridical restitution, which requires restoring the legal situation that existed before the commission of the wrongful act, and includes specific performance. The doctrines of impossibility and disproportionate burden are also discussed with their limiting effect on restitution.

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.

scholarly journals Power-Conferring Treaties: The Meaning of ‘Investment’ in the ICSID Convention

2011 ◽  
Vol 24 (2) ◽  
pp. 305-330 ◽  
Author(s):  
TONY COLE ◽  
ANUJ KUMAR VAKSHA
Keyword(s):  
International Law ◽  
International Investment ◽  
Central Importance ◽  
International Convention ◽  
Customary International Law ◽  
International Investment Law ◽  
Treaty Interpretation ◽  
Investment Law ◽  
Potential Impact ◽  
Traditional Understanding

AbstractIt is now standard in contemporary international law commentary to note that the latter part of the twentieth century has seen a move away from the traditional understanding of international law as fundamentally based on the consent of states. As just two examples, customary international law has in some contexts become more influential than treaties and human rights obligations are now recognized as often binding states even when they have signed no treaty acknowledging their existence. Treaty interpretation, by contrast, has remained focused upon the parties to a treaty, with even textualist approaches to treaty interpretation justified as the best means of ascertaining the intent of the contracting states. The purpose of the present article is to highlight the existence of a subset of treaties for which even a teleological approach to interpretation fails to capture the central importance for the treaty of entities other than the contracting states. These ‘power-conferring treaties’ do not merely entrust tribunals with the power to effectively fashion the means by which a treaty's goals should be achieved. To varying degrees, they grant control of the treaty itself, including, at times, both its enforcement and the very meaning of its terms, to entities other than the contracting states. As a result, the traditional emphasis in treaty interpretation on the ‘object and purpose’ of the treaty, and the precise language in which the treaty is written, will fail to generate an interpretation that faithfully captures the manner in which the treaty genuinely functions. The article then illustrates the potential impact of the power-conferring nature of a treaty through an analysis of the meaning of the term ‘investment’ in the International Convention for Settlement of Investment Disputes. This is one of the most controversial topics in contemporary international investment law, with an enormous impact upon the jurisdiction of ICSID arbitral tribunals. It is argued that recognizing the power-conferring nature of the ICSID Convention provides an enhanced understanding of the way in which this term should be interpreted.

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