1 Introductory Chapter: Arbitrating Transnational Corruption

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.

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

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.

Moral Damages in International Investment Disputes – On the Search for a Legal Basis and Guiding Principles

10.1163/22119000-01401001 ◽

2013 ◽

pp. 1-43

Author(s):

Lars Markert ◽

Elisa Freiburg

Keyword(s):

International Law ◽

Controversial Issues ◽

Legal Basis ◽

Public International Law ◽

Investment Arbitration ◽

Legal Nature ◽

Investment Law ◽

Insight Into

This article sets out to examine the legal nature of and the requirements for granting moral damages in international (investment) law. In doing so, we will consider various general public international law and investment law cases. We will place a particular emphasis on the former, since they provide a valuable platform for the analysis of the origins of moral damages and an exploration of how international tribunals have dealt with moral damages under different circumstances. The more recent investment arbitration cases provide a useful insight into several controversial issues arising out of the arbitral tribunals’ holdings. We will develop a proposal as to how moral damages should be characterized doctrinally and show that nowadays moral damages claims are generally accepted in investment law, despite still existing uncertainties regarding their scope and application.

Jurisdiction ratione temporis in International Investment Arbitration

The Law and Practice of International Courts and Tribunals ◽

10.1163/15718034-12341345 ◽

2017 ◽

Vol 16 (1) ◽

pp. 139-158

Author(s):

Andrea Gattini

Keyword(s):

International Law ◽

Bilateral Investment Treaties ◽

Public International Law ◽

Provisional Application ◽

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.

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

Queen Mary Journal of Intellectual Property ◽

10.4337/qmjip.2020.02.02 ◽

2020 ◽

Vol 10 (2) ◽

pp. 179-199

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.

The Arbitrator as a Lawmaker: Jurisgenerative Processes in Investment Arbitration

10.1163/22129000-01405003 ◽

2013 ◽

pp. 829-851 ◽

Cited By ~ 2

Author(s):

Catharine Titi

Keyword(s):

International Law ◽

International System ◽

Customary International Law ◽

Investment Arbitration ◽

Investment Law ◽

International Adjudication ◽

Rule Setting

With the exponential growth of international adjudication fora and of the number of known disputes submitted to them, the international system of investment dispute resolution has taken centre stage and has been placed in a unique position from which to formulate international investment law. At the heart of this system, the arbitrator possesses considerable ‘jurisgenerative’ powers that span over different aspects of the rules governing investment, from treaty provisions relating to jurisdictional and substantive standards to the interpretation of relevant rules of customary international law and the development of new treaty models. The article considers this de facto role of the arbitrator in investment rule-setting by canvassing arbitral interpretation as a jurisgenerative process per se, and by exploring its impact on future treatymaking.

The Rise of Common Principles for Investment in Latin America: Proposing a Methodological Shift for Investor-State Dispute Settlement

10.1163/22119000-12340006 ◽

2016 ◽

Vol 17 (4) ◽

pp. 614-633 ◽

Cited By ~ 1

Author(s):

José Gustavo Prieto Muñoz

Keyword(s):

Latin America ◽

International Law ◽

Latin American ◽

Dispute Settlement ◽

Critical Approach ◽

Investment Arbitration ◽

Investment Law ◽

The 19Th Century

The present article argues for the need of an alternative way of thinking about international investment law and investor-State disputes in Latin America. The article explains how the current critical approach to foreign investment comes from a conceptual trajectory that originated in the 19th century with the work of Carlos Calvo, inspired in turn by Emer De Vattel’s conceptual model for international law, and how a principles discourse would be a viable alternative for enhancing the legitimacy of investment arbitration. The article further structures such a principles discourse in three clusters: general principles recognised by Latin American nations; principles compatible with concepts developed by investment arbitrators, and regional principles not yet recognised by international investment arbitrators. The last cluster contains in particular principles such as transparency and inclusion that ought to be the core of a Latin American discourse as the limit of the authority granted to investment arbitrators.

The Autonomy of eu Law and International Investment Arbitration

Nordic Journal of International Law ◽

10.1163/15718107-088010003 ◽

2019 ◽

Vol 88 (1) ◽

pp. 41-64

Author(s):

Panos Koutrakos

Keyword(s):

International Law ◽

Trade Agreements ◽

Open Approach ◽

Eu Law ◽

Policy Context ◽

Investment Arbitration ◽

Investment Law ◽

Investment Agreements

This article argues that, in the context of international investment law, the principle of autonomy need not be construed as broadly as the recent judgment in Achmea suggested. The Court’s approach in this case is formalist, inward looking and hostile to the harmonious co-existence between eu and international law. The article argues, however, that this conception of autonomy should be confined to the specific legal and policy context of investment agreements between Member States of the Union. A careful reading of Achmea supports this view. There are also sound conceptual, legal, and policy reasons that militate for a more open approach to autonomy when it comes to the Union’s trade agreements with third countries.

The Formation and Identification of Rules of Customary International Law in International Investment Law

10.1017/cbo9781316481479 ◽

2016 ◽

Cited By ~ 4

Author(s):

Patrick Dumberry

Keyword(s):

International Law ◽

Customary International Law ◽