Sources of International Investment Law

2018 ◽  
Author(s):  
Jorge E. Viñuales
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
International Investment ◽  
The State ◽  
Conventional Theory ◽  
International Investment Law ◽  
Basic Understanding ◽  
Investment Law ◽  
Practical Implications

This chapter addresses the challenges posed by the practice of international investment law to the conventional theory of the sources of international law. After a brief overview of the main ‘sources’ of ‘international investment law’, the chapter examines three challenges to this basic understanding, which arise from the need to account for the domestic laws governing different aspects of foreign investment transactions, the detailed jurisprudential norms generated by investment tribunals to specify broadly formulated norms, and the norms of general international law expressing the sovereignty of the State. For each category of norms, the chapter selects several problems that put the most widely accepted understanding of the sources of international law to test. It then explains why the problems examined have potentially important practical implications. The chapter concludes with some observations on the interactions between practice and the theory of the sources of international law.

International Law and Foreign Investment in Hydroelectric Industry: A Multidimensional Analysis

2016 ◽  
Vol 18 (3-4) ◽  
pp. 183-222
Author(s):  
Attila Tanzi
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Multidimensional Analysis ◽  
Private International Law ◽  
International Investment Law ◽  
Investment Law ◽  
Domestic Law

The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation.

scholarly journals Interpretation of International Law by National Judges: Opportunities and Challenges. The Case of International Investment Law in Latin America

2018 ◽  
Vol 6 (1) ◽  
pp. 128
Author(s):  
Marcelo Lozada Gómez ◽  
Paola Acosta Alvarado
Keyword(s):  
Latin America ◽  
International Law ◽  
Foreign Investment ◽  
Subject Matter ◽  
International Investment ◽  
International Investment Law ◽  
Domestic Courts ◽  
Investment Law ◽  
Fragmentation Of International Law

The role of national judges in international law is still an undecided subject matter. Most scholars consider the decisions from national judges merely as acts of States, denying the possibility that those judgments constitute an autonomous source of international law. This position is grounded in the idea that national judges do not regularly employ sources of international law, and therefore, their opinion about them is not quite important. Nevertheless, recent phenomena have highlighted and triggered the intervention of national judges regarding the interpretation and enforcement of international law. The growing scope of international rules, which now regulate intra-states issues, as well as the fragmentation of international law, and the internationalisation of national orders, inter alia, have demanded domestic courts’ intervention in order to face these changes and avoid undesirable consequences. In this context, this article aims to: 1. bring an outlook on the evolution of the role assigned to national judges; 2. explore the phenomena that triggered their intervention; 3. analyse the outcomes of this increasing participation, namely how national judges change the usual dynamics of interpretation and evolution of international law; 4. apply these ideas to explain the intervention of national judges in Latin America regarding the enforcement of foreign investment law; and 5. conclude with some remarks about the future of this relationship between national and international law as well as the importance of a better understanding of the role of national judges.

scholarly journals A Comparison with Analysis of the SADC FIP before and after Its Amendment

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Tinashe Kondo
Keyword(s):  
South Africa ◽  
International Law ◽  
Foreign Investment ◽  
First Generation ◽  
International Investment ◽  
Human Rights Law ◽  
International Investment Law ◽  
Before And After ◽  
Recent Trends ◽  
Investment Law

Discourses on rights, duties and obligations predominantly take place within the context of constitutional, administrative and human rights law. In the last decade these debates have also begun to take place in international investment law, an "autonomous branch" of international law. The main debate centres on the adequacy and sustainability of investor-centred regulatory regimes which provide more rights than obligations to investors. The 2006 Southern African Development Community Finance and Investment Protocol (SADC FIP) was a typical example of such a regime. It offered antiquated protections which were characteristic of first generation Bilateral Investment Treaties (BITs). The result was that some countries, such as South Africa, opted not to conform to this binding instrument, which did not match their progressive vision of foreign investment. It is against this backdrop that the SADC FIP was recently amended. The amendment, balances the rights and obligations of investors and state parties to some degree, and moves towards sustainable foreign investment. However, this paper argues that more still needs to be done to modernise the document in line with more recent trends.

International Investment Law, Hybrid Authority, and Jurisdiction

2019 ◽  
pp. 430-454
Author(s):  
Edward Guntrip
Keyword(s):  
International Law ◽  
International Investment ◽  
The State ◽  
International Investment Law ◽  
Transnational Law ◽  
Competition State ◽  
Role Of The State ◽  
The Common ◽  
Investment Law

This chapter discusses the extent to which contemporary approaches to jurisdiction can be applied to hybrid exercises of state and non-state authority in international investment law. Relying on theories of relative authority and transnational law, it demonstrates that jurisdiction needs to be reformulated to capture exercises of hybrid authority in international law. If jurisdiction cannot address hybrid authority, it will continue to overlook significant exercises of authority within international investment law. Based on how hybrid authority functions in international investment law, the chapter then highlights that the role of the state in international law has altered from being a welfare state to a competition state. Yet, the jurisdictional framework has not adapted to the altered function of the state. Hence, despite the common use of hybrid authority in international investment law, it cannot be accommodated within the jurisdictional framework.

3 The Foundations of International Investment Law

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
Host Country ◽  
Home Country ◽  
International Investment ◽  
The State ◽  
Customary International Law ◽  
International Investment Law ◽  
Legitimate Interests ◽  
General Principles Of Law ◽  
Investment Law

This chapter examines the state of international investment law that exists in the absence of an applicable treaty, as that law remains an important foundation for the international law governing investments. One of the purposes of law is to protect the legitimate interests of persons, groups, and states, and to provide a mechanism for resolving disputes when those interests are in conflict. In any international investment transaction, there are three primary parties in interest: the investor, the host country in which the investment is made, and the home country of the investor. Each party ordinarily uses laws and legal devices to advance its perceived interests. The chapter then explores the sources of international law, as well as customary international law and general principles of law governing international investment. It also looks at customary international law on expropriation and breach of state contracts.

Attribution in International Law and Arbitration

2020 ◽  
Author(s):  
Carlo de Stefano
Keyword(s):  
International Law ◽  
International Investment ◽  
The State ◽  
International Treaties ◽  
Legal Personality ◽  
International Investment Law ◽  
General Terms ◽  
International Investment Agreements ◽  
Investment Law ◽  
International Law Commission

This book aims to clarify, critically discuss, and propose solutions for the application of international rules of attribution of conduct to States under public international law and international investment law. In a nutshell, the issue is that of the applicability of the principles of ‘attribution’ to States of acts that are in breach of their obligations under international custom or international treaties, with a focus on their commitments pertaining to the treatment of foreign investors under international investment agreements (IIAs), mostly bilateral investment treaties (BITs), and their application by arbitral tribunals. Of special interest and the object of extensive debate within this context is the responsibility of States when the alleged breach has been committed not by the State itself through its organs, but by entities which have separate legal personality under domestic law, which, nevertheless, may engage the responsibility of the State under international law, such as State-owned enterprises (SOEs). The book addresses the relevant issues in a systematic way, approaching them first in general terms on the basis of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) on attribution, finalized by the International Law Commission (ILC) in 2001, and proceeding thereafter to the specifics of international investment law, based on an accurate examination of the law, practice, and case law, with full knowledge and consideration of the academic debate. To this extent, the book submits that the general principles on attribution are fully applicable within international investment law, which is not a closed system governed by different principles, and that tribunals have to apply them as they generally do.

Diligentia quam in suis as a Technique for a Contextual Application of the Full Protection and Security Standard: Considering the Level of Development of Host States in International Investment Law

2020 ◽  
Vol 28 (4) ◽  
pp. 596-611
Author(s):  
Nitish Monebhurrun
Keyword(s):  
International Law ◽  
International Investment ◽  
Due Diligence ◽  
Foreign Investors ◽  
International Investment Law ◽  
Local Means ◽  
Security Standard ◽  
Maximum Protection ◽  
Investment Law ◽  
Full Protection

With international investment law as the background to this study, the present article examines how the full protection and security standard can be construed from the perspective of developing states hosting foreign investments. The research delves into classical public international law to argue that the diligentia quam in suis rule can be used as a means of interpretation to strike a balance between foreign investors’ and developing states’ interests when construing the full protection and security standard. The rule provides that any expected due diligence from the state party is necessarily of a subjective nature. This means that developing host states must deploy their best efforts to offer maximum protection to foreign investors not on an in abstracto basis but as per their local means and capacity. Accordingly, the standard is presented as an adaptable and flexible one which moulds its contours as per the level of development of the host state. Such flexibility does not imply condoning states’ abuse and negligence. The article explains how the diligentia quam in suis rule enables a conciliation between the full protection and security standard and the host state's level of development while rationalising the standard's application to developing nations.

scholarly journals Private Actors, Public Goods and Responsibility for the Right to Water in International Investment Law: An Analysis of Urbaser v. Argentina

2018 ◽  
pp. 1-24
Author(s):  
Edward Guntrip
Keyword(s):  
Water Supply ◽  
International Law ◽  
International Investment ◽  
Human Right ◽  
Public And Private ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Law ◽  
The Right ◽  
Water Supply Services

International investment law balances public and private interests within the broader framework of international law. Consequently, when water supply services, which constitute a public good, are privatized and operated by foreign investors, questions arise regarding whether foreign investors could be held responsible for the right to water under international law. This article considers how the tribunal in Urbaser v. Argentina allocated responsibility for compliance with the right to water between the host State and the foreign investor when resolving a dispute over privatized water services. It highlights how the tribunal in Urbaser v. Argentina supports different understandings of public and private based on whether the human rights obligation is framed in terms of the duty to respect or protect. The article argues that the tribunal’s rationale overcomplicates the process of allocating responsibility for violations of the human right to water when water supply services have been privatized.

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