International Investment Arbitration

Comprehensive Description ◽

Investment Treaty ◽

Investment Arbitration ◽

Author Team ◽

Substantive Law ◽

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.

THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS AND INVESTMENT TREATY ARBITRATION: A LIMITED RELATIONSHIP

International and Comparative Law Quarterly ◽

10.1017/s0020589315000354 ◽

2015 ◽

Vol 64 (4) ◽

pp. 905-933

Author(s):

Jarrod Hepburn

Keyword(s):

International Law ◽

Public Law ◽

Private Law ◽

Applicable Law ◽

Investment Protection ◽

Investment Treaty ◽

Investment Arbitration ◽

General Principles Of Law ◽

Domestic Law ◽

AbstractThe UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers the use of the Principles by investment tribunals on questions of both domestic law and international law. It suggests that reference to the Principles can play an important legitimating role on questions of domestic law, but that this should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

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 ◽

Investment Law

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.

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.

Non-treaty Claims in Investment Treaty Arbitration

Leiden Journal of International Law ◽

10.1017/s092215651700053x ◽

2017 ◽

Vol 31 (1) ◽

pp. 59-91

Author(s):

BERK DEMIRKOL

Keyword(s):

International Law ◽

Dispute Settlement ◽

International Treaty ◽

Exclusive Jurisdiction ◽

Investment Treaty ◽

Investment Agreement ◽

Legal Entitlement ◽

AbstractThis article explores the conditions under which it is possible to bring claims based on non-international investment agreement (IIA) norms of international law in investment treaty arbitration. For that purpose, it analyzes in the first instance broad dispute settlement clauses incorporated in IIAs that make reference to the settlement of ‘any investment dispute’. Such clauses grant jurisdiction to investment treaty tribunals to hear non-IIA claims. However, at least two additional conditions need to be satisfied for the investor to bring a self-standing claim based on a non-IIA norm of international law. First, the non-IIA instrument (a contract or another international treaty) may include a dispute settlement clause envisaging exclusive jurisdiction in favour of another forum. Second, the investor's standing to bring a claim based on a non-IIA norm of international law depends on whether this norm attributes any legal entitlement in the benefit of the investor.

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.

Through the looking glass: The UNCITRAL Rules on Transparency and what they reveal about theories of investment treaty arbitration

10.26686/wgtn.17007421 ◽

2021 ◽

Author(s):

◽

Johanna McDavitt

Keyword(s):

International Law ◽

Public Interest ◽

Commercial Arbitration ◽

Public International Law ◽

The Public ◽

Investment Treaty ◽

Investment Arbitration ◽

Theoretical Conception ◽

Looking Glass ◽

<p>This paper aims to use the transparency debate within investment arbitration, and specifically the discussions of Working Group II when preparing the UNCITRAL Rules on Transparency, as a lens to examine how the international community conceptualises investment arbitration. It will argue that investment arbitration is no longer viewed as a private system of dispute resolution akin to international commercial arbitration. Rather, the public interest, public international law, and regulatory nature of investment arbitration is increasingly coming to the fore. Accordingly, the consent of the parties is no longer at the heart of arbitral authority. This paper aims to identify what alternate theoretical conception of investment arbitration is driving transparency initiatives in investment arbitration.</p>

Hersch and Elihu Lauterpacht and the relevance of private law sources for international law: from theory to practice against the background of international law's evolution and the adoption of the Unidroit Principles

Uniform Law Review ◽

10.1093/ulr/unab015 ◽

2021 ◽

Author(s):

Andrea Marco Steingruber

Keyword(s):

International Law ◽

International Institute ◽

Private Law ◽

Investment Treaty ◽

Investment Arbitration ◽

Theory To Practice ◽

Settlement Agreement ◽

Object Of Study ◽

Year 2000 ◽

Abstract Private law sources in international law were a main object of study of Sir Hersch Lauterpacht, who is considered one of the greatest international lawyers of the last century. In his time, the International Institute for the Unification of Private Law’s Principles of International Commercial Contracts (PICC) did not exist. The first version of the PICC was only published in 1994, more than three decades after his death. In the year 2000, the disputing parties of an investment treaty arbitration case concluded before a tribunal chaired by his son, Sir Elihu Lauterpacht, a settlement agreement dated 20 March 2000, which would later be embodied in an International Centre for Settlement of Investment Disputes Additional Facility arbitral award issued by the tribunal on 18 September 2000, where they incorporated slightly modified PICC provisions. The present article will argue that private law sources are still important in certain areas of international law, such as investment arbitration. In investment arbitration, they are not only important in presence of contracts but they can also arguably be useful for the interpretation of treaties. Investment tribunals have indeed recognized the importance of the PICC for both the interpretation of contracts (transnational agreements) and the interpretation of treaties (international agreements).

3 Modern Reparation Doctrine in International Law and Investment Treaty Arbitration

10.1093/acprof:oso/9780199601189.003.0003 ◽

2011 ◽

Cited By ~ 1

Author(s):

Sabahi Borzu

Keyword(s):

International Law ◽

20Th Century ◽

International Justice ◽

General Assembly ◽

Investment Treaty ◽

Investment Arbitration ◽

Un General Assembly ◽

International Law Commission ◽

Law Commission ◽

This chapter traces the doctrine of reparation in contemporary international law and, in particular, in investment treaty arbitration. It discusses in detail the two significant developments which mark the evolution of the doctrine of reparation during the 20th century: the decision of the Permanent Court of International Justice in the Factory at Chorzów case, and the work of the International Law Commission (ILC) on the law governing the responsibility of States for internationally wrongful acts, which culminated in draft articles adopted by the UN General Assembly and recommended to States. It examines the application in investment arbitration of the principles of reparation found in these two sources, and discusses certain fundamental concepts relating to reparation and their pertinence to the particular nature of investment treaty arbitration, particularly the concept of the ‘hypothetical position’.

Part II The Jurisprudence on Corruption in International Investment Arbitration: Case and Trend Analysis, 5 The Scope of Inquiry: Treaty vs. Contract 'Investment Arbitration'

10.1093/law/9780198714262.003.0005 ◽

2014 ◽

Cited By ~ 1

Author(s):

Llamzon Aloysius P

Keyword(s):

Trend Analysis ◽

Dispute Settlement ◽

Commercial Arbitration ◽

International Commercial Arbitration ◽

Investment Treaty ◽

Investment Arbitration ◽

This chapter analyzes the nature of international investment arbitration and how that modality of dispute settlement differs from international commercial arbitration. The most obvious difference between investment and commercial arbitration is the nature of the parties' consent to arbitrate. In contract-based commercial arbitration, consent is expressed in a mutual, largely contemporaneous exchange of promises to bring a present or future dispute to arbitration. But in investment treaty arbitration, the host State's consent is usually expressed as an open offer of arbitration for all nationals of the counterparty State to the investment treaty. Investment arbitration proceedings also operate at high levels of transparency relative to commercial arbitration.

Part V Remedies and Costs, 26 Third-party Funding in Investment Treaty Arbitration

10.1093/law/9780198758082.003.0026 ◽

2018 ◽

Author(s):

Blackaby Nigel ◽

Wilbraham Alex

Keyword(s):

Third Party ◽

Access To Justice ◽

Investment Treaty ◽

Investment Arbitration ◽

Legal Costs ◽

Party Funding ◽

This chapter discusses the issue of third-party funding in international investment arbitration. Third-party funding has become an established part of the investment arbitration landscape. Despite criticism in some quarters, tribunals and international arbitral bodies have tended to favour the view that third-party funding promotes access to justice rather than encouraging frivolous claims. Tribunals have consistently held that receipt of third-party funding is unlikely to affect a claimant’s position from a jurisdictional perspective and will not affect a claimant’s ability to recover legal costs in cases where tribunals make costs awards. The costs of third-party funding itself may be recoverable in some circumstances. There is a growing tendency among tribunals to require disclosure by funded claimants of the existence and identity of third-party funders. It is, however, unlikely that claimants will commonly be required to disclose the terms of any funding agreement except in rare cases when security for costs is being considered.