The Investment Arbitration between Italy and Cuba: The Application of Customary International Law under Scrutiny

2012 ◽  
Vol 11 (3) ◽  
pp. 499-524
Author(s):  
Enrico Milano
Keyword(s):  
International Law ◽  
Present Article ◽  
International Investment ◽  
The State ◽  
Customary International Law ◽  
Special Regard ◽  
Investment Arbitration ◽  
Diplomatic Protection ◽  
Arbitral Proceedings ◽  
Bilateral Treaties

Abstract The present article describes the arbitral proceedings in the investment dispute between Italy and Cuba, with special regard for the Final Award rendered in 2008. The arbitration has raised a number of interesting issues in the application of customary international law, including the admissibility of claims in diplomatic protection in investment disputes under a BIT, the application of the rule on the exhaustion of local remedies, the attribution of acts of State-owned enterprises to the State and the use of general international law as a means to interpret treaty provisions defining the scope of the BIT. Some of these aspects have proved particularly controversial, as shown by the thorough dissenting opinion attached by arbitrator Tanzi, and they are critically analysed. The arbitration confirms the profound interdependence of bilateral treaties and customary international law in international investment arbitration.

scholarly journals The Governance of Foreign Investment at a Crossroad: Is an Overlapping Consensus the Way Forward?

Global Jurist ◽  
2015 ◽  
Vol 15 (1) ◽  
pp. 1-28 ◽  
Author(s):  
Nicolás M. Perrone
Keyword(s):  
Foreign Investment ◽  
Developed Countries ◽  
International Investment ◽  
Overlapping Consensus ◽  
Customary International Law ◽  
Multilateral Cooperation ◽  
Rights Protection ◽  
Investment Arbitration ◽  
Property Rights Protection ◽  
Bilateral Treaties

AbstractThis article makes the claim that the present efforts to reform the international investment regime (IIR) will not save this field from the existing criticisms. Given the plural values at issue, it is unlikely that states – let alone local populations – will ever reach a consensus on the substantive questions surrounding foreign investment. Historically, the main characteristic of foreign investment governance has been the lack of multilateral consensus. This field remained dominated by diplomacy and customary international law until bilateral treaties and investment arbitration became the leading mechanism to resolve investment disputes in the 1990s. This highly legalized regime, however, has been subject to criticisms from developing and increasingly from developed countries. Most reform proposals fail to go beyond alternatives that have been unsuccessful in the past, such as a multilateral investment agreement (MIA) or state-to-state arbitration. This article takes a different approach to foreign investment governance, starting from its political economy. It claims that the IIR does not depoliticize foreign investment relations but rather promotes the politics of foreign investors’ property rights protection. Relying on property theory and pluralism as heuristic tools, this article analyses the resistance to investment arbitration, the obstacles to multilateral cooperation, and the possibility of an overlapping consensus on the institutions for foreign investment governance.

scholarly journals The Potential Impact on Investment Arbitration of the ILC’s Work on Customary International Law

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 188-192 ◽  
Author(s):  
Jeremy K. Sharpe
Keyword(s):  
International Law ◽  
National Court ◽  
The United States ◽  
International Investment ◽  
Customary International Law ◽  
Progressive Development ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
International Adjudication ◽  
Investment Agreements

A primary goal of the International Law Commission’s work on the identification of customary international law is to offer “guidance to those called upon to identify the existence of a rule of customary international law,” particularly national court judges. The ILC report, however, should be no less useful to participants in international adjudication. The report’s impact might be particularly significant in investment arbitration, which, given the field’s growing importance and impact, could greatly facilitate the ILC’s principal mandate of promoting the “progressive development of international law.”Investment arbitration is proving hugely significant for the development of international law. The United Nations Conference on Trade and Development reported that, at the end of last year, there were 568 known cases brought under international investment agreements, including 57 cases brought in 2013 alone. There have been 98 different State respondents, including the United States, which reportedly is the ninth most frequent respondent State.

The Arbitrator as a Lawmaker: Jurisgenerative Processes in Investment Arbitration

2013 ◽  
pp. 829-851 ◽  
Author(s):  
Catharine Titi
Keyword(s):  
International Law ◽  
International System ◽  
International Investment ◽  
Customary International Law ◽  
International Investment 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.

Arbitral Praeliminaria – Reflections on the Distinction between Admissibility and Jurisdiction after BG v. Argentina

2016 ◽  
Vol 29 (1) ◽  
pp. 137-153
Author(s):  
FRIEDRICH ROSENFELD
Keyword(s):  
Supreme Court ◽  
Present Article ◽  
International Investment ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
The Us ◽  
Us Supreme Court ◽  
Arbitral Proceedings

AbstractArbitral tribunals have traditionally encountered difficulties in drawing the distinction between jurisdiction and admissibility. The various approaches range from the rejection of the concept of admissibility in arbitral proceedings to an overly expansive interpretation of the concept of admissibility so as to include aspects of jurisdiction. With BG Group v. Republic of Argentina, the US Supreme Court has further complicated the problem in what has become the first decision in its history on the interpretation of a bilateral investment treaty. The present article sets forth a test for distinguishing jurisdiction from admissibility which is in line with international jurisprudence and takes due account of the normative and institutional particularities of international investment arbitration proceedings.

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.

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

2013 ◽  
Vol 12 (3) ◽  
pp. 365-390 ◽  
Author(s):  
Christian Schliemann
Keyword(s):  
International Law ◽  
International Investment ◽  
Recent Attempt ◽  
Arbitral Tribunal ◽  
Amicus Curiae ◽  
Legal Rules ◽  
Investment Arbitration ◽  
Legal Standard ◽  
Investment Law

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.

Do International Organizations Enjoy Immunity Under Customary International Law?

2014 ◽  
Vol 10 (2) ◽  
pp. 287-318 ◽  
Author(s):  
Michael Wood
Keyword(s):  
Nineteenth Century ◽  
General Practice ◽  
International Law ◽  
Present Article ◽  
International Organizations ◽  
Historical Development ◽  
Customary International Law ◽  
Domestic Courts

The present article considers whether there is “a general practice accepted as law” establishing rules of customary international law on the immunity of international organizations from the jurisdiction of domestic courts. Apart from treaties, there does not appear to be a great deal of practice or opinio juris on the immunity of international organizations. And while there are many treaties dealing with the matter, their significance for the generation of a rule of customary international law seems questionable. This article sketches the historical development of the immunity of international organizations since the nineteenth century, describes various approaches that have been suggested to this question, and sets out such practice as there is and academic consideration of that practice. It then considers whether practice has to date generated any rules of customary international law regarding immunities, and finally suggests some conclusions.

What Use Is Customary International Law?

2021 ◽  
Vol 9 (1) ◽  
pp. 119-131
Author(s):  
Anthony Carty
Keyword(s):  
International Law ◽  
Legal Theory ◽  
The State ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Legal Personality ◽  
Historical School ◽  
General Law ◽  
The One ◽  
The 19Th Century

Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.

scholarly journals Limits of Targeted Killing in Counterterrorism Operations: An International Law Perspective

2017 ◽  
Vol 3 (1) ◽  
pp. 1-38
Author(s):  
Brian Sang YK
Keyword(s):  
International Law ◽  
Case Law ◽  
The State ◽  
Policy Implications ◽  
Targeted Killing ◽  
Customary International Law ◽  
Lethal Force ◽  
Legal Challenges ◽  
State Practice ◽  
Clear And Present Danger

Despite criticism of targeted killing of suspected terrorists, states continue to justify extensive bases for lethal-force responses to terrorism by arguing that rigid adherence to prescriptive law cannot always be observed in the context of clear and present danger. But, while seemingly cogent, this view wrongly presumes the mutual exclusivity of security considerations and the imperatives of law. It risks exceeding the limits of permissible use of lethal force prescribed in conventional and customary international law. A contrary and more balanced view is advanced in this article. It argues that current international law protecting individuals against intentional killing offers sufficient and practicable guidance for states confronting terrorism. Systematic legal criteria are thus expounded to clarify the legality and admissible limits of targeted killing of suspected terrorists in three contexts: law enforcement, self-defence and armed conflict. With reference to treaties, policy documents and state practice, the article critically examines the preconditions for lawful state-sanctioned killings in counter-terrorist operations. It also identifies the legal challenges and policy implications of resorting to targeted killing. Using comparative case law and operational practice, a legal basis is offered on which Kenya and other nations can effectively tackle the spectre of terrorism within the fair strictures of the law. Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with.

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