Investment Treaty Arbitration and the Development of International Investment Law as a 'Collective Value System': A Synopsis of a New Synthesis

2009 ◽  
pp. 921-935
Author(s):  
Ahmad Ali GHOURI
Keyword(s):  
International Investment ◽  
Value System ◽  
International Investment Law ◽  
Investment Treaty ◽  
System A ◽  
New Synthesis ◽  
Investment Law ◽  
Investment Treaty Arbitration

scholarly journals Control, Capacity, and Legitimacy in Investment Treaty Arbitration

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 261-265
Author(s):  
Jeremy K. Sharpe
Keyword(s):  
International Investment ◽  
Law Reform ◽  
Institutional Choice ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Trade Offs ◽  
Investment Law ◽  
States Experience ◽  
Investment Treaty Arbitration

Arbitration has long been the default mechanism for resolving international investment disputes. The traditional consensus favoring arbitration, however, has now given way, and reform proposals abound. The articles by Sergio Puig and Gregory Shaffer, on institutional choice and investment law reform, and by Anthea Roberts, on incremental, systemic, and paradigmatic reform of investor-state arbitration, helpfully situate the current controversies, debates, and reform options for states. Both articles reveal just how far and fast the debate has shifted in recent years. They also confirm states’ desire to exercise greater control over the regime for resolving international investment disputes. Many states continue to struggle to fully comply with their investment treaty obligations, to efficiently defend against investor claims, and to properly keep abreast of and shape developments in international investment law. Puig and Shaffer provide a useful framework for comparatively assessing possible institutional alternatives in light of their relative trade-offs. But any reform recommendations should draw lessons from states’ experience with the existing regime, including states’ significant problems of capacity. The merits of any reform proposals, therefore, should be measured in part by their ability to improve states’ capacity to cope with the existing investment protection regime and rapidly changing developments.

Illegal Investments in Investment Treaty Arbitration

2012 ◽  
Vol 11 (2) ◽  
pp. 281-323 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
International Investment ◽  
Foreign Investor ◽  
Considerable Potential ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law ◽  
Investment Treaty Arbitration

Abstract Investment treaty tribunals on numerous occasions have had to deal with the impact of breaches of domestic law by a foreign investor on the investment’s protection under an international investment treaty. In this context, tribunals had to interpret different “in accordance with host State law”-clauses contained in investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present article traces this increasingly complex jurisprudence and frames it as an issue of the relationship between domestic law and international investment law. Although different approaches exist, most importantly as to the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the article suggests that there is considerable potential for convergence in arbitral jurisprudence, thus unveiling the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.

LL.M. THESIS: The Role of Constitutional Courts in International Investment Law and Investment Treaty Arbitration: A Latin American Perspective

2014 ◽  
Vol 18 (1) ◽  
pp. 667-745
Author(s):  
Juan Camilo Fandiño-Bravo
Keyword(s):  
Latin American ◽  
Essential Element ◽  
International Investment ◽  
Public Law ◽  
Constitutional Courts ◽  
Economic Relations ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Investment Treaty Arbitration

Protection and promotion of foreign investment, one essential element of international economic relations and a cornerstone of the macroeconomic policy of developing States, like Latin-American States, is deemed to be undergoing a ‘legitimacy crisis’ that manifests itself in a generalized discontent by the system’s major stakeholders and some sectors of public society. One of the sources of such crisis can be found in the lack of a proper understanding of the nature of the system itself. After identifying the reasons why the problematiques of International Investment Law and Investment Treaty Arbitration are better understood as matters of public law, this work adopts a comparative public law approach to study the different ways in which Latin-American constitutional courts intervene in International Investment Law and Investment Treaty Arbitration, and outlines the major features of a proposed dialectic relation between constitutional courts and arbitral tribunals, in which constitutional courts can benefit from the study of the findings of arbitral tribunals regarding the nature and scope of substantive standards of protection, among others, in the process of reviewing the constitutionality of International Investment Agreements, and arbitral tribunals can use national constitutional doctrine as one among other public law sources in which to inform their task. The adoption of such an approach will assist in the reduction of the legitimacy gap of International Investment Law and Investment Treaty Arbitration, thus helping to overcome the crisis of the system.

Investment Treaty Arbitration

2020 ◽  
pp. 616-640
Author(s):  
Anil Yilmaz Vastardis
Keyword(s):  
International Investment ◽  
Special Treatment ◽  
Access To Justice ◽  
Reform Initiatives ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Treaty ◽  
Local Access ◽  
Investment Law ◽  
Investment Treaty Arbitration

This chapter challenges investment treaty arbitration at its core by questioning the validity of insistence on special routes for access to justice reserved to remediate the grievances of a class of privileged investors, which can be referred to as ‘justice bubbles’. Despite the potential of the ongoing reform initiatives to genuinely improve the existing investment treaty arbitration model, salvaging and strengthening these justice bubbles that serve the needs of the privileged few sustains and even makes permanent the prioritization of institutions of justice for foreign investors over the improvement of local institutions that could provide justice for members across society, including foreign investors. However, no institutional process used or proposed for settling international investment law disputes is perfect, and each process is ‘imperfect in different ways given the dynamics of participation within them’. Thus, the challenge in this chapter is directed towards the singling out of high-value investment disputes as deserving special treatment above and beyond any institutional options available to any other private party aggrieved by governmental abuse. The chapter then argues that the establishment of a permanent investment court is a short-sighted solution to deficiencies in local access to justice, which is likely to undermine domestic legal developments.

scholarly journals Sources of International Investment Law

2018 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
International Investment ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Settlement Of Disputes ◽  
Bilateral Treaties ◽  
Investment Treaty Arbitration

This chapter discusses the use of sources of international law in the settlement of disputes arising under bilateral, regional, multilateral investment treaties and investment chapters in free trade agreements, focusing specifically on particularities this field of international law displays in comparison to general international law. It first addresses the importance of bilateral treaties in international investment law and shows that their bilateral form is not opposed to the emergence of a genuinely multilateral regime that behaves as if it was based on multilateral sources. The chapter then considers the pre-eminent importance arbitral decisions assume in determining and developing the content of rights and obligations in the field. Next, the chapter looks at the increasing influence of comparative law and the influence of soft law instruments. It argues that the specific sources mix in international investment law is chiefly connected to the existence of compulsory dispute settlement through investment treaty arbitration and the sociological composition of those active in the field.

Micula v Romania between International Investment Law and European Law – The UK Supreme Court Judgement – the Final or the NEXT PIece of the Puzzle?

De Jure ◽  
2021 ◽  
Vol 12 (1) ◽  
Author(s):  
Steliyana Zlateva ◽  
◽  
◽  
Keyword(s):  
Supreme Court ◽  
International Investment ◽  
European Law ◽  
Eu Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Uk Supreme Court ◽  
The Uk ◽  
The Eu

The Judgement of the United Kingdom’s Supreme Court in the long Micula v. Romania investment treaty dispute confirmed that the arbitral awards of the International Centre for Settlement of Investment Disputes (ICSID), rendered by tribunals established under intra-EU BITs, could be enforced in the UK. The Micula case concerns the interplay between the obligations under the ICSID Convention and EU law. In particular, it addresses the question of whether the award obtained by the Micula brothers against Romania constitutes state aid prohibited by EU law, as well as the enforcement obligations under the ICSID Convention in view of the EU duty of sincere cooperation.

International Investment Law and Practice in the Kingdom of Cambodia: An Evolving ‘Rule Taker’?

2017 ◽  
Vol 18 (5-6) ◽  
pp. 942-973
Author(s):  
Romesh Weeramantry
Keyword(s):  
Foreign Direct Investment ◽  
Direct Investment ◽  
Free Trade Agreements ◽  
International Investment ◽  
Court System ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Agreements

Abstract Cambodia has undertaken several initiatives to attract foreign direct investment (FDI), which has been growing rapidly in recent years, particularly through participating in Association of South East Asian Nations (ASEAN) investment agreements and free trade agreements (FTAs). This article first outlines Cambodia’s arbitration law and practice, its Law on Investment, the court system, problems relating to corruption, and foreign direct investment (FDI) patterns. It then surveys trends in Cambodia’s comparatively belated signing of investment treaties, and their main contents (including recent treaties with India and Hungary, adopting very different models). The article then discusses the only investment arbitration instituted against Cambodia, which was successfully defended, followed by a comment on the future prospects for Cambodia’s investment treaty program.

An Overview of Sri Lanka’s Bilateral Investment Treaties: Status Quo and Some Insights into Future Modifications

2016 ◽  
Vol 7 (2) ◽  
pp. 287-318
Author(s):  
Dilini PATHIRANA
Keyword(s):  
Sri Lanka ◽  
Dispute Settlement ◽  
International Investment ◽  
Status Quo ◽  
International Investment Law ◽  
Global Context ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Investment Law ◽  
Investment Agreements

AbstractSri Lanka is the first country against which a foreign investor has had recourse to international arbitration based on the dispute settlement clause in a bilateral investment treaty (BIT). This was the case of AAPL v. Sri Lanka. Since then, the country has been challenged twice before the International Centre for Settlement of Investment Disputes (ICSID), while its latest encounter was in the case of Deutsche Bank AG v. Sri Lanka. In the intervening years between these two cases, Sri Lanka maintained silence and failed to alter its BITs in a global context where the conventional attitude on international investment agreements (IIAs) is being increasingly reconsidered. This paper provides an overview of Sri Lanka’s BITs, which highlights the urgency of reconsidering the country’s investment treaty-making practice. It suggests some modifications to align the country’s investment treaty-making practice with international investment law (IIL) developments.

THE “UNEXPECTED” DEVELOPMENT-FRIENDLY DEFINITION OF INVESTMENT IN THE 2013 RESOLUTION OF THE INSTITUT DE DROIT INTERNATIONAL

2014 ◽  
Vol 23 (1) ◽  
pp. 69-90
Author(s):  
Pia Acconci
Keyword(s):  
Sustainable Development ◽  
International Investment ◽  
Public Interests ◽  
International Investment Law ◽  
Investment Treaty ◽  
Private And Public ◽  
Investment Law ◽  
Droit International ◽  
Definition Of

The importance of the widespread reliance upon direct arbitration, particularly arbitration under the International Centre for Settlement of Investment Disputes (ICSID), and of the practice of “arbitration without privity” is at the root of the search for a definition of investment, as underlined by the 2013 Resolution of the Institut de droit international (IDI). The Resolution refers to a development-friendly definition of investment. This article aims to explain to what extent a definition based upon references to sustainable development would constitute an acceptable specification, albeit a partial one, of the term “development” used in the IDI Resolution, in light of the need of a reconciliation between private and public interests within current international investment law. The article also deals with the issue of whether the ICSID Convention provides for an autonomous definition of investment that cannot be overridden by the terms of a given international investment treaty, and if so, which criteria should be taken into consideration for the purposes of determining whether an investment exists within the meaning of Article 25(1) of the ICSID Convention.

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