scholarly journals Jurisdiction and Admissibility in Investment Arbitration: The Practice and the Theory

2017 ◽  
Vol 1 (3-4) ◽  
pp. 1-193
Author(s):  
Filippo Fontanelli
Keyword(s):  
International Law ◽  
Value Judgment ◽  
Public International Law ◽  
Theoretical Context ◽  
Investment Arbitration

AbstractThis is the first half of a two-part essay on jurisdiction and admissibility in investment arbitration. It focuses on the arbitration practice, whilst the second part sets these concepts in the wider framework of public international law litigation. This essay maps the objections to the tribunal’s jurisdiction (byratio: materiae, temporis, lociandpersonae) and the claim’s admissibility. It offers some preliminary conclusions: in certain areas there still is no consensus; tribunals are inclined to characterise objections as jurisdictional, and rarely resort to admissibility; findings of inadmissibility draw a judgment on the claimant or the claim’s propriety (whilst jurisdictional decisions typically eschew value-judgment); tribunals failed to distinguish jurisdiction from admissibility. These findings are further explored, within a wider theoretical context, in the second part of the essay.

Part VI The Post-Award Phase, 30 A Practical Guide: Research Tools in International Investment Law

2018 ◽  
Author(s):  
Fouret Julien
Keyword(s):  
International Law ◽  
International Investment ◽  
International Court Of Justice ◽  
Stare Decisis ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Arbitration ◽  
International Court ◽  
Investment Agreement ◽  
Investment Law

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.

The Function of Equity in International Law

2021 ◽  
Author(s):  
Catharine Titi
Keyword(s):  
Climate Change ◽  
International Law ◽  
Case Law ◽  
Legal Concept ◽  
Public International Law ◽  
Legal Decisions ◽  
Investment Arbitration ◽  
Maritime Boundary ◽  
Common Misconceptions ◽  
Comprehensive Study

A principle with a long pedigree, equity has been present in legal thought and in municipal legal systems since antiquity. Introduced in international legal decisions through claims commissions and arbitral tribunals, equity became progressively part and parcel of the international law mainstream. This book provides a systematic and comprehensive study of the legal concept of equity as it operates in contemporary international law, setting it on a new basis and dealing with some common misconceptions about it. In contrast with earlier studies on the topic, the book is informed by a body of judicial and arbitral case law that has never been so large and varied and it draws extensively on the prolific case law of investment tribunals, gaining insights from a valuable source that is typically ignored in public international law scholarship. From international cultural heritage law to the law on climate change, from maritime boundary delimitations to decisions on security for costs in investment arbitration, the relevance of equity is more far-reaching than has previously been conceded. As the importance of international law increases, continuously covering new domains, the value of equity increases with it. It is this new function of equity in the international law of the 21st century that this book explores.

Principles of Evidence in Public International Law as Applied by Investor-State Tribunals: Burden and Standards of Proof

2019 ◽  
Vol 2 (2) ◽  
pp. 1-52
Author(s):  
Kabir Duggal ◽  
Wendy W. Cai
Keyword(s):  
International Law ◽  
Burden Of Proof ◽  
Valuable Insight ◽  
International Court Of Justice ◽  
Public International Law ◽  
Investment Arbitration ◽  
Court Of Justice ◽  
International Court ◽  
Standards Of Proof ◽  
Insight Into

AbstractPrinciples of Evidence in Public International Law as Applied by Investor-State Tribunals explores the fundamental principles of evidence and how these principles relating to burden of proof and standards of proof are derived.By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally. Each principle is analyzed through historical and modern lenses to provide clarity and cohesion in understanding how fundamental principles of evidence will affect evidentiary dispositions of parties in investment arbitration and public international law cases.

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

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 ◽  
Investment Treaty Arbitration

<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>

Das Recht auf gesundheitliche Regulierung im Investitionsschiedsverfahrensrecht

2019 ◽  
Author(s):  
Cornelia Kirchbach
Keyword(s):  
International Law ◽  
Public International Law ◽  
The Public ◽  
Investment Protection ◽  
Treatment Standard ◽  
Investment Arbitration ◽  
Philip Morris ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Health Regulations

Conflicts and tensions frequently arise between public regulatory interests and investment protection, especially in the area of global health law. Which requirements must a host state observe in order to avoid liability before an investment arbitration tribunal for violation of both the prohibition on expropriation and the fair and equitable treatment standard when introducing health regulations? This thesis examines the framework for national regulations under public international law, on the basis of the verdict in the Philip Morris v Uruguay case. In doing so, it examines the areas of worker protection, environmental health, alcohol consumption and food health exemplarily. The analysis concludes that restrictions on national leeway in this respect through regulations in the public interest are less intrusive than often assumed.

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

2013 ◽  
pp. 1-43
Author(s):  
Lars Markert ◽  
Elisa Freiburg
Keyword(s):  
International Law ◽  
International Investment ◽  
Controversial Issues ◽  
Legal Basis ◽  
Public International Law ◽  
International Investment 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

2017 ◽  
Vol 16 (1) ◽  
pp. 139-158
Author(s):  
Andrea Gattini
Keyword(s):  
International Law ◽  
International Investment ◽  
Bilateral Investment Treaties ◽  
Public International Law ◽  
Provisional Application ◽  
International Investment Law ◽  
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.

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

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 ◽  
Investment Treaty Arbitration

<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>

Data Protection Law in Investment Arbitration: Applicable or Not?

2021 ◽  
Author(s):  
Jie (Jeanne) Huang ◽  
Dan Xie
Keyword(s):  
International Law ◽  
Data Protection ◽  
Personal Data ◽  
Local Data ◽  
Public International Law ◽  
Applicable Law ◽  
Personal Data Protection ◽  
Investment Arbitration ◽  
Different Dimensions ◽  
Data Protection Law

Abstract Two recent cases, Tennant Energy v Canada and Elliott Associates v Korea, demonstrate an emerging yet unresolved applicable law issue in investment arbitration: whether a local personal data protection law should be applied in the absence of parties’ choice. This articlexplores this issue from three different dimensions: (i) the relevant law applicable to an arbitration (eg treaties and arbitration rules); (ii) the connecting factors between an arbitration and local data protection law; and (iii) the immunities or privileges, if any, under public international law. It proposes that the connecting factors between an arbitration and a local personal data protection law should be considered with the privileges and immunities under public international law. This proposed approach can provide predictability and certainty to the applicable law. Importantly, it can also protect the integrity and impartiality of an investment arbitration from the impacts of local laws.

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