Conclusions: Testing General Principles of Law in International Investment Law: Between Principles and Rules of International Law

2019 ◽  
pp. 297-306
Keyword(s):  
International Law ◽  
International Investment ◽  
International Investment Law ◽  
General Principles Of Law ◽  
Investment Law

3 The Foundations of International Investment Law

2015 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
World War Ii ◽  
International Law ◽  
International Investment ◽  
World War ◽  
International Investments ◽  
Customary International Law ◽  
Enforcement Mechanism ◽  
International Investment Law ◽  
General Principles Of Law ◽  
Investment Law

This chapter examines the state of customary international law governing international investments, that is, the law that exists in the absence of an applicable treaty. Following World War II, such law for most investors was incomplete, vague, contested, and without an effective enforcement mechanism, meaning that investors and their home governments needed to find another way to protect investments of their nationals. This would lie in negotiating investment treaties. Topics covered include state and investor interests shaping international investment law; the sources of international law; customary international law and general principles of law governing international investment; customary international law on expropriation and breach of state contracts; challenges to Western views on international investment law; and deficiencies of customary international law on investment.

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.

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.

23. International Investment Law

2018 ◽  
Author(s):  
Surya P Subedi
Keyword(s):  
International Trade ◽  
International Law ◽  
International Investment ◽  
International Regulation ◽  
International Investment Law ◽  
Trade Law ◽  
International Trade Law ◽  
Finance Law ◽  
Recent Trends ◽  
Investment Law

This chapter discusses the development and current state of international investment law, which encompasses international finance law, international trade law, international investment law, and regional economic trade agreements. Recent progressions in the area of international financial law, international trade law, and investment law demonstrate that other areas of international regulation have a decisive influence on international investment law. Moreover, international investment law is more increasingly focused on development concerns. International investment law is currently going through an exciting phase in its development. It has now become one of the fastest changing areas of international law with exciting and far-reaching implications for both investment-receiving and investment-exporting countries, thanks to enterprising claimants and innovative interpretations and expansive approaches adopted by international investment tribunals. This chapter seeks to capture the law and the recent trends in both State practice and jurisprudence in this area of international law.

Investment Contracts and International Law: Charting a Research Agenda

2020 ◽  
Vol 31 (1) ◽  
pp. 353-368
Author(s):  
Lorenzo Cotula
Keyword(s):  
International Law ◽  
Academic Writing ◽  
International Investment ◽  
Public Interests ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Protection ◽  
Policy Debates ◽  
Investment Law ◽  
Regulatory Powers

Abstract Investment contracts are an important part of the web of legal relations that underpin investment processes. They raise complex doctrinal issues, including with regard to their interface with public international law. The two books under review are part of a new surge in academic writing about investment contracts, in a field that is currently dominated by concerns about investment treaties and treaty-based arbitration. In this review essay, I explore the intersections between investment contracts and international law, engaging with the arguments presented in the two books and developing reflections based on trends in the wider literature. After situating the contract in academic and policy debates about international investment law, I compare the different approaches the two books embody – in relation to their scope, focus and format as well as the ways in which they conceptualize and piece together the multiple commercial and public interests at stake in investment contracting. I then discuss one theme that features prominently in both books – namely, the legal contours of investment protection, particularly in connection with stabilization clauses – and I examine its articulation with public regulatory powers. I conclude by outlining areas that deserve further exploration in scholarly work on investment contracts and international law.

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