scholarly journals Interpretation of International Law by National Judges: Opportunities and Challenges. The Case of International Investment Law in Latin America

2018 ◽  
Vol 6 (1) ◽  
pp. 128
Author(s):  
Marcelo Lozada Gómez ◽  
Paola Acosta Alvarado
Keyword(s):  
Latin America ◽  
International Law ◽  
Foreign Investment ◽  
Subject Matter ◽  
International Investment ◽  
International Investment Law ◽  
Domestic Courts ◽  
Investment Law ◽  
Fragmentation Of International Law

The role of national judges in international law is still an undecided subject matter. Most scholars consider the decisions from national judges merely as acts of States, denying the possibility that those judgments constitute an autonomous source of international law. This position is grounded in the idea that national judges do not regularly employ sources of international law, and therefore, their opinion about them is not quite important. Nevertheless, recent phenomena have highlighted and triggered the intervention of national judges regarding the interpretation and enforcement of international law. The growing scope of international rules, which now regulate intra-states issues, as well as the fragmentation of international law, and the internationalisation of national orders, inter alia, have demanded domestic courts’ intervention in order to face these changes and avoid undesirable consequences. In this context, this article aims to: 1. bring an outlook on the evolution of the role assigned to national judges; 2. explore the phenomena that triggered their intervention; 3. analyse the outcomes of this increasing participation, namely how national judges change the usual dynamics of interpretation and evolution of international law; 4. apply these ideas to explain the intervention of national judges in Latin America regarding the enforcement of foreign investment law; and 5. conclude with some remarks about the future of this relationship between national and international law as well as the importance of a better understanding of the role of national judges.

International Law and Foreign Investment in Hydroelectric Industry: A Multidimensional Analysis

2016 ◽  
Vol 18 (3-4) ◽  
pp. 183-222
Author(s):  
Attila Tanzi
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Dispute Settlement ◽  
International Investment ◽  
Multidimensional Analysis ◽  
Private International Law ◽  
International Investment Law ◽  
Investment Law ◽  
Domestic Law

The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation.

Introduction

2021 ◽  
pp. 1-16
Author(s):  
Nicolás M. Perrone
Keyword(s):  
World War Ii ◽  
Foreign Investment ◽  
Professional Associations ◽  
International Investment ◽  
Business Leaders ◽  
International Investment Law ◽  
Progressive Development ◽  
Investment Law

The role of the business leaders, bankers, and lawyers who promoted investment treaties and ISDS in the post-World War II period remains controversial. The introductory chapter argues that these norm entrepreneurs and their professional associations created a legal imagination about foreign investment relations which remains alive and well in both international investment law and ISDS awards. Their contribution to the progressive development of the law consisted of ideas as much as practice, particularly the way in which they collated their ideas into a vision of foreign investment relations. The chapter introduces the main features of this legal imagination, including the relevance of certain interpretations of property and contracts. It claims that grasping this imagination calls for a transnational law method, and concludes with an overview of the book.

Sources of International Investment Law

2018 ◽  
Author(s):  
Jorge E. Viñuales
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
International Investment ◽  
The State ◽  
Conventional Theory ◽  
International Investment Law ◽  
Basic Understanding ◽  
Investment Law ◽  
Practical Implications

This chapter addresses the challenges posed by the practice of international investment law to the conventional theory of the sources of international law. After a brief overview of the main ‘sources’ of ‘international investment law’, the chapter examines three challenges to this basic understanding, which arise from the need to account for the domestic laws governing different aspects of foreign investment transactions, the detailed jurisprudential norms generated by investment tribunals to specify broadly formulated norms, and the norms of general international law expressing the sovereignty of the State. For each category of norms, the chapter selects several problems that put the most widely accepted understanding of the sources of international law to test. It then explains why the problems examined have potentially important practical implications. The chapter concludes with some observations on the interactions between practice and the theory of the sources of international law.

scholarly journals A Comparison with Analysis of the SADC FIP before and after Its Amendment

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Tinashe Kondo
Keyword(s):  
South Africa ◽  
International Law ◽  
Foreign Investment ◽  
First Generation ◽  
International Investment ◽  
Human Rights Law ◽  
International Investment Law ◽  
Before And After ◽  
Recent Trends ◽  
Investment Law

Discourses on rights, duties and obligations predominantly take place within the context of constitutional, administrative and human rights law. In the last decade these debates have also begun to take place in international investment law, an "autonomous branch" of international law. The main debate centres on the adequacy and sustainability of investor-centred regulatory regimes which provide more rights than obligations to investors. The 2006 Southern African Development Community Finance and Investment Protocol (SADC FIP) was a typical example of such a regime. It offered antiquated protections which were characteristic of first generation Bilateral Investment Treaties (BITs). The result was that some countries, such as South Africa, opted not to conform to this binding instrument, which did not match their progressive vision of foreign investment. It is against this backdrop that the SADC FIP was recently amended. The amendment, balances the rights and obligations of investors and state parties to some degree, and moves towards sustainable foreign investment. However, this paper argues that more still needs to be done to modernise the document in line with more recent trends.

NCD Prevention and International Investment Law in Latin America: Chile’s Experience in Preventing Obesity and Unhealthy Diets

2020 ◽  
Vol 21 (5) ◽  
pp. 781-808
Author(s):  
Marcelo Campbell
Keyword(s):  
Latin America ◽  
International Investment ◽  
National Treatment ◽  
International Investment Law ◽  
Nutrition Labelling ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Domestic Courts ◽  
Investment Law ◽  
Equitable Treatment

Abstract In 2016, Chile became the first country in Latin America to implement comprehensive regulations aimed at preventing obesity and diet-related non-communicable diseases. It introduced innovative measures including a mandatory front-of-pack nutrition labelling scheme for food products high in sodium, free sugars, fats, and calories, and strict advertising and marketing restrictions of unhealthy foods to children under 14 years of age. However, food-exporting countries have questioned the lawfulness of these measures in the context of the World Trade Organization’s Technical Barriers to Trade Committee, and multinational food companies have filed several complaints before Chilean courts challenging their implementation. This article provides an overview of specific legal issues discussed in domestic courts and examines Chile’s measures under the rules of international investment law. It assesses whether they would withstand a treaty claim based on indirect expropriation, breach of the national treatment standard, and breach of the fair and equitable treatment standard.

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.

The Rise of Common Principles for Investment in Latin America: Proposing a Methodological Shift for Investor-State Dispute Settlement

2016 ◽  
Vol 17 (4) ◽  
pp. 614-633 ◽  
Author(s):  
José Gustavo Prieto Muñoz
Keyword(s):  
Latin America ◽  
International Law ◽  
Latin American ◽  
Dispute Settlement ◽  
International Investment ◽  
Critical Approach ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Investment Law ◽  
The 19Th Century

The present article argues for the need of an alternative way of thinking about international investment law and investor-State disputes in Latin America. The article explains how the current critical approach to foreign investment comes from a conceptual trajectory that originated in the 19th century with the work of Carlos Calvo, inspired in turn by Emer De Vattel’s conceptual model for international law, and how a principles discourse would be a viable alternative for enhancing the legitimacy of investment arbitration. The article further structures such a principles discourse in three clusters: general principles recognised by Latin American nations; principles compatible with concepts developed by investment arbitrators, and regional principles not yet recognised by international investment arbitrators. The last cluster contains in particular principles such as transparency and inclusion that ought to be the core of a Latin American discourse as the limit of the authority granted to investment arbitrators.

scholarly journals EU Law in investment arbitration: a view from international arbitral tribunals

2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Katariina Särkänne
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Eu Law ◽  
International Investment Law ◽  
Legal Regimes ◽  
Core Elements ◽  
Investment Law ◽  
The Relationship

The conflict between international investment law and EU law provides fruitful insights into how the arbitral tribunals, acting outside the EU’s judicial system, have viewed the EU and EU law. Taking as an example the topical questions of the principle of autonomy of EU law as well as the EU’s State aid rules in investor-State arbitration, the article discusses how arbitral tribunals have seen the role of EU law and how they have treated the opposite demands from the two legal regimes. The claim of EU law rendering the intra-EU investment treaties invalid has constantly proved unsuccessful, and the tribunals have maintained their jurisdiction to be based on international law. However, the possibility of EU law affecting the assessment of the merits of the cases is clearer and more accepted. While harmonious interpretation could somewhat alleviate the remaining conflicts between the two legal regimes, it is unlikely that either regime would compromise the core elements of their systems. The article argues that, for the specific nature of the EU’s legal order to be secured in a way that does not conflict with international law, the relationship between EU law, international (investment) law and investment dispute settlement should be clearly regulated in instruments of international law.

International Investment Law, Hybrid Authority, and Jurisdiction

2019 ◽  
pp. 430-454
Author(s):  
Edward Guntrip
Keyword(s):  
International Law ◽  
International Investment ◽  
The State ◽  
International Investment Law ◽  
Transnational Law ◽  
Competition State ◽  
Role Of The State ◽  
The Common ◽  
Investment Law

This chapter discusses the extent to which contemporary approaches to jurisdiction can be applied to hybrid exercises of state and non-state authority in international investment law. Relying on theories of relative authority and transnational law, it demonstrates that jurisdiction needs to be reformulated to capture exercises of hybrid authority in international law. If jurisdiction cannot address hybrid authority, it will continue to overlook significant exercises of authority within international investment law. Based on how hybrid authority functions in international investment law, the chapter then highlights that the role of the state in international law has altered from being a welfare state to a competition state. Yet, the jurisdictional framework has not adapted to the altered function of the state. Hence, despite the common use of hybrid authority in international investment law, it cannot be accommodated within the jurisdictional framework.

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