Hunting the standard of compensation – intellectual property, Chorzów Factory and investments: a response

2022 ◽  
Vol 11 (4) ◽  
pp. 511-517
Author(s):  
P Sean Morris*
Keyword(s):  
Intellectual Property ◽  
International Law ◽  
International Investment ◽  
Chemical Production ◽  
International Investment Law ◽  
Additional Information ◽  
International Court ◽  
Original Analysis ◽  
History Of ◽  
Early Case

While the debate on intellectual property and international investment law is relatively young, the role of historical cases will be important in offering some interpretative analysis. Due to the niche nature of both areas of law, where, often times, the legal luminaries found in both areas often speak past each other, in an earlier issue of this journal I offered an interpretative history of Chorzów Factory as an example of early case law by an international court illustrating the origins of the ISDS involving intellectual property. As with any interpretation, there are bound to be opposing views or explicit endorsement, but whatever the merits, that interpretative history has initiated a debate in the pages of this journal. That debate is in part, a response to my original analysis, to which I offer a response. This response is to endorse the fact that additional information has come forward that will enrich the debate on Chorzów Factory and its connection to intellectual property. Moreover, this response argues that the reply misses the point regarding the formal connection of international law to intellectual property in ISDS, a connection that I attempted to demonstrate through the example of the Chorzów Factory case – where a legal fight in the 1920s over nitrate, other chemical production and ownership still continue to be of relevance to international law.

scholarly journals Chorzów Factory – intellectual property and the continuity of international law in investor-state dispute settlement

2020 ◽  
Author(s):  
P. Sean Morris
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
International Law ◽  
Intellectual Property Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Fair Compensation ◽  
Investment Law

One of the most important cases in the jurisprudence of international law – Chorzów Factory – has a hidden secret, so much so that, even when in plain sight, legal post-mortems of the case fail to mention this well-kept secret. Chorzów Factory was about intellectual property rights, specifically patents and trade secrets, and this narrative has never been fully addressed. When the developments in international investment law and arbitration are fully considered it is worth looking back at Chorzów Factory to associate it with new streams of contemporary investor-state disputes that include issues such as intellectual property rights. Because Chorzów Factory has established the full reparation standard for unlawful expropriation, the standard has enabled a continuity of international law and underscores its importance for contemporary investment arbitration. However, the intellectual property narrative of Chorzów Factory has been neglected, and, in this article, I want to develop the intellectual property narrative of Chorzów Factory and to demonstrate the nexus between fair compensation, intellectual property rights and the continuity of international law.

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.

4 A History of International Investment Treaties

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
International Investment ◽  
International Treaties ◽  
Host Countries ◽  
Colonial Era ◽  
Foreign Investors ◽  
Post Colonial ◽  
International Investment Law ◽  
History Of ◽  
Investment Treaties

This chapter traces the history and considers the purposes and consequences of the movement by states to negotiate investment treaties. In the post-colonial era of nationalizations and contract renegotiations, the economic facts of life in host countries struggled against the form of various legal commitments made to foreign investors. To change the dynamics of this struggle so as to protect the interests of their companies and investors, capital-exporting countries began a process of negotiating international investment treaties that, to the extent possible, would be: (1) complete; (2) clear and specific; (3) uncontestable; and (4) enforceable. These treaty efforts took place at both the bilateral and multilateral levels, which, though separate, tended to inform and reinforce each other. As a result of this process, a widespread treatification of international investment law took place in a relatively short time. By the end of the second decade of the twenty-first century, foreign investors in many parts of the world were protected primarily by international treaties rather than as previously by customary international law alone. For all practical purposes, treaties have become the fundamental source of international law in the area of foreign investment.

MFN Standard as Substantive Treatment

2019 ◽  
Author(s):  
Mira Suleimenova
Keyword(s):  
International Law ◽  
International Investment ◽  
Third Party ◽  
International Investment Law ◽  
International Investment Agreements ◽  
History Of ◽  
Investment Law ◽  
Investment Treaties ◽  
Investment Agreements ◽  
Comprehensive Study

‘Most favoured nation’ (MFN) treatment is an integral part of virtually all modern investment regimes. MFN clauses in international investment agreements signal to investors that a given state protects them from discrimination; however, in practice, enforcing such guarantees may be challenging. This book represents a comprehensive study on how ‘most favoured nation’ treatment operates as a substantive standard of international investment law. Starting with a history of the development of the concept in international law, the author provides an overview of existing state practices in negotiating MFN clauses in bilateral and international investment treaties. Finally, the work analyses the ability of MFN treatment clauses to prevent de facto discrimination and allow for the ‘import’ of third-party substantive protections in international investor state arbitration. Dr Mira Suleimenova, LL.M. is an international investment lawyer based in Vienna, Austria.

Stability and Change in Times of Fragmentation: The Limits of Pacta Sunt Servanda Revisited

2012 ◽  
Vol 25 (4) ◽  
pp. 909-934 ◽  
Author(s):  
CHRISTINA BINDER
Keyword(s):  
International Law ◽  
International Investment ◽  
State Responsibility ◽  
International Human Rights Law ◽  
International Investment Law ◽  
Force Majeure ◽  
State Practice ◽  
History Of ◽  
The Law ◽  
History Of International Law

AbstractStability versus change is one of the fundamental debates of the law of treaties. The limits of pacta sunt servanda – under which conditions a state may derogate from treaty obligations when circumstances change – appears as a constant throughout the history of international law. This article examines the limits of pacta sunt servanda in times of fragmentation. It first discusses the mechanisms of general international law – supervening impossibility of performance and fundamental change of circumstances (Articles 61 and 62 VCLT) in the law of treaties and force majeure and the state of necessity (Articles 23 and 25 of the ILC Articles on State Responsibility) in the law of state responsibility. It is argued that they provide only insufficient means to accommodate change. Against that background, derogation is examined in specific treaty regimes, including international human rights law, the law of the sea, and international investment law. Treaty-based termination/withdrawal clauses and emergency exceptions are analysed accordingly. Especially the latter are formulated in a regime-specific way, adapting derogation from treaty obligations to the requirements of the respective treaty regimes. On the basis of an empirical analysis of relevant state practice it is argued that this regime-specificity – a sign of fragmentation – is especially important since there is an increased need for temporary derogation in contemporary international law.

Veiled Power

2020 ◽  
Author(s):  
Doreen Lustig
Keyword(s):  
International Law ◽  
International Investment ◽  
Historical Study ◽  
Sovereign State ◽  
Business Corporation ◽  
International Investment Law ◽  
Trade Law ◽  
International Trade Law ◽  
History Of ◽  
Investment Law

This book presents a historical study of the international law of the private business corporation. The literature on corporations and international law typically concentrates on the failure to regulate corporations. This book challenges this ‘failure’ narrative and presents an alternative historical reading: a history of its facilitative role in constituting an economic order. This study draws inspiration from scholarship on the history of international trade law, international investment law, the history of global governance, and political economic analysis of international law, and connects these specialized fields in a single lens: the corporate form. The point of departure for this history is the simultaneous emergence of international law as a modern legal discipline and the turn to free incorporation in corporate law during the last third of the nineteenth century. The book demonstrates how the sovereign veil of the state and the corporate veil of the company were applied in tandem to insulate corporations from responsibility. Nevertheless, less powerful states invoked the same prevailing conceptions of the corporation, the sovereign state, and the relation between them, to curtail corporate power in struggles associated with decolonization. Reacting to these early victories, capital exporting countries shifted to a vocabulary of human rights and protected companies under a new regime of international investment law, which entrenched the separation between market and politics.

scholarly journals Chorzów Factory – intellectual property and the continuity of international law in investor-state dispute settlement

2020 ◽  
Vol 10 (2) ◽  
pp. 179-199
Author(s):  
P Sean Morris
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
International Law ◽  
Intellectual Property Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Fair Compensation ◽  
Investment Law

One of the most important cases in the jurisprudence of international law – Chorzów Factory – has a hidden secret, so much so that, even when in plain sight, legal post-mortems of the case fail to mention this well-kept secret. Chorzów Factory was about intellectual property rights, specifically patents and trade secrets, and this narrative has never been fully addressed. When the developments in international investment law and arbitration are fully considered it is worth looking back at Chorzów Factory to associate it with new streams of contemporary investor-state disputes that include issues such as intellectual property rights. Because Chorzów Factory has established the full reparation standard for unlawful expropriation, the standard has enabled a continuity of international law and underscores its importance for contemporary investment arbitration. However, the intellectual property narrative of Chorzów Factory has been neglected, and, in this article, I want to develop the intellectual property narrative of Chorzów Factory and to demonstrate the nexus between fair compensation, intellectual property rights and the continuity of international law.

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.

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