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Investment arbitration has become the key forum to settle disputes between investors and the host state. It is not clear from the arbitration agreements which body of law the arbitrators should apply: national or international. This book examines how the legal framework which the arbitral panels operate in influences which body of law they apply.
This book examines the law, national and/or international, that arbitral tribunals apply on the merits to settle disputes between foreign investors and host states. In light of the freedom that the disputing parties and the arbitrators have when designating the applicable law, and because of the hybrid nature of legal relationship between investors and states, there is significant interplay between the national and the international legal order in investor-state arbitration. The book contains a comprehensive analysis of the relevant jurisprudence, legal instruments, and scholarship surrounding arbitral practice with respect to the application of national law and international law. It investigates the awards in which tribunals referred to consistency between the legal orders, and suggests alternatives to the traditional doctrines of monism and dualism to explain the relationship between the national and the international legal order. The book also addresses the territorialized or internationalized nature of the tribunals; relevant choice-of-law rules and methodologies; and the scope of the arbitration agreement, including the possibility of host states presenting counterclaims in investment treaty arbitration. Ultimately, it argues that in investor"state arbitration, national and international law do not only coexist but may be applied simultaneously; they are also interdependent, each complementing and informing the other both indirectly and directly for a larger common good: enforcement of rights and obligations regardless of their national or international origin.
I. Introduction II. History and Limitations of the Traditional System for Resolving Investment Disputes III. The Modern System of Investor-State Arbitration IV. Commonly Used Procedural Rules V. Procedural Law Applicable in Investor-State Arbitration VI. National Court Interference: Anti-Arbitration Injunctions VII. The Course of an Investment Arbitration VIII. Consolidation under Relevant Arbitration Rules or Treaties IX. Governing Law in Investment Disputes X. Consent to Arbitral Jurisdiction XI. The Concept of Investment XII. The Nationality of the Investor XIII. Exhaustion of Local Remedies XIV. Election of Forum: National Courts and Contract Arbitrations XV. Discrimination XVI. Expropriation XVII. "Fair and Equitable Treatment" and "Full Protection and Security" XVIII. Umbrella Clauses XIX. Damages, Compensation, and Non-Pecuniary Remedies XX. Annulment and Set Aside XXI. Enforcement of Awards XXII. The Future of International Investment Arbitration Select Bibliography Index Table of Cases Index of Treaties, Conventions, and International Agreements.
Investor-State Arbitration describes the increasing importance of international investment and the necessary development of a new field of international law that defines the obligations of host states and creates procedures for resolving disputes. The authors examine the international treaties that allow investors to proceed with the arbitration of their claims, describe the most-commonly employed arbitration rules, and set forth the most important elements of investor-State arbitration procedure - including tribunal composition, jurisdiction, evidence, award, and challenge of annulment. The authors trace the evolution and rapid development of the field of international investment, including the formation of the International Center for the Settlement of Investment Disputes (ICSID), and the more than 2,000 bilateral investment treaties, most of which were entered into in the last twenty years. The authors explain how this development has led to far greater certainty for foreign investors in dealing with their host countries, as well as how it has incentivized growth in international trade and commerce.
This book gives a comprehensive overview of all relevant aspects of the issue of applicable substantive law in the context of investor/State arbitration. It is a comparative survey of both the International Center for Settlement of Investment Disputes (ICSID) and non-ICSID arbitral practice. The applicable substantive law represents an important issue in investment disputes as it determines the rules of law that should be applied to the merits of the dispute. This study demonstrates the need for a discussion on the applicable law before examining the merits of the case, as it appears to be non-existent in most arbitral awards. The author gives an extensive survey of choice of law clauses as found in direct agreements between parties and in multilateral or bilateral investment treaties. Furthermore, the author analyzes the following issues: stabilization clauses in investment agreements, the application of the residual rule (if parties failed to agree on the applicable law), the special position of the Iran-US Claims Tribunal and various annulment decisions.
This volume celebrates the first fifty years of the International Centre for Settlement of Investment Disputes (ICSID) by presenting the landmark cases that have been decided under its auspices. These cases have addressed every aspect of investment disputes: jurisdictional thresholds; the substantive obligations found in investment treaties, contracts, and legislation; questions of general international law; and a number of novel procedural issues. Each chapter, written by an expert on the chapter’s particular focus, looks at an international investment law topic through the lens of one or more of these leading cases, analyzing what the case held, how it has been applied, and its overall significance to the development of international investment law. These topics include: - applicable law; - res judicata in investor-State arbitration; - notion of investment; - investor nationality; - consent to arbitration; - substantive standards of treatment; - consequences of corruption in investor-State arbitration; - State defenses - counter-claims; - assessment of damages and cost considerations; - ICSID Arbitration Rule 41(5) objections; - mass claims, consolidation and parallel proceedings; - provisional measures; - arbitrator challenges; - transparency and amicus curiae; and - annulment. Because the law of international investment continues to grow in importance in an ever globalizing world, this book is more than a fitting way to mark the past fifty years and to welcome the next fifty years of development. It will prove both educational for practitioners new to the field and informative for seasoned investment lawyers. Moreover, the book itself is a landmark that will be of great value to professionals, scholars and students interested in international investment law.
This new edition of what has rapidly become the pre-eminent work on the role of municipal law in investment treaty arbitration is justified not only by the accelerating appearance of investment treaty awards but also by the continuing, serious flaws in the application of international law by investment treaty arbitral tribunals. As a matter of international law, arbitrators need to be attentive to the circumstances where municipal law supplies the necessary substantive legal rule. They will find this book to be the best guide to this complex challenge. The author has maintained the overall structure of the first edition and added a new chapter on Article 42 of the ICSID Convention. Certain descriptions and arguments have been rethought and revised to clarify their significance and their applicability. The treatment focuses on the role of municipal law in providing the substance for concepts such as contracts, property rights, and shareholders’ rights, which are relevant in the international investment treaty context but are not regulated under international law. Among the complex questions considered are the following: - If the application of international law requires a renvoi to municipal law, how should that renvoi be conducted? - In investment disputes, what role, if any, should municipal law have in assessing State attribution under international law? - Should shareholders receive compensation for damages suffered by their company due to a violation of an international obligation vis-à-vis the company? - Does a contractual right exist to foreign investment ‘property’? - Under what conditions may a violation of municipal law become internationally wrongful? - May foreign investors rely on ‘expectations’ as an autonomous source of rights in investment treaty disputes? - Does an alleged breach of an umbrella clause transform a breach of contract claim covered by municipal law into an international law claim? The chapters answer these and many other questions in extraordinary depth, drawing on detailed analyses of the issues and implications posed by major relevant cases and arbitral decisions. The author’s analysis of the unavoidable interaction of municipal law and international law in investment treaty arbitration – and the consequences stemming from rejecting the application of municipal law when relevant – will continue to prove of immeasurable value to arbitrators, arbitration counsel, corporate counsel, and scholars of international law.
Today thousands of investors act globally in markets providing services, technology or capital in countries all around the world. This activity can be peacefully accomplished when both the investor and the host State know that the disputes will be resolved under the aegis of the investor-State arbitration regime, wherein an investor is provided with a direct right of action against a State, most commonly stemming from a bilateral or multilateral investment treaty. This book approaches the substantive and sometimes difficult concepts of investor-State arbitration in a clear and concise explanatory fashion. In the course of acquainting the reader with the basic legal concepts and policies of the regime, the authors address such issues as the following: • consent to jurisdiction; • State responsibility; • possible conflict of interests; • mechanisms for reviewing an award; • damages and costs; and • enforcement. The book examines a number of arbitration procedures arising from various perspectives with differing underlying assumptions while highlighting important cases. Given that investor-State arbitration is now under the public watch and facing many challenges, this remarkably clear and concise overview of the regime will prove to be of great value to in-house counsel and other practitioners, as well as to government policymakers and students.x`
Investor-State disputes are increasing and damage awards are often significant. It is thus no surprise that the investor-State dispute settlement (ISDS) system has come under scrutiny. Perceptions have arisen that ISDS is inconsistent, lacks transparency, and is simply unfair. This book delves into the ongoing worldwide debate and discussions regarding the ISDS system. Drawing contributors from around the world, the authors provide insights on critical topics and address the key question facing the ISDS system and the international community it serves: Should the present ISDS system be reformed, replaced, or simply remain as is? The contributors represent points of view ranging from academia to practice to governmental entities, addressing such topics as: the possible consequences of wholesale replacement or elimination of the current ISDS system; mediation as an alternative to resolve ISDS disputes; the creation of a multinational investment court or appellate review mechanism; lack of an early dismissal mechanism to eliminate meritless claims; issues regarding arbitrators, including their appointment and ethical obligations; how investors may retain their right to pursue claims for violations of investment protection following termination of an agreement; a State’s right to assert a counterclaim against an investor-claimant; the role of ISDS in promoting and protecting renewable energy production; the liability of State-controlled entities; the effects and implications of third-party funding; the duty to mitigate damages in the light of excessive damages awards; and improvements and issues relating to post-award enforcement, duration, and cost of ISDS. This book considers the ongoing deliberations and reform measures proposed by UNCITRAL’s Working Group III and provides insights into how several geographic regions and economic cooperation areas have sought to address the question of reform of the ISDS system, including the European Union, the Middle East, and the new United States-Mexico-Canada Agreement. With its much-needed and deeply informed balancing of investor and State rights and duties, this book will be welcomed by all who practise in the ISDS field, including arbitrators, State governments and non-governmental organizations, regional economic organizations, and international investors.
Damages in Investor-State Arbitration: Current Issues and Challenges addresses specificities of the assessment of damages in investor-state disputes, reflecting the tensions between the sovereignty and self-determination of states and their legal obligations towards foreign investors. These tensions are primarily present in the context of compensation for expropriation, but other commitments of host states undertaken in bilateral investment treaties and contracts with foreign investors may also be in conflict with changing political and economic circumstances. With this background, the calculation of damages becomes a complex endeavor in each case. The lack of valuation principles that are uniformly accepted and implemented leads to uncertainty and unpredictability in practice. The present analysis tries to identify the most important issues and challenges, such as the choice of the valuation date, appropriate valuation methods, moral damages, and the awarding of interest.