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The Role of the Domestic Law of the Host State in Determining the Jurisdiction ratione materiae of Investment Treaty Tribunals: The Partial Revival of the Localisation Theory? focuses on the largely unexplored role of the host state law in jurisdiction ratione materiae of investment treaty tribunals. Given domestic law’s essential role in subject-matter jurisdiction, and in light of the broader functions of host state law and host state courts, the author argues that the dormant “localisation” theory has been partially revived in contemporary investment treaty law.
With the successful introduction in 2010 of the Czech Yearbook of International Law, Professor Alexander J. Bělohlávek and Professor Naděžda Rozehnalová, the editors, present the 2011 volume of this ambitious project. The second volume focuses on the admittedly controversial topics relating to a shift from the investors’ viewpoints on investment protection to the contrasting viewpoints of the host states, which are facing growing numbers of alleged claims by investors. Volume II has set as its objective to plot the shift in the paradigm towards a new balance between investors and host states in the investment protection system. Such a shift can be observed in the rising number of counterclaims brought by host states against investors, by the introduction of new standards for evaluation of investments in light of the good faith of the investor at the time of an investment, and by the choice of an absolute means of protection of a host state's interest against investor claims by termination of an existing investment treaty. These topics represent pieces of the whole mosaic of this problem, to which the second volume of the Czech Yearbook of International Law is dedicated to a wide professional audience. The Czech Yearbook of International Law (CYIL) is a collective effort by the following persons and institutions
Traditionally, international investment law was conceptualised as a set of norms aiming to ensure good governance for foreign investors, in exchange for their capital and know-how. However, the more recent narratives postulate that investment treaties and investor–state arbitration can lead to better governance not just for foreign investors but also for host state communities. Investment treaty law can arguably foster good governance by holding host governments liable for a failure to ensure transparency, stability, predictability and consistency in their dealings with foreign investors. The recent proliferation of such narratives in investment treaty practice, arbitral awards and academic literature raises questions as to their juridical, conceptual and empirical underpinnings. What has propelled good governance from a set of normative ideals to enforceable treaty standards? Does international investment law possess the necessary characteristics to inspire changes at the national level? How do host states respond to investment treaty law? The overarching objective of this monograph is to unpack existing assumptions concerning the effects of international investment law on host states. By combining doctrinal, empirical, comparative analysis and unveiling the emerging 'nationally felt' responses to international investment norms, the book aims to facilitate a more informed understanding of the present contours and the nature of the interplay between international investment norms and national realities.
This overview illustrates that there is a gap in our knowledge of how domestic courts handle investor-state disputes. As it turns out, some foreign investors use the domestic courts of the host State prior to initiating investment treaty arbitration. Subject matter-wise these cases are very diverse and not all of them are initiated by investors against the host State. Moreover, in the four countries analysed investors often appealed to the highest courts of the land, but they lost more cases than they won. These findings should help UNCITRAL Working Group III conceptualize the meaning of 'investor-state dispute' and the relationship between domestic and international methods of ISDS. It concludes by inviting further empirical research to understand how domestic courts handle investor-state disputes. This in turn can help us develop normative arguments as to why domestic courts should be included in the reform process.
This is a practice-oriented guide, including text, commentary, tables and index, for anyone dealing with the International Centre for Settlement of Investment Disputes (ICSID).
In Jurisdiction and Admissibility in Investment Arbitration, Filippo Fontanelli offers an analysis of the subject for practitioners and scholars. The author undertakes two converging studies: first, the practice of investment tribunals is surveyed to provide a representative overview of how jurisdiction and admissibility operate in arbitration proceedings. Second, these concepts are studied in the wider framework of public international law litigation, in the attempt to solve the definitional issues, or at least trace them back to their theoretical background. The analysis shows that the confusion prevailing in investment arbitration is largely a legacy of the comparable confusion that affects the notions of jurisdiction and admissibility in all kinds of dispute settlement under international law. Whilst the confusion is often irrelevant in the practice, some instances arise where it affects the outcome of the proceedings. The essay discusses some of these instances and recommends adopting a novel approach, which hinges on judicial discretion as the critical element of admissibility.
The justification that ITA ensures that investor-State disputes are denationalized has received less empirical attention. Investment law literature has mainly focused on the purpose of ITA for bypassing domestic courts, on 'fork-in-the-road' (FITR) clauses, and on introducing an exhaustion of local remedies requirement. Empirical studies that concern the role of domestic courts in IIL have mainly focused on the post-award phase, more specifically on issues surrounding the domestic enforcement and setting aside of international arbitral awards. This chapter, however, departs from these approaches and asks a novel question, which to my knowledge has yet to be discussed in an empirical way in legal academia: Why do or should investors resort to the courts of the host country prior to investment treaty arbitration (ITA)?
When a host state discriminates or otherwise treats a foreign investor illegally, under substantive commitments made (usually nowadays under an investment treaty concluded with the investor's home state), the investor not infrequently brings an investor-state dispute settlement (ISDS) arbitration claim against the host state. What does or should happen when the foreign investor also brings a concurrent claim before the domestic courts of the host state? Our analysis shows that a surprising proportion of investment treaties allow this possibility, without taking precautions to coordinate them. Such concurrent claims might incentivize domestic courts to speed up procedures, improve local law in light of international standards, or enable a fruitful dialogue among adjudicators. Yet they also raise concerns related to inefficiencies, potentially conflicting outcomes, and the rule of law more generally. Our article shows how and why some high-profile concurrent claims have emerged against Australia (by Philip Morris, challenging its tobacco plain packaging laws) and Germany (by Vattenfall, challenging the phaseout of nuclear power plants), and can arise in other contexts due for example to the greater protections provided to investors under international compared to domestic public law. Both cases contributed to a wider backlash against ISDS arbitration, leading to various new initiatives and ongoing policy debates in various fora. Accordingly, our article also considers what could be done to manage more effectively this issue of concurrent proceedings.
This volume shows how investment arbitration may be reformed to achieve both increased investment flows and improved access to justice.