Christina Binder
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199571345
- eISBN:
- 9780191705472
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199571345.003.0032
- Subject:
- Law, Public International Law, Private International Law
This chapter focuses on changed circumstances in investment law with a special focus on necessity. Section B first deals with the diverging findings of the different investment tribunals with respect ...
More
This chapter focuses on changed circumstances in investment law with a special focus on necessity. Section B first deals with the diverging findings of the different investment tribunals with respect to Argentina's necessity defence. After a brief description of the factual background and of the relevant standards under treaty law and the customary law of State responsibility, the tribunals' decisions will be discussed and a categorization of their approaches attempted. Section C analyzes the different approaches from a broader international law perspective. It is argued that the ‘separation/two-step approach’ which was adopted by the CMS Annulment Committee and the UNCITRAL tribunal is the one most in line with general international law.Less
This chapter focuses on changed circumstances in investment law with a special focus on necessity. Section B first deals with the diverging findings of the different investment tribunals with respect to Argentina's necessity defence. After a brief description of the factual background and of the relevant standards under treaty law and the customary law of State responsibility, the tribunals' decisions will be discussed and a categorization of their approaches attempted. Section C analyzes the different approaches from a broader international law perspective. It is argued that the ‘separation/two-step approach’ which was adopted by the CMS Annulment Committee and the UNCITRAL tribunal is the one most in line with general international law.
Hege Elisabeth Kjos
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199656950
- eISBN:
- 9780191746291
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199656950.003.0005
- Subject:
- Law, Public International Law
This chapter discusses the three factors that may lead to the primary application of national law: an agreement by the disputing parties to apply national law; considerations of host state ...
More
This chapter discusses the three factors that may lead to the primary application of national law: an agreement by the disputing parties to apply national law; considerations of host state sovereignty; and the national nature of the claim. National law will primarily apply when the parties have so agreed, or because of considerations of the host state's sovereign right to regulate activities on its territory. A more neutral choice-of-law determinant than state sovereignty is the nature of the claim. Thus, if the ‘essential basis’ of the claim is national in nature, such as is the case regarding claims for breach of contract, national law primarily applies. When investment tribunals apply national law to the merits of the dispute for any of the foregoing reasons, they could be seen to take on the role of agents of the national legal order in question in a way converse to how national courts are agents of the international legal order when they apply international law. International law may still play a role when the applicable national legal order contains gaps.Less
This chapter discusses the three factors that may lead to the primary application of national law: an agreement by the disputing parties to apply national law; considerations of host state sovereignty; and the national nature of the claim. National law will primarily apply when the parties have so agreed, or because of considerations of the host state's sovereign right to regulate activities on its territory. A more neutral choice-of-law determinant than state sovereignty is the nature of the claim. Thus, if the ‘essential basis’ of the claim is national in nature, such as is the case regarding claims for breach of contract, national law primarily applies. When investment tribunals apply national law to the merits of the dispute for any of the foregoing reasons, they could be seen to take on the role of agents of the national legal order in question in a way converse to how national courts are agents of the international legal order when they apply international law. International law may still play a role when the applicable national legal order contains gaps.
August Reinisch
- Published in print:
- 2008
- Published Online:
- March 2012
- ISBN:
- 9780199547432
- eISBN:
- 9780191701467
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199547432.003.0009
- Subject:
- Law, Public International Law
This chapter examines the general international law on the legality of expropriation. It analyses the relevant case law of investment tribunals in order to ascertain the relevant criteria for ...
More
This chapter examines the general international law on the legality of expropriation. It analyses the relevant case law of investment tribunals in order to ascertain the relevant criteria for assessing the legality of expropriations. The findings reveal that tribunals are willing to engage in a genuine investigation of whether the legality requirements of expropriation are fulfilled and that they are fairly consistent in requiring compensation in order to regard an expropriation as lawful.Less
This chapter examines the general international law on the legality of expropriation. It analyses the relevant case law of investment tribunals in order to ascertain the relevant criteria for assessing the legality of expropriations. The findings reveal that tribunals are willing to engage in a genuine investigation of whether the legality requirements of expropriation are fulfilled and that they are fairly consistent in requiring compensation in order to regard an expropriation as lawful.
Bradly J. Condon and Tapen Sinha
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199654550
- eISBN:
- 9780191747953
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199654550.003.0004
- Subject:
- Law, Environmental and Energy Law, Public International Law
This chapter analyses the limits that international investment agreements (IIAs) place on climate change measures and considers the consequences of these measures for attracting foreign investment. ...
More
This chapter analyses the limits that international investment agreements (IIAs) place on climate change measures and considers the consequences of these measures for attracting foreign investment. The study is based on specific provisions in NAFTA Chapter 11 and other IIAs, and the relevant jurisprudence from international investment tribunals. The discussions cover WTO law and IIAs; international investment and climate change measures; applying investment agreements to climate measures; performance requirements; non-discrimination obligations; minimum standard in customary international law; compensation for expropriation; and rights of investors versus right to regulate. The analysis shows that legitimate climate change regulation should not trigger liability to compensate foreign investors. However, this may not eliminate the chilling effect, since it is costly for States to defend against such claims even if they do not succeed.Less
This chapter analyses the limits that international investment agreements (IIAs) place on climate change measures and considers the consequences of these measures for attracting foreign investment. The study is based on specific provisions in NAFTA Chapter 11 and other IIAs, and the relevant jurisprudence from international investment tribunals. The discussions cover WTO law and IIAs; international investment and climate change measures; applying investment agreements to climate measures; performance requirements; non-discrimination obligations; minimum standard in customary international law; compensation for expropriation; and rights of investors versus right to regulate. The analysis shows that legitimate climate change regulation should not trigger liability to compensate foreign investors. However, this may not eliminate the chilling effect, since it is costly for States to defend against such claims even if they do not succeed.
René Urueña
- Published in print:
- 2014
- Published Online:
- November 2014
- ISBN:
- 9780199450633
- eISBN:
- 9780199084562
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199450633.003.0011
- Subject:
- Law, Public International Law
This chapter engages with the issue of precedent-formation and lawmaking by investment arbitration tribunals. International adjudication follows the Civil Law tradition according to which a court’s ...
More
This chapter engages with the issue of precedent-formation and lawmaking by investment arbitration tribunals. International adjudication follows the Civil Law tradition according to which a court’s decision is limited in scope and application to the particular case before it, not the common law principle of stare decisis that commands the judges to follow precedent. The chapter shows that a precedent is more than a subsidiary source of interpretation in international law. For it, Global Administrative Law fails on the narrative underlying investment arbitration as a technology of global governance. These reconstructive models do not engage much with the political forces involved in turning the spotlight on expertise. The chapter reconsiders critically the structures that led investment law to its political and doctrinal place in the general landscape of international law.Less
This chapter engages with the issue of precedent-formation and lawmaking by investment arbitration tribunals. International adjudication follows the Civil Law tradition according to which a court’s decision is limited in scope and application to the particular case before it, not the common law principle of stare decisis that commands the judges to follow precedent. The chapter shows that a precedent is more than a subsidiary source of interpretation in international law. For it, Global Administrative Law fails on the narrative underlying investment arbitration as a technology of global governance. These reconstructive models do not engage much with the political forces involved in turning the spotlight on expertise. The chapter reconsiders critically the structures that led investment law to its political and doctrinal place in the general landscape of international law.
Valentina Vadi
Lukasz Gruszczynski (ed.)
- Published in print:
- 2014
- Published Online:
- November 2014
- ISBN:
- 9780198716945
- eISBN:
- 9780191785627
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716945.003.0009
- Subject:
- Law, Public International Law, Comparative Law
The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific ...
More
The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific character. It shows that the practices in both areas express many similarities. Although none of the systems has developed an abstract and general standard of deference, the analysis of the jurisprudence shows that a considerable degree of deference is granted to States in this specific context. This deference expresses itself in dispute settlement bodies’ focus on ‘reasonableness’ rather than ‘correctness’ of specific scientific claims, showing that these bodies are well aware of their epistemic limitations. On the other hand, the chapter recognizes certain differences existing between the two systems. Investment tribunals remain more concerned with the overall quality of the regulatory process, while WTO panels are more active in testing the internal (scientific) legitimacy of measures.Less
The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific character. It shows that the practices in both areas express many similarities. Although none of the systems has developed an abstract and general standard of deference, the analysis of the jurisprudence shows that a considerable degree of deference is granted to States in this specific context. This deference expresses itself in dispute settlement bodies’ focus on ‘reasonableness’ rather than ‘correctness’ of specific scientific claims, showing that these bodies are well aware of their epistemic limitations. On the other hand, the chapter recognizes certain differences existing between the two systems. Investment tribunals remain more concerned with the overall quality of the regulatory process, while WTO panels are more active in testing the internal (scientific) legitimacy of measures.
Gus Van Harten
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199678648
- eISBN:
- 9780191757990
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199678648.001.0001
- Subject:
- Law, Public International Law
Investment arbitrators rely on sovereignty for their legal status just as investor-state disputes usually stem from disagreements about the role of the state in society. As a result, investment ...
More
Investment arbitrators rely on sovereignty for their legal status just as investor-state disputes usually stem from disagreements about the role of the state in society. As a result, investment arbitration is a vehicle for the exercise of sovereign authority and a site for contesting sovereign choices. This book investigates and evaluates the decision-making record and policy trajectory of international investment arbitration, from theoretical, doctrinal, and empirical perspectives. It analyses the extent to which the system used to resolve disputes impacts on the role of government, affecting diverse constituencies, as opposed to limiting itself to case-specific disputes between a single business enterprise and state entity. The book provides a review of known awards in order to determine the types of government measures that have triggered disputes. It investigates how investment arbitrators have exercised their authority in recent case law. It provides a review of the approaches adopted in the reasoning of investment treaty tribunals on questions of judicial deference and respect for sovereign decision-makers. In doing so, it determines whether investment tribunals have taken a predominantly assertive approach to investor protection, without regard to their relative lack of accountability, capacity, or proximity in some cases. This approach does not sit comfortably with the relative restraint seen by domestic and international courts in similar contexts.Less
Investment arbitrators rely on sovereignty for their legal status just as investor-state disputes usually stem from disagreements about the role of the state in society. As a result, investment arbitration is a vehicle for the exercise of sovereign authority and a site for contesting sovereign choices. This book investigates and evaluates the decision-making record and policy trajectory of international investment arbitration, from theoretical, doctrinal, and empirical perspectives. It analyses the extent to which the system used to resolve disputes impacts on the role of government, affecting diverse constituencies, as opposed to limiting itself to case-specific disputes between a single business enterprise and state entity. The book provides a review of known awards in order to determine the types of government measures that have triggered disputes. It investigates how investment arbitrators have exercised their authority in recent case law. It provides a review of the approaches adopted in the reasoning of investment treaty tribunals on questions of judicial deference and respect for sovereign decision-makers. In doing so, it determines whether investment tribunals have taken a predominantly assertive approach to investor protection, without regard to their relative lack of accountability, capacity, or proximity in some cases. This approach does not sit comfortably with the relative restraint seen by domestic and international courts in similar contexts.
Aniruddha Rajput
- Published in print:
- 2020
- Published Online:
- February 2021
- ISBN:
- 9780198869900
- eISBN:
- 9780191912771
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198869900.003.0016
- Subject:
- Law, Company and Commercial Law, Public International Law
This chapter analyses the prominent role of due diligence in international investment law. It points out that due diligence was relevant in this field as an element of customary law norms requiring ...
More
This chapter analyses the prominent role of due diligence in international investment law. It points out that due diligence was relevant in this field as an element of customary law norms requiring compliance with an international minimum standard for the treatment of aliens and prohibiting denial of justice, before modern day investment treaties were concluded. The chapter’s analysis reveals that due diligence underlies host states’ obligation to provide full protection and security and fair and equitable treatment. It underlines that also investors carry a responsibility of due diligence throughout the whole period of their investment and that an investor’s negligence can lead to loss of protection under investment treaties. The chapter argues that due diligence has emerged as a balancing paradigm between protection of foreign investors and regulatory freedom of host states.Less
This chapter analyses the prominent role of due diligence in international investment law. It points out that due diligence was relevant in this field as an element of customary law norms requiring compliance with an international minimum standard for the treatment of aliens and prohibiting denial of justice, before modern day investment treaties were concluded. The chapter’s analysis reveals that due diligence underlies host states’ obligation to provide full protection and security and fair and equitable treatment. It underlines that also investors carry a responsibility of due diligence throughout the whole period of their investment and that an investor’s negligence can lead to loss of protection under investment treaties. The chapter argues that due diligence has emerged as a balancing paradigm between protection of foreign investors and regulatory freedom of host states.
Christoph Schreuer
- Published in print:
- 2015
- Published Online:
- January 2016
- ISBN:
- 9780198739807
- eISBN:
- 9780191802775
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198739807.003.0016
- Subject:
- Law, Public International Law, Company and Commercial Law
This chapter deals with inter-temporal questions concerning jurisdiction in international dispute settlement. Drawing on the practice of the International Court of Justice, the Permanent Court of ...
More
This chapter deals with inter-temporal questions concerning jurisdiction in international dispute settlement. Drawing on the practice of the International Court of Justice, the Permanent Court of International Justice, and investment treaty tribunals, it posits that the basic rule is for jurisdiction to exist when the proceedings are initiated. This creates legal certainty as subsequent developments, including acts by the respondent, cannot defeat jurisdiction. This does not mean, however, that subsequent developments are irrelevant. On the contrary, if certain jurisdictional requirements are only met at a later point, this will usually provide the court or tribunal with jurisdiction. In appropriate cases, proceedings should therefore be suspended so that jurisdictional requirements can be met.Less
This chapter deals with inter-temporal questions concerning jurisdiction in international dispute settlement. Drawing on the practice of the International Court of Justice, the Permanent Court of International Justice, and investment treaty tribunals, it posits that the basic rule is for jurisdiction to exist when the proceedings are initiated. This creates legal certainty as subsequent developments, including acts by the respondent, cannot defeat jurisdiction. This does not mean, however, that subsequent developments are irrelevant. On the contrary, if certain jurisdictional requirements are only met at a later point, this will usually provide the court or tribunal with jurisdiction. In appropriate cases, proceedings should therefore be suspended so that jurisdictional requirements can be met.
Clara María López Rodríguez
- Published in print:
- 2020
- Published Online:
- January 2021
- ISBN:
- 9780198870753
- eISBN:
- 9780191913365
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198870753.003.0025
- Subject:
- Law, Public International Law, Comparative Law
This chapter critically analyses the role of indigenous peoples in international decision-making focusing on two areas of international law: human rights law as adjudicated by the Inter-American ...
More
This chapter critically analyses the role of indigenous peoples in international decision-making focusing on two areas of international law: human rights law as adjudicated by the Inter-American Court of Human Rights (Inter-American Court) and investment law as applied by investment arbitration tribunals. The chapter shows that indigenous peoples’ participation in the international legal system can be better facilitated through the recognition of indigenous peoples’ jurisdiction. Focusing on Peru as a case study, this chapter provides a better understanding of the concept of indigenous peoples’ jurisdiction, analysing its nuances and difficulties, but also the importance of regulating such jurisdiction at the domestic level.Less
This chapter critically analyses the role of indigenous peoples in international decision-making focusing on two areas of international law: human rights law as adjudicated by the Inter-American Court of Human Rights (Inter-American Court) and investment law as applied by investment arbitration tribunals. The chapter shows that indigenous peoples’ participation in the international legal system can be better facilitated through the recognition of indigenous peoples’ jurisdiction. Focusing on Peru as a case study, this chapter provides a better understanding of the concept of indigenous peoples’ jurisdiction, analysing its nuances and difficulties, but also the importance of regulating such jurisdiction at the domestic level.
