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This introductory chapter examines the distinction between ratio decidendi and obiter dictum, as a starting point of his subsequent consideration of the background and aftermath of the dictum on obligations erga omnes. The International Court's pronouncement on obligations erga omnes addressed arguments put forward by the parties in the pleadings of the Barcelona Traction case, was unanimously endorsed by the International Court's members, and has been acquiring increasing influence ever since. The characteristic feature of universality of these obligations identified by the International Court (in addition to the element of solidarity in that every state has a legal interest in their protection) raises the complex theoretical question of how to reconcile the consensual nature of relations among states with the existence of obligations erga omnes, which bind states irrespective of consent. This aspect is a principal subject of investigation in this book.

Heralding the legal analysis of the practice of treaty shopping in Part II of the book, Chapter 3 sets out to analyse the (customary) international law of diplomatic protection as relevant for the question of changes of nationality. Investment arbitral tribunals, when having to decide on whether a claim involving treaty shopping is valid or not, are often tasked to determine whether certain leading cases referring to customary international law may be applied in the investment context. Chapter 3 examines the concept of nationality under international law both for natural and legal persons, discusses in depth the implications of the Nottebohm, Barcelona Traction, and Diallo decisions of the International Court of Justice for international investment law, and assesses the relevance of the (customary) continuous nationality requirement for the practice of treaty shopping in international investment law.

Equity first made its way in international decision-making through claims commissions and early arbitration tribunals, whereupon it started to be incorporated in the jurisprudence of international courts. Today, equity in international law is often associated with ICJ judgments, especially those involving maritime boundary delimitation. Recourse to equitable considerations in this field evolved over time, hardening into something very much approximating a method of equitable delimitation. However, iconic a status though the treatment of equity in the delimitation of maritime boundaries may have reached, equity is relevant to all of international law. In effect, some of the most interesting applications of equity have been made by interstate tribunals deciding other types of disputes. The chapter reviews ‘classic’ pronouncements on equity by international courts and tribunals and documents this jurisprudential history that conditions how we perceive equity in international law.

At a time where the future of investment law is often reinvented, this exercise of juris-fiction aims at exploring the relationship between the Barcelona Traction judgment and the course of foreign investment law to determine whether there was room for another evolution. Relying on a theoretical approach that combines normativism with legal realism in an original way, the study looks at different turning points in the course of foreign investment law in order to isolate those which appear as contingent, ie those which could have happened as they could have not happened. Such an enquiry leads to assessing the relative weight that the Barcelona Traction case has played in the remarkable expansion of investor-state dispute settlement. After a short introduction, section II introduces the methodology and used concepts. Section III looks at a few events in the history of foreign investment law in order to distinguish what was contingent and what was unavoidable while, at the same time, identifying what could be turning points. After having set the attention on the Barcelona Traction judgment as a contingent turning point among others, section IV further assesses the causality link between the judgment and foreign investment law through an exercise of imagination in which are considered not only the possible but also the likely effects of a different outcome to the case. By way of conclusion, section V suggests that the Barcelona Traction judgment itself, rather than foreign investment law, was, however, so tightly constrained that it could hardly have been different. It however highlights that the same cannot be said of the Diallo judgment, thus showing that contingency is often related to legal indeterminacy.

Chapter 7 traces a ‘road not taken’ in the history of regulating global corporations in pursuit of economic democracy, the conditions that led to its failure, and the emergence of the contemporary regime that separates market and politics. The late 1960s saw a rare moment of unity in the struggle over the regulation of corporations among decolonized nations, which together formed the New International Economic Order and civil society of the Global North in a bid to defy unruly corporations. While North–South opposition to corporate power gained traction, the tensions between capital-exporting countries were augmented. These conditions opened a window of opportunity for a new international policy regime to regulate global corporations. But this window would not remain open for long. In the aftermath of the Barcelona Traction Case (1970), capital-exporting countries sought an alternative legal framework of a new regime of international investment law and redefined the normative content of corporate responsibility in human rights terms.

This chapter discusses a share certificate issued by the defunct Barcelona Traction company, and explores the layers of its meaning and significance. First, to the general public it tells the story of a Canadian company, with Spanish subsidiaries, whose shares were mainly owned by Belgian citizens. Second, it reminds lawyers of the dispute between Belgium and Spain before the International Court of Justice, in the matter of the corporate hijacking of the company at the hands of Francisco Franco’s cronies. Third, it evokes to international jurists controversial technicalities like the nationality of transnational corporations and the nature of state obligations owed erga omnes, that is, to the international community. The chapter illustrates how a piece of paper has—within a certain epistemic circle—quasi-mystical connotations, speaking to the promises and the unfulfilled potential of international law.

This chapter examines the Court's contribution to the development of international environmental law. It begins by reviewing two cases that, while not directly concerning issues of environmental law, provide a conceptual basis for its development: Corfu Channel and Barcelona Traction. It then discusses subsequent cases brought before the ICJ. The ICJ's jurisprudence on environmental issues can perhaps best be seen as a gradual rapprochement: after cautious beginnings, the Court has embraced international environmental law and today can be seen as one of its advocates.