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This chapter draws on the purposive analysis from the previous chapter to consider how ITA can be understood in terms of a device for implementing certain areas of international public policy and international law, and how in this way it fits within the broader structures of international law and public policy implementation. The role of ITA in this regard covers three areas: (1) the prevention and settlement of international disputes; (2) the implementation of settlements to disputes and certain areas of public policy generally, covering territorial status outcomes, ‘state-building’ (including ‘saving failed states’) and liberal governance (including the ‘earned sovereignty’ paradigm), and the exploitation of natural resources; and (3) the promotion of international policy in the area of peace and security, including peacemaking, peacebuilding, and peacekeeping. The chapter also compares ITA with other international implementation modalities (e.g., international human rights tribunals) and argues that ITA amounts to one of the most intrusive forms of international implementation.

The resolution of disputes related to issues of fresh water scarcity, degradation, and access to water are evident in practice. There is a staggering diversity of institutions with judicial or quasi-judicial authority over these matters, as well as diplomatic means which can help settle these various disputes. A trend towards variation and multiplication of available mechanisms for resolving water-related disputes can be observed. As a consequence of both inter-state and mixed-party disputes concerning water, international courts and tribunals have amassed growing bodies of decisions in water law, and their reliance on the case law of other jurisdictions suggests an evolving harmonization in this field. This cross-fertilization among traditional dispute settlement bodies has progressed concurrently with the development of novel procedures tailored to the uniquely collective interests at stake in natural resource disputes.

This chapter explores the effect of investment treaties and international investment law on the law of diplomatic protection. Specifically, it discusses the articles of International Centre for Settlement of Investment Disputes (ICSID) and the bilateral investment treaty (BIT). ICSID procedures for the settlement of disputes are frequently used in investment disputes and provide an alternative to diplomatic protection favoured by national States and their nationals. BITs incorporate different forms of arbitration for the settlement of investor-State disputes. Several treaties refer to different kinds of arbitration to which parties may agree. They also provide that in the absence of agreement between the parties on this matter the dispute shall be settled by arbitration according to a particular one of the mentioned forms.

This chapter examines how China resolves international disputes from the unique perspective of lawfare. It reviews the concept of lawfare and then invents a normative framework for analyzing lawfare. Furthermore, it examines China’s changing policies and practice in international adjudication in the context of the rise of China and the judicialization of international law. Relying on the normative framework for analyzing lawfare, this chapter analyzes how China understands and uses international law to handle the China-Philippines SCS arbitration and the China-U.S. trade war, which are two crises that China and the entire international community face.

This chapter discusses the concept of internationalized functional contracts; international responsibility of the corporation for violating the contract; and the standing of corporations before international dispute settlement bodies. It concludes that the contract for exploration and the private loan agreement are the only ones subject to international law, and the obligations these contracts produce for contracting parties are of an international law nature.

The existence of community interests is now accepted despite an ongoing discussion about the exact features and the ways and means of their establishment. However, considerable uncertainties remain as to the mechanisms of their enforcement. This chapter attempts to shed some light on the issue of enforcing community interests via international dispute settlement. In particular, it argues that the view that international law does not provide for an actio popularis glosses over the intricate problems raised with respect to implementation. Ultimately, possibilities exist to enforce some community interests by invoking international dispute settlement mechanisms. It is suggested that community interests may be grouped in at least two categories and that such categorization helps in identifying the appropriate mechanisms for enforcement.

This chapter discusses how the authority of the Appellate Body (AB) of the World Trade Organization (WTO) rapidly became extensive. It nonetheless remains fragile given geopolitical shifts that have helped catalyze the rise of neo-nationalist trade politics in the United States. The establishment of extensive AB authority represented a legalization leap in which international dispute settlement moved from limited narrow authority under the General Agreement on Tariffs and Trade (GATT) to significantly more expansive authority. However, the WTO is an interstate dispute settlement system, so private parties have no direct access to the AB. The AB thus confronts state pressure and at times shapes its decisions to facilitate WTO Member compliance with them. The AB’s authority appears threatened by the US refusal to approve the launching of the selection process to replace retiring AB members. The United States is reacting, in particular, to AB rulings against US import relief practices.

This chapter scrutinizes the procedure and practice of advocacy in the commercial world of investment arbitration with supplementary reference to the Iran-US Claims Tribunal and commercial arbitration. Focusing upon the procedural system of the International Centre for the Settlement of Investment Disputes, it identifies a range of issues concerning counsel conduct arising in practice as well as the particular challenges facing professionalization in the arbitral context. In exploring one of the fields most discussed in the context of professionalization of advocacy, it sets the scene for the consideration of legal and practical problems concerning professionalization considered in Chapter 9. It considers the professional ethics applicable to agents and lawyers and the problems arising in practice, including conflicts of interest and double deontology.

Traditionally, litigation has been a tool for dispute settlement in the international financial sector. The increasing involvement of parties from newly emerged economies and globalization has resulted in international arbitration being adopted more often as a means of settling financial controversies. A new institution called the Panel of Recognized International Market Experts in Finance (“PRIME”) was established in 2012 at The Hague to assist judicial bodies in the settlement of complex disputes in the financial sector. This chapter examines the origins, institutional setting, and participatory elements of PRIME and evaluates its effectiveness. After presenting a taxonomy of reasons most commonly cited for using international arbitration, the chapter presents a critical appraisal of the “philosophy” of PRIME when it is called upon to resolve complex international controversies.

Chapter 4 discusses international claims, that is, claims arising out of injury inflicted upon an individual by a foreign State in violation of international law. Such claims may be enforced either through diplomatic protection or by granting the injured individual himself the right to bring a case against the foreign State before an international dispute settlement body. The common idea is that claims of individuals against foreign States were solely asserted through diplomatic protection before the Second World War, whereas the right of individuals to petition international courts independently is a post-1945 phenomenon. By studying international claims practice in three historical periods (before the First World War, the interwar period, and after the Second World War), the present chapter tests this account against positive international law, and inquires whether the concept of international legal personality played a role in the contracting States’ choice of one method of dispute resolution over the other.

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.

This chapter first considers what developing and developed countries thought they were getting, and what they thought they were giving, when they entered into bilateral investment treaties (BITs). It then reviews what the evidence shows these countries in fact got and gave, and ends by considering what developed and developing countries are doing now that they better understand the deal they struck. While the jury is still out on the economic effects of BITs, BITs have managed to create, by introducing investor-state arbitration, a dispute settlement mechanism that is far superior to available alternatives, such as diplomatic protection and dispute settlement in domestic courts. The principal contribution of investment treaties therefore lies in their contribution to international dispute settlement.

Robin Broad and John Cavanagh demonstrate how one small country, El Salvador, long at the mercy of foreign powers and transnational corporations, has achieved near consensus that gold mining, and the destruction of water, land, and livelihood that go with it, must stop. Although not focused on a fossil fuel, the chapter highlights a similar resistance to destructive extraction. It challenges conventional notions of development, implicitly saying that wellbeing, not capital gains, is the most important return on investment. It shows how citizens, especially those whose livelihood depends on clean water and land, are in a struggle with the slow violence of short-term extraction and long-term toxicity. The case shows a struggle in which a transnational corporation can circumvent national sovereignty by reaching beyond national borders, in this case to the International Centre for Settlement of Investment Disputes, housed at the World Bank. Salvadoran activists are creating their own politics of resistance. Keeping gold in the ground becomes an example of what marginalized communities face as they seek a decent life, one at moral odds with “twenty-first-century realism.”

Despite its unbroken attractiveness, the international investment law regime has recently come under pressure to abandon its pre-occupation with investors’ rights and to focus more strongly on sustainable development concerns. This chapter critically reviews how arbitral jurisprudence has or has not reconciled sustainable development concerns with investment protection. Proceeding from the observation that most international investment agreements ought to be interpreted in accordance with Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT), it argues that it is neither necessary nor sufficient to change the substance of international investment law; instead, non-commercial concerns and State regulatory interests could more convincingly be reconciled with investment protection if arbitral tribunals faithfully and openly employed the applicable rules of treaty interpretation.

This chapter focuses on arbitrator challenges in International Centre for Settlement of Investment Disputes (ICSID) arbitrations. It considers the requirements of the relevant provisions of the ICSID Convention, arbitral pronouncements on the relationship between those provisions, and some further specific issues raised in ICSID arbitrations. In particular, it looks at whether the standard of ‘reasonable doubt’, which is applied to the disqualification of arbitrators in certain other regimes, is compatible with the provisions of the ICSID Convention. The relatively low proportion of challenges to ICSID arbitrators that have led to disqualification suggests that the threshold for a successful challenge in ICSID appears to be higher than alternative regimes.

The chapter analyses the recent shift in States’ practice concerning international investment obligations, arguing that States increasingly seek to create or extend the existing margin of appreciation in new investment treaties. Against this background, it explores the concept of margin of appreciation in European human rights law, recognizing it as an inspiration for both governments and arbitrators. Yet, the chapter cautions against mechanical transplantation of the ECtHR concept to the field of investment arbitration. While the chapter applauds deference based on the epistemic superiority of national experts or procedural qualities of a domestic regulatory process, it remains rather sceptical with respect to the role that should be played by democratic-based deference in the context of international investment arbitration. The chapter concludes with the observation that the governmental push for more regulatory discretion has broadened the margin of appreciation enjoyed by States.