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This chapter has two main objectives. The first is to provide an overview of the evolution of Canada's approach to investment protection, with particular focus on dispute settlement. The second objective is to identify the essential elements that now underpin Canada's approach to investment protection. It argues that principles central to the Canadian legal system, such as procedural fairness and due process, are now incorporated as quasi sine qua nons in Canada's approach to investment protection. These principles are consonant with the ICSID Convention's objectives to settle investment disputes in an orderly manner and to protect, to the same extent and with the same vigour, the investor and the host State in the general interest of development.

This chapter reflects on the current state and possible future of investment arbitration in international economic law. It begins by analyzing why this system is so appealing and so widely accepted. It then considers the developments that may threaten the integrity of the investment arbitration process and ultimately lead to a loss of confidence by the users of this system, that is, investors and States. Only after such a critical examination will it be possible to make an informed judgement on the future of investment arbitration. The chapter addresses the damaging potential of inconsistent case law and poorly reasoned opinions in order to assess the requirements of a dispute settlement system which retains acceptance through predictability and fairness.

This chapter considers some of the controversial issues addressed by different arbitral tribunals concerning the application of most favoured nation (MFN) clauses to dispute settlement. It begins with a brief discussion on the concept, origin, and purpose of MFN clauses. It then discusses the application of MFN clauses to dispute settlement.

This chapter discusses to what extent the EctHR can replace or complement international arbitration bodies, and under what conditions investors can and should file their claim at the ECtHR rather than at the traditional bodies for the settlement of investment disputes. The analysis focuses on a variety of indicators concerning jurisdiction and merits. By means of its judicial protection of property rights and ‘possessions’, the ECtHR already operates as one among many other European bodies responsible for the settlement of investment disputes. Resorting to the ECtHR can also entail significant disadvantages for investors, such as the lack of protection of indirect damages, the procedural requirement to first exhaust local remedies, and the risk of an only partial compensation. The chapter concludes that the ECtHR is no real alternative, but rather a remedy of second and last resort complement to traditional arbitral investment tribunals for investors.

This chapter examines the increasing number of international investment disputes where issues relating to environmental rights, sustainable development and foreign investment protection were inextricably intertwined, in order to determine whether arbitrators have approached such interrelationships by taking environmental and sustainable development principles into consideration. It identifies the status and relevance accorded to environmental principles and obligations, either of a customary or treaty nature, in investor-state disputes. The chapter's purpose is to shed into light the extent to which arbitrators are prepared to take into account the obligation of host states to protect the environment and their citizens' right to a healthy environment. The final part of the chapter focuses on the relationship between investment law and the exercise of environmental participatory rights (information, public participation, and access to justice in environmental matters) at the national level.

This chapter illustrates the risk of false friends in international arbitration by looking at one example of transplant from public international law into commercial law, and one from commercial arbitration into investment arbitration. The purpose of this exercise is to draw attention to how investment arbitration and commercial arbitration, in spite of clear parallels between the two, cannot be considered as fully corresponding to each other and cannot always automatically be used as a source for each other.

The spate of recent investment arbitration cases against repeat-respondent States, as well as the increasingly strident legal and political pushback these cases have begun to engender, call into question in various ways whether ICSID arbitration will continue to be a useful and legitimate forum for resolving international disputes. This chapter evaluates the continued viability of ICSID arbitration in light of these developments. Section A describes the relative legal finality and binding nature of ICSID awards as compared to other forms of adjudicating international disputes and observes that an individual ICSID award entails one of the legally most final and binding dispositions in international law, subject only to a few narrow ‘remedies’ against an award (the most notable being annulment). Section B describes that there is no formal general doctrine of binding precedent or stare decisis in ICSID arbitration and thus how an ICSID award, final and binding though it may be for an individual case, does not bind subsequent tribunals faced with the same or similar issues. Finally, it discusses the recent decision by the ad hoc (annulment) committee in CMS Gas Transmission Co v Argentine Republic, which shows that the ICSID system not only maintains the finality of individual awards, but also provides an opportunity for such a committee at least to comment on the reviewed tribunal's application of the law in a particular case and thus contribute to the corpus of international investment law.

This chapter presents a brief tribute to Christoph Schreuer as a distinguished scholar and personal friend. The chapter details a close friendship with Schreuer dating back to the 1980s, when together with Waldemar Hummer, the first version of the Austrian Handbook of International Law in 1983 was edited. The chapter says that Schreuer is not only an outstanding expert on international law but has acquired a remarkable Allgemeinbildung, which the translation ‘general knowledge’ does not adequately express; at the same time, he is a gentleman, the chapter states, a type of person for which no adequate German word exists.

This chapter presents a brief description of the achievements of Christoph Schreuer, from his excellence as a law student at Cambridge to his teaching career. His best known work is Hersch Lauterpacht Memorial Lectures of 1992 on State Immunity and, more recently, his massive commentary on the ICSID Convention. His status as an international lawyer is now recognized by his holding the Chair of International Law at Vienna and by his membership of the Austrian National Group in the Permanent Court of Arbitration.

This chapter looks at the immediate origins of the ICSID Convention, in the years 1955 to 1962. It discusses the proposed multilateral approaches to the promotion of private foreign investment, the World Bank's consideration of proposals, the role of ‘Black's Bank’ in the settlement of investment disputes, and the Bank begins to work on the initiative.

This chapter reviews the use of diplomatic protection as a means of vindicating the rights of foreign investors. It is an appropriate time to reconsider the issue as the International Court of Justice (ICJ) will have to determine the current scope of general international legal protection for foreign investors in the continuing Diallo case. In the overwhelming majority of cases, a method other than diplomatic protection will be used to settle investment disputes. Nonetheless, given that cases such as that concerning Diallo can arise from time to time, the ICJ may need to provide some means by which such disputes can be effectively resolved. However, given the sensitive sovereignty issues in such cases, it would be no surprise if the ICJ avoids getting into the details of international investment law and gives a narrow fact-based decision in Diallo without engaging in judicial creativity, preferring to leave the further development of investor protection rights to treaty-based regimes.

This chapter considers the option of investors' submitting their claims to human rights bodies. It shows that only the European Court of Human Rights provides an alternative that could seriously be considered. Outside Europe, ICSID remains the only viable procedural mechanism if no other dispute settlement procedure has been agreed upon by the parties.

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 argues that the ‘brave new world’ of international dispute settlement turns out to have a great deal of the old world in it too. International law expands through processes of accumulation and accretion rather than of displacement, as domestic legal systems commonly develop. It is not infrequent that States are bound by multiple obligations contained in coexisting international instruments, so that the same conduct of a State may be susceptible of breaching more than one obligation at a time. Multiple obligations regulating the same conduct are perfectly capable of coexistence, with displacement occurring in cases of inconsistency, displacement which will be governed by the principles of lex specialis and lex posterior. Equally, States may be subjected, at the same time, to multiple dispute settlement mechanisms with respect to the same conduct, all of which are susceptible of coexistence lacking any manifest inconsistency. There is a real conflict in the context of different tribunals acting consistently with one another and maintaining the fabric of the law, a problem which is arising with increasing frequency.

This chapter reviews how arbitral tribunals have dealt with precedent, in particular how they have weighed its relevance, and the role of values and doctrine in shaping precedent. It argues that to the extent that tribunals apply international law, judicial decisions are at least evidence of what the law is. When tribunals elaborate their reasons for finding support in a particular precedent or explaining why it is not relevant to the issues under consideration, this contributes to the certainty of the law and its development. In this respect, precedents ignored or accepted without reasoning are missed opportunities.

This chapter focuses on key aspects of the cases brought to ICSID in its first two decades. Section I examines the ways in which successive Secretaries-General handled the registration of requests to institute proceedings and, in particular, their ‘screening’ of such requests. Patterns in the constitution of the conciliation commissions and arbitral tribunals are traced in Section II, as are the first experiences of the Centre with the resignation and challenge of arbitrators. Section III discusses the distinctly pragmatic approaches of arbitral tribunals in this period to jurisdictional issues, especially the requirement of consent. There was controversy in the early 1980s as to the availability, in the context of an ICSID case, of court-ordered provisional measures. The controversy is reviewed in Section IV, which also looks at the first instances of arbitral provisional measures under Article 47 of the ICSID Convention. Section V examines the underlying interpretations of Article 42(1) of the Convention. Three ad hoc committee decisions rendered under Article 52 of the Convention are the subject of Section VI. Most of the few court proceedings for the enforcement of ICSID awards took place in these early years; the proceedings are reviewed in the concluding Section VII.

This chapter describes some of the considerations to be taken into account in evaluating the standing of a shareholder to present claims for losses incurred due to interference with the company's assets, addressing the regime under customary international law as well as several significant decisions under investment treaties. Protections under customary international law and protections under treaties are considered.

This chapter addresses some of the challenges that the International Centre for Settlement of Investment Disputes (ICSID) is facing, especially those concerning the legitimacy of the international investment dispute resolution system that ICSID serves. In particular, it focuses on challenges concerning ICSID's independence and governance, as well as on the relatively sudden increase in the Centre's caseload and case law. The consequences of this increase on international investment law are examined from the perspectives of ICSID's users, and the Centre itself.