Extracting Legal Causation From International Investment Law

Whenever the question of state responsibility in investor-state arbitration arises, the following causal question must be analysed: has the state conduct caused the investor's investment loss? To answer this question, arbitral tribunals apply the approach advocated for by the International Law Commission, which in turn is the approached used by domestic courts. This is a two-tiered approach where the factual causality and legal causality of the state conduct is tested. This contribution argues that adopting this approach into the jurisprudence of international investment law was an error. Specifically, the process of testing for legal causation has no place in international investment law and should be extracted from it. Not only are attempts by arbitral tribunals to test for legal causality likely to lead to low-quality legal reasoning, which can only adversely impact the legitimacy of the international adjudication of investor-state disputes, the reasons for undertaking this process in domestic tortious disputes are not applicable to investor-state disputes. This extraction of legal causation will not lead to indeterminate state liability towards investors. For a number of reasons, the problem of infinite causality in legal disputes is more theoretical than real. With this extraction, a bespoke approach to analysing causal questions in international investment law is produced.

Transnational investment involves a variety of actors (States, public and private legal entities, and natural persons) whose relationships are governed by rules and legal instruments belonging to different legal systems. This book provides a systematic study of the sources of rights and obligations in the field of transnational investment, and their coordination and interaction. It focuses primarily on the network of over 3,000 Bilateral Investment Treaties, international investment contracts, customary international law, the main multilateral treaties, national legislation, international case law and general principles of law. The book, firmly based on State practice, arbitral awards and national decisions, is indispensable to fully appraise the nature and content of the claims of private investors as well as to identify the law applicable in investment arbitration.

Often derided for its asymmetry, this book shows how investors can be held to account in international investment law.

The focus of this edited volume is the often-overlooked importance of secondary rules of international law. Secondary rules of international law-such as attribution, causality, and the standard and burden of proof-have often been neglected in scholarly literature and have seen fragmented application in international legal practice. Yet the systemic nature of international law entails that coherent and consistent application of such rules is a key element in reinforcing the legitimacy of decisions of international courts and tribunals. Accelerated development of international law and international litigation, coupled with the fragmented nature of the adjudicatory terrain calls for theoretical scrutiny and systemic analysis of the developments in the judicial treatment of secondary rules. This publication makes three important contributions to the study of secondary rules. First, it offers a comprehensive, expert doctrinal analysis of how standard of review, causation, evidentiary rules, and attribution operate in the case law of international courts or tribunals in fields spanning human rights, trade, investment, and humanitarian law. Second, it comparatively evaluates the divergent layers of meanings and normative expectations attached to secondary rules in international law scholarship as well as in the judicial practice of international courts and tribunals. Finally, the book investigates the role that secondary rules play in the development of the primary rules in international law and for the legitimacy of the decisions of international courts and tribunals. Earlier scholarly works have not problematized the role of secondary rules of international law in adjudication thoroughly. Secondary Rules of Primary Importance in International Law seeks to fill this gap by emphasizing the consequential nature of these secondary rules and argues that the outcome of litigation is fundamentally shaped by the exact standard of proof, standard of review, or attribution basis that is chosen by adjudicators. As such, the book offers an important resource for the study and practice of international law against the backdrop of the wide-ranging and fragmented nature of international adjudication.

Social License and Dispute Resolution in the Extractive Industries is a broad collection offering insights from both renowned academics and practitioners on the intersection of international dispute resolution and the social license to operate in the extractive industries.

Contemporary and Emerging Issues on the Law of Damages and Valuation in International Investment Arbitration, edited by Christina L. Beharry, examines a broad range of damages topics, building on basic principles and surveying current developments to identify trends in the jurisprudence.

In this work, Filippo Fontanelli analyses the notions of jurisdiction and admissibility in investment arbitration. The first part takes stock of the arbitration practice. The second part interrogates these notions within the wider theory of international law and reveals the effects of their inherent fuzziness on the work of investment tribunals.