International Investment Law And Legal Theory

A theoretical analysis of the structure of expropriation in investment law, investigating the foundations for contemporary scholarship and practice.

"If there is still doubt that the fragmentation of international law is very real, one need only take a look at the International Court of Justice's (ICJ) 2007 and 2010 judgments in Ahmadou Sallo Diallo.1 In that case, the Court pointedly ignored the very closely interwoven customary international law on the protection of foreigners and their property abroad and the treaty-based investment law and arbitral case-law. In its 2007 judgment on preliminary objections, it 'note[d] that, in contemporary international law, the protection of the rights of companies . . . [is] essentially governed by bilateral or multilateral agreements for the protection of foreign investments'"--

This important book examines the development of soft law instruments in international investment law and the feasibility of a 'codification' of the present state of this field of international economic law. It draws together the views of international experts on the use of soft law in international law generally and in discrete fields such as WTO, commercial, and environmental law. The book assesses whether investment law has sufficiently coalesced over the last 50 years to be 'codified' and focuses particularly on topical issues such as most-favoured-nation treatment and expropriation. This timely book will appeal to academics interested in the development of international law and legal theory, to those working in investment law, Government investment treaty negotiators and arbitration practitioners.

International investment law is one of the fastest growing areas of international law. It has led to the signing of thousands of agreements, mostly in the form of investment contracts and bilateral investment treaties. Also, in the last two decades, there has been an exponential growth in the number of disputes being resolved by investment arbitration tribunals. Yet the legal principles at the basis of international investment law and arbitration remain in a state of flux. Perhaps the best illustration of this phenomenon is the wide disagreement among investment tribunals on some of the core concepts underpinning the regime, such as investment, property, regulatory powers, scope of jurisdiction, applicable law, or the interactions with other areas of international law. The purpose of this book is to revisit these conceptual foundations in order to shed light on the practice of international investment law. It is an attempt to bridge the growing gap between the theory and the practice of this thriving area of international law. The first part of the book focuses on the 'infrastructure' of the investment regime or, more specifically, on the structural arrangements that have been developed to manage foreign investment transactions and the potential disputes arising from them. The second part of the book identifies the common conceptual bases of an array of seemingly unconnected practical problems in order to clarify the main stakes and offer balanced solutions. The third part addresses the main sources of 'regime stress' as well as the main legal mechanisms available to manage such challenges to the operation of the regime. Overall, the book offers a thorough investigation of the conflicting theoretical positions underlying international investment law, testing their worth by reference to concrete issues that have arisen in the jurisprudence. It demonstrates that many of the most important practical questions arising in practice can be addressed by a carefully dosed resort to theory.

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.

There is at present much disenchantment with the rules governing international investment. Conceived as a set of disciplines establishing thresholds of tolerable state behaviour, dissatisfaction has precipitated acts of resistance in various parts of the world. Resisting Economic Globalization explores the magnitude of the legal constraints imposed by these rules and institutions associated with the worldwide spread of neoliberalism. Much contemporary theorizing has given up on national states as a locus for countering the harmful effects of economic globalization. Though states provide critical supports to the construction and ongoing maintenance of transnational legal constraints, David Schneiderman argues that states remain crucial sites for resisting, even rolling back, investment law disciplines. Structured as a series of encounters with selected critical theorists, the book contrasts theoretical diagnoses with recent episodes of resistance impeding investment law edicts. This novel approach tests contemporary hypotheses offered by leading political and legal theorists about the nature of power and the role of states and social movements in facilitating and undoing neoliberalism's legal edifices. As a consequence, the foundations of transnational legality become more apparent and the mechanisms for change more transparent.

The Investment Treaty Forum of the British Institute of International and Comparative Law brings together eminent practitioners, arbitrators, and academics in the dynamic area of international investment law. Members of the Forum, under the British Institute's auspices, examine and debate the legal and policy issues presented by the increasingly complex web of investment treaties and the disputes that arise under them. The Forum held two conferences in 2007. This present volume compiles the papers presented at the conferences, as well as a transcript of the round-table discussion on the subject of 'precedent' in international investment. Part I of the book is devoted to remedies, compensation, and valuation in international investment disputes. This under-theorized area of law is ripe for further exploration by lawyers and economists, and the papers in this volume present a framework for further inquiry. Part II addresses the jurisprudence emerging from investment arbitration tribunals on issues such as fair and equitable treatment, 'umbrella' clauses, and nationality of claimants. The overarching question addressed by the papers, and by the concluding roundtable, is the relationship of those decisions with general international law and whether or not there is, or should be, a doctrine of precedent in investment treaty arbitration.

The term ‘attribution’ refers to the means by which it is ascertained whether the State is involved in a dispute governed by international law. The notion of attribution is primarily used to determine if the State is responsible for the wrongful conduct of persons or entities with links to the State. In the context of international investment law, the exponentially growing arbitration jurisprudence arising from international investment agreements (IIAs), especially bilateral investment treaties (BITs), reflects the extent and risk of attribution determined in investment relationships that often involve State enterprises. This book, the first in-depth study of the uses of attribution in international investment law, provides a deeply informed analysis of the treatment of attribution in applicable legal instruments and investment arbitration jurisprudence worldwide. The analysis responds to such questions as the following: - When is a conduct attributable to the State for the purposes of its responsibility under international investment law? - What legal instruments govern the question of attribution under international investment law? - In what circumstances is the State the proper party to a contract entered into by a State-owned enterprise with an investor protected by an investment treaty? - How can State policymakers minimise their international law responsibility within the existing framework of attribution in international investment law? - How can investors maximise their protection within the existing framework of attribution in international investment law? Also covered are the procedural treatment of attribution by investment tribunals, explication of such broad-brush wordings as ‘elements of governmental authority’ and ‘under the direction or control’, and the impact of the rise of State-owned enterprises as investors. Ongoing and future trends in the jurisprudence are also taken into account. A one-stop reference on the question of attribution in international investment law, the analysis extracts identifiable commonalities among instruments and rulings, turning them into useful practice tools. This book will prove invaluable for practitioners advising States or investors in investment disputes. More generally, this book will be welcomed by arbitrators, in-house counsel for companies doing transnational business and international arbitration centres, as well as by academics in international arbitration.