The Public Order Exception In International Trade Investment Human Rights And Commercial Disputes

In the process of resolving disputes, it is not uncommon for parties to justify actions otherwise in breach of their obligations by invoking the need to protect some aspect of the elusive concept of public order. Until this thoroughly researched book, the criteria and factors against which international dispute bodies assess such claims have remained unclear. Now, by providing an in-depth comparative analysis of relevant jurisprudence under four distinct international dispute resolution systems – trade, investment, human rights and international commercial arbitration – the author of this invaluable book identifies common core benchmarks for the application of the public order exception. To achieve the broadest possible scope for her analysis, the author examines the public order exception’s function, role and application within the following international dispute resolution systems: relevant World Trade Organization (WTO) agreements as enforced by the organization’s Dispute Settlement Body and Appellate Body; international investment agreements as enforced by competent Arbitral Tribunals and Annulment Committees under the International Center for Settlement of Investment Disputes; provisions under the Inter-American Convention of Human Rights and the European Convention of Human Rights as enforced by the Inter-American Court of Human Rights and the European Court of Human Rights, respectively; and the New York Convention as enforced by national tribunals across the world. Controversies, tensions and pitfalls inherent in invoking the public order exception are elucidated, along with clear guidelines on how arguments may be crafted in order to enhance prospects of success. Throughout, tables and graphs systematize key aspects of the relevant jurisprudence under each of the dispute resolution systems analysed. As an immediate practical resource for lawyers on any side of a dispute who wish to invoke or strengthen a public order exception claim, the book’s systematic analysis will be welcomed by lawyers active in WTO disputes, international investment arbitration, human rights law or enforcement of foreign arbitral awards. Academics and policymakers will find a signal contribution to the ongoing debate on the existence, legal basis, content and functions of the transnational public order.

The book considers the ways in which the international investment law regime intersects with the human rights regime, and the potential for clashes between the two legal orders. Within the human rights regime states may be obligated to regulate, including a duty to adopt regulation aiming at improving social standards and conditions of living for their population. Yet, states are increasingly confronted with the consequences of such regulation in investment disputes, where investors seek to challenge regulatory interferences for example in expropriation claims. Regulatory measures may for instance interfere with the investment by imposing conditions on investors or negatively affecting the value of the investment. As a consequence, investors increasingly seek to challenge regulatory measures in international investment arbitration on the basis of a bilateral investment treaty. This book sets out the nature and the scope of the right to regulate in current international investment law. The book examines bilateral investment treaties and ICSID arbitrations looking at the indicative parameters that are granted weight in practice in expropriation claims delimiting compensable from non-compensable regulation. The book places the potential clash between the right to regulate and international investment law within a theoretical framework which describes the stability-flexibility dilemma currently inherent within international law. Lone Wandahl Mouyal goes on to set out methods which could be employed by both BIT-negotiators and adjudicators of investment disputes, allowing states to exercise their right to regulate while at the same time providing investors with legal certainty. The book serves as a valuable tool, an added perspective, for academics as well as for practitioners dealing with aspects of international investment law.

'...This book [...] goes beyond stating what the law is and focuses on controversies occurring within this area of the law... an excellent introduction to this complex area of international law for newcomers to the subject' Kate Miles, Australian International Law Journal The updated edition of this acclaimed book offers a critical overview of the law of foreign investment, incorporating a thorough analysis of the principles and standards of treatment available to foreign investors in international law. It is authoritative and multi-layered, offering an analysis of the key issues and an insightful assessment of recent trends in the case law, from both developed and developing country perspectives. A major feature of the book is that it deals with the tension between the law of foreign investment and other competing principles of international law. In doing so, it proposes ways of achieving a balance between these principles and the need to protect the legitimate rights and expectations of foreign investors on the one hand, and the need not to restrict unduly the right of host governments to implement their public policy on the other, including the protection of the environment and human rights, and the promotion of social and economic justice within the host country. Many of the pioneering ideas that were advanced in the first edition of this book in 2008 have been taken up by governments and international organisations in their attempts to reform the investor-State dispute settlement mechanism and strike a balance between different competing principles in developing international investment law. Accordingly, this fourth edition captures the essence of the ongoing multiple reform processes -either planned or envisaged – currently underway.

This book offers a systematic analysis of the interaction between international investment law, investment arbitration and human rights, including the role of national and international courts, investor-state arbitral tribunals and alternative jurisdictions, the risks of legal and jurisdictional fragmentation, the human rights dimensions of investment law and arbitration, and the relationships of substantive and procedural principles of justice to international investment law. Part I summarizes the main conclusions of the 24 book chapters and places them into the broader context of the principles of justice, global administrative law and multilevel constitutionalism that may be relevant for the administration of justice in international economic law and investor-state arbitration. Part II includes contributions clarifying the constitutional dimensions of transnational investment disputes and investor-state arbitration, as reflected in the increasing number of arbitral awards and amicus curiae submissions addressing human rights concerns. Part III addresses the need for principle-oriented ordering and the normative congruence of diverse national, regional and worldwide legal regimes, focusing on the pertinent dispute settlement practices and legal interpretation methods of regional economic courts and human rights courts, which increasingly interpret international economic law with due regard to human rights obligations of the governments concerned. Part IV includes twelve case studies on the potential human rights dimensions of specific protection standards (e.g. fair and equitable treatment, non-discrimination), applicable law (e.g. national and international human rights law, rules on corporate social accountability), procedural law issues (e.g. amicus curiae submissions) and specific fundamental rights (e.g. the protection of human health, access to water, and protection of the environment). These case studies discuss not only the still limited examples of human rights discourse in investor-state arbitral awards; they also probe the potential legal relevance of investor-state arbitration for the judicial recognition, interpretation and balancing of primary rules, such as of investment law and human rights law, in the light of the principles of justice as defined by national and international law.

Jürgen Kurtz provides a theoretically grounded and doctrinally tractable framework to understand the relationship between international trade and investment law.

In General Principles of Law in Investment Arbitration, the authors address selected general principles of law, assessing their functions in investment arbitration. The resulting picture is that of a lively source that escapes doctrinal straitjackets and maintains its relevance.

Policies aimed at the expansion of transnational capital are sometimes implemented at the expense of growing social inequality and popular frustration in host countries. This timely and deeply researched volume identifies – and offers new insights into – the growing use of and reliance upon international environmental and human rights law in the arbitration of investor–State disputes. It presents a comprehensive and pragmatic approach to the most effective way to connect international investment law to the protection of human rights and the environment. Based on an analysis of 30 arbitral awards, this book demonstrates how recent investment treaty arbitration – and in particular respondent States’ argumentation in arbitral proceedings – highlights the human rights and environmental considerations connected with such factors as the following: the fair and equitable treatment (FET) clause; jurisdictional obstacles; treaty conflict; role of amici curiae; damages; tribunal’s dilution of the significance of environmental and human rights law; corporate social responsibility; free, prior, and informed consent; social license to operate; and (in)applicability of the systemic approach to the interpretation of investment treaties. As investment arbitration continues to be challenged by growing demands for greater public involvement and for participation of third parties that are affected by the proceedings, this book responds to the need to reshape the investment regime into more human rights and environmentally friendly system. It will prove an invaluable resource for arbitral institutions, academics, arbitrators, arbitration counsel, and other participants in investment treaty arbitration.

The COVID-19 pandemic has brought the debate on reform of the international investment agreement regime to the fore with renewed force. In this important and timely book, top professionals in the field collectively offer an in-depth investigation of the measures that States have taken, or failed to take, to deal with the pandemic’s consequences and whether these actions or inactions can be construed as investment arbitration risks. In an extensive overview of the impact of COVID-19 on States and investors – including perspectives from UNCTAD, the European Union, the United States, Russia, India, South Korea and the African Union – this comprehensive guide on State defences and investor protection mechanisms tackles such aspects of the debate as the following as affected by the pandemic: treatment of investors in times of pandemic and in the post-pandemic world; sufficient contribution to the economic development of the host State; disparities in bargaining power; and use of ‘pandemic power’ to accord preferential treatment. The final part of the book is dedicated to analysing case studies from around the world in the context of the pandemic and investor-State disputes. Understanding the way public health emergencies can shape international investment law is key to building a sustainable, stable investment environment. As the first detailed study of the post-pandemic development of investment law, this matchless collection takes a giant step toward reconciling the interests of foreign investors and sovereign States at various stages of economic development. With practical recommendations for both States and investors, it will be of immeasurable assistance to practitioners, policymakers, and academics in anticipating and dealing not only with COVID-related measures but also with similar future contingencies.