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The standard of review to be applied by investment treaty tribunals when reviewing host state conduct is a crucial, but still insufficiently analysed issue. Although tribunals frequently make reference to ‘deference’ as the applicable standard, the criteria they apply to concretize that concept remain uncertain and little predictable. What is more, the conceptual foundations of granting deference to host states are opaque. The present article focuses on these foundations and argues that they are intrinsically connected to how investment treaty arbitration is qualified as either a form of commercial arbitration, a means to settle disputes under public international law, or as an internationalized form of judicial review in public law disputes. Siding with the latter, the present article proposes to conceptualize the standard of review within a separation of powers-framework that fuses domestic and international legal considerations in allocating power between states and arbitral tribunals. Within this framework, considerations originating from both international dispute settlement and comparative public law interact to determine and concretize the standard of review. [ABSTRACT FROM AUTHOR]

The present contribution focuses on the specific question of what may be called scientific fact-finding before international courts and tribunals. At the outset, one may query if there is such a thing as ‘scientific fact-finding’ by international courts and tribunals. Yet, when exploring the practice of international courts and tribunals, it appears that traditional fact-finding processes are being challenged by the ever-growing number of international scientific disputes. Still, international courts and tribunals seem reluctant in certain situations to acknowledge that traditional fact-finding needs to be reshaped and rethought to better address complex disputes characterized by scientific uncertainty. [ABSTRACT FROM AUTHOR]

Countries may adopt conflicting policies, such as food safety regulations, based on conflicting views on the ‘scientific truth’, and trade or investment disputes may arise between countries claiming different ‘scientific truths’. If such a dispute is referred to the World Trade Organization (WTO) or investment arbitration, a panel or arbitral tribunal faces the question of what the ‘scientific truth’ really is. This article reveals that a WTO panel is required to apply a deferential standard of review in the sense that the panel should refrain from making its own conclusion on the ‘scientific truth’ and limit itself to examining the reasonableness of the ‘truth’ claimed by the parties. In investment arbitration, while the deferential standard of review is hardly discussed explicitly, some arbitral tribunals have recognized the need to pay deference to the host state’s decisions regarding the ‘scientific truth’. This article also argues why the deferential standard of review should be applied. [ABSTRACT FROM AUTHOR]

The principle of ‘good faith’ in assessing the initiation of investment treaty claims has manifestly become an important rule of international investment arbitration. From a procedural perspective, ‘good faith’ plays a significant role at the jurisdictional stage of international arbitral proceedings; for questions relating to whether the investment was acquired in ‘good faith’ or whether investor’s initiation of a claim is made in ‘good faith’, in order to avoid an abuse of the arbitral process. Such assessments, procedurally speaking, can be characterized either as a question that goes to the jurisdiction of the arbitral tribunal and thus to the consent to arbitration, or as a question of the admissibility of the claim. This article will examine the position of the principles of ‘good faith’ and ‘abuse of process’ in the assessment by investment tribunals of their jurisdiction and the admissibility of the claim. In doing so, this article will show that the application of these principles in international investment arbitration may play an important role in shielding tribunals from abusive submissions, and thus avoiding abuses of the arbitral procedure and the direct access of foreign investors to international arbitration. [ABSTRACT FROM AUTHOR]

This article discusses different facets of the representation of States in investment arbitration with a focus on ICSID arbitrations. It reviews rules governing the determination of the representatives of a State, practical issues that arise with respect to such determination and the particulars of the ICSID system in appointing representatives of States. It then examines how problems relating to the representation of a State can be dealt with by curing the lack of authority of the person purporting to act on behalf of the State, by ratification of the acts in question, by reliance on the principles of estoppel and good faith and by invocation of the responsibility of the respondent State. [ABSTRACT FROM PUBLISHER]

This article revises and updates a seminal article written by the author in 1998, which was the first attempt to tally how many and what kind of international courts and tribunals existed at that point in time. It contained a chart that placed international courts and tribunals in a larger context, listing them alongside quasi-judicial bodies, implementation-control and other dispute settlement bodies. The present article has three aims. The first is to provide an update, since several new bodies have been created or have become active in the last decade. The second aim is a bit more ambitious. It is time to revise some of the categories and criteria of classification used back in 1998. More than a decade of scholarship in the field by legal scholars and political scientists has made it possible to gain a better understanding of the phenomenon. The abundance of data over a sufficiently long time-span is making it possible to start moving away from a mere ‘folk taxonomy’ towards a more rigorous scientific classification. The hallmark of truly scientific classifications is that classifying is only the final step of a process, and a classification only the means to communicate the end results. Besides making it possible to discover and describe, scientific classifications crucially enable prediction of new entities and categories. Thus, the third aim of this article is to attempt to discern some trends and make some predictions about future developments in this increasingly relevant field of international law and relations. [ABSTRACT FROM PUBLISHER]

The scope of jurisdiction of investment tribunals is a crucial question which often leads to protracted arguments in the course of regularly bifurcated arbitration proceedings. In recent years an increasing number of cases involved narrow dispute settlement clause in BITs which relate to the amount and mode of compensation only in cases of expropriation. Tribunals have differed on the appropriate reading of such clauses, in particular, on whether they should be regarded as excluding the issue whether an expropriation has occurred in the first place or not. In addition, some investment tribunals have relied on the post-Maffezini interpretation of MFN clauses in order to extend their jurisdiction beyond the narrow issue of the amount and mode of compensation. In its first part, this article intends to provide a comprehensive overview of the existing jurisprudence on this matter. Secondly, it analyses the different interpretation techniques resorted to by investment tribunals ultimately demonstrating that neither of them cogently leads to a certain outcome. [ABSTRACT FROM PUBLISHER]

This short article comments on the merits of Professor Chang-Fa Lo’s proposed eight rules for the good faith use of dictionaries in interpreting the World Trade Organization (WTO) covered agreements, which are formulated in reaction to the heavy and steady reliance on dictionaries in WTO dispute settlement. This reply questions the underlying premise for the need of such rules, and cautions against making conclusory statements about the value of using dictionaries and the need to rely on dictionaries in treaty interpretation in isolation from an appreciation of the function of other interpretive elements recognized under customary principles of treaty interpretation. [ABSTRACT FROM PUBLISHER]

If an arbitration system, hypothetically disconnected from states, were to seek to replicate the rule of law beyond the state, in its own transnational order, what would it look like? This question, which seems current given the proliferation of international dispute resolution mechanisms and the continuing rise of international arbitration, formed an implicit theme of the scholarship known as the School of Dijon. Some 30 years ago, the School of Dijon asserted the existence of non-national legal systems revolving around arbitration mechanisms, such as the lex mercatoria. Over the years, their claim developed into the argument that these systems’ own legality forms a basis for claims of autonomy from the state, the presence of law dispensing from the need for control by another legal order. This article argues, first, that this line of arguments is an enthymeme, as the concept of law has been the object of a near wholesale eschewal of definitional attention by the School of Dijon and its kindred theories. The article then maintains that any concept of law used for the aforementioned rhetorical and political purposes ought to include the fundamental principles of the rule of law. It then examines the guise that the rule of law takes when applied to transnational adjudicative normative orders instead of national legal systems. [ABSTRACT FROM PUBLISHER]

In this article the author revisits the vexed question of whether the jurisdiction of an international tribunal, established in accordance with the terms of the basic treaty, can be expanded by reference to the terms of a third treaty through the investor's reliance upon the MFN clause in the basic treaty. The recent line of cases suggesting that no general answer to that question can be provided in view of the nuanced differences in the wording of MFN clauses is considered and criticized as failing to pay adequate attention to the principles of general international law as mandated by Article 31(3)(c) of the Vienna Convention on the Law of Treaties. The application of those principles leads to a negative answer to the question. A claim for MFN treatment secures the treatment represented by the third treaty, it does not effect the automatic incorporation of the terms of the third treaty into the basic treaty before the investor files its claim. Moreover, for the investor to assert a claim for MFN treatment it must first accept the standing offer of international arbitration in accordance with the terms of the basic treaty and at that point an arbitration agreement comes into existence. The terms of that agreement cannot be amended retroactively at the suit of one of the parties. There is a fundamental distinction in general international law between the substantive obligations in a treaty, which are addressed to the state parties, and the provisions that create a jurisdictional mandate for an international tribunal, which are addressed to the tribunal and to the disputing parties, who enter into a relationship of procedural equality once arbitration proceedings have been commenced. This distinction must be respected by investment treaty tribunals in confronting the question of the scope of MFN clauses. [ABSTRACT FROM PUBLISHER]

In this article, the author examines the codification of soft law in arbitration and its consequences. In her analysis, the author discusses the identity of the actors creating such ‘soft codes’, the causes of this codification and the constraining power of the resulting ‘soft normativity’. She further entertains the questions whether soft codes lead to a loss of flexibility and a lack of democratic legitimacy. These themes are illustrated by reference to the International Bar Association (IBA) Rules on Evidence, the IBA Guidelines on Conflicts of Interest, the United Nations Commission on International Trade Law Model Law and the International Chamber of Commerce Arbitration Rules. [ABSTRACT FROM PUBLISHER]

The recent growth of international dispute resolution has led to a reinforcement of the intersection between private and public international law. The International Court of Justice is no stranger to this phenomenon. In reality, several disputes that have been or will be resolved by the International Court of Justice involve individuals or show aspects of private international law. The recently initiated case regarding jurisdiction and enforcement of judgments in civil and commercial matters, opposing Belgium to Switzerland, illustrates this evolution in the nature of the Court’s case load. This article examines, on an empirical basis, what has been so far the World Court’s approach to issues of private international law. It further argues that the Court, as the principal judicial organ of the United Nations, has a role to play in the development of private international law. [ABSTRACT FROM PUBLISHER]

Starting from the experience of the so-called Abyei Arbitration—which concerned Sudan’s highly political and emotive situation of the delimitation of the country’s oil-rich Abyei region—the authors discuss the appropriateness of arbitration to resolve deeply rooted conflicts between political factions and/or states and peoples. After having pondered the opportunities and limitations presented by arbitration for such disputes, and considered the record of implementations of awards, the authors conclude that arbitration can and does serve as a useful dispute resolution method. But a caveat is entered: if the integrity of the arbitral process and the rule of law is to be upheld, the understanding of the role of the arbitral tribunal needs to be given particular attention. [ABSTRACT FROM PUBLISHER]

In the relatively short time since the Kyoto Protocol’s entry into force, many types of disputes have arisen which have resulted in the commencement of a variety of dispute settlement proceedings. In addition to the international adjudicatory bodies charged with deciding disputes arising under the Kyoto regime, domestic courts and tribunals have also found themselves seized of such litigation. The purpose of this article is to survey the complex terrain of climate change litigation, and review the experience that States and non-State entities have had to date with the settlement of disputes arising under, and out of, the Kyoto Protocol. These include inter-State disputes, mixed disputes and private disputes. We have reasonably good knowledge of the international and mixed disputes that have arisen, but in contrast, comparatively little is known about the number of private disputes that have occurred, although the complexity and novelty of transactions under the Kyoto Protocol’s flexibility mechanisms, combined with fact that such transactions are subject to national regulation and international oversight, means that such disputes are likely to arise. In sum, experience to date indicates that the many methods of settling the range of disputes are being used effectively, and it is important for the future of the climate change regime that this multi-layered approach to dispute settlement is maintained. [ABSTRACT FROM PUBLISHER]

In this article, Emmanuel Gaillard discusses the competing mental constructs that allow an understanding of international arbitration as a coherent phenomenon. The author identifies three such mental constructs, or representations, each of which sheds light on the entire law and practice of arbitration, and captures the underlying beliefs of the different schools of thought in the field. The three representations approach the fundamental question of the source of validity and legitimacy of the arbitral process through the prism, respectively, of the legal order of the seat of the arbitration, the different legal orders that are willing to recognize the award resulting from the arbitral process, or a distinct transnational legal order—which the author characterizes as the arbitral legal order. Each of these philosophies of international arbitration lead to distinct branding, imaging, vocabulary, and concrete conduct of all players in the field, be it practitioners, arbitrators or courts. With the study of these three representations and their consequences, as well as their foundation in cognitive sciences, Emmanuel Gaillard delivers one of the first general scientific accounts of international arbitration. [ABSTRACT FROM PUBLISHER]

When should the United Nations, the United States or the European Union intervene in foreign conflicts? Should they intervene at all or would another entity be in a better position to do so? These are some of the underlying questions of this article, in which the authors discuss concrete ways to prevent destructive conflicts, typically international armed conflicts. They put forward a pragmatic framework, called the Prevention Principle, to recognize and prevent destructive conflict at the earliest possible time at the lowest legitimate level. The authors set out the nature of destructive conflicts, explain how early intervention should occur, and propose a model to identify the most appropriate and effective intervener. [ABSTRACT FROM PUBLISHER]