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Prabhash Ranjan's article in the Manchester Journal of International Economic Law examines India's engagement with international investment law and investor-state dispute settlement (ISDS), analyzing cases through the lens of competing narratives. The text emphasizes the complexities of ISDS cases, highlighting the need for transparency and engagement in reform processes. By discussing specific disputes like Philip Morris v. Uruguay and Bernhard van Pezold v. Zimbabwe, the author offers valuable insights into the dynamics between foreign investors and host states, contributing to a deeper understanding of international legal issues. [Extracted from the article]

Sovereignty is an age-old concept that continues to occupy centerstage in international law discourse. This article attempts to look at India's tryst with international investment law through the prism of sovereignty, positing it as the right of the state to regulate it in public interest. It divides India's experience with international investment law in three phases – the periods of preserving (1947–1990), delegating (1991–2010), and reclaiming (2011 onward) sovereignty. The article shows how India's rendezvous with international investment law moved from zealously guarding India's sovereign space by not accepting international law on foreign investment in the first four decades of India's independence to delegating sovereignty to international law on foreign investment from 1991 onward. However, the period from 2011 onward saw India reclaiming some of its ceded sovereignty by significantly altering its terms of engagement with international investment law. [ABSTRACT FROM AUTHOR]

A state is entitled to be bound by investment agreements, including expropriating alien property on its territory. In international law, both represent the state's sovereign principle within the boundaries of territorial integrity. Expropriation and the right to regulate are usually included in investment agreements as part of the substantive rules. This study uses a normative juridical approach. This approach is carried out by examining the library materials, which are secondary data; especially the principles and norms of law. While the aim of this research is to examine the legal aspects of several key concepts within the international investment law regime--the right to regulate and expropriation, both in terms of its regulation and implementation, in order to find best practices. Expropriation and the right to regulate are essentially like two sides of the same coin. This is because lawful expropriation implies state obligations (compensation), whereas unlawful expropriation implies state responsibilities (restitution or reparations). Meanwhile, the right to regulate (police powers), which is based on the concept of state sovereignty, does not. Lawful expropriation is defined as the state measures carried out with the due process of law, in a non-discriminatory manner, for the purpose of the public interest and is accompanied by the payment of compensation. In terms of expropriation, the right to regulate can be regarded as a form of lawful expropriation that does not necessitate compensation. [ABSTRACT FROM AUTHOR]

In the context of ongoing debates concerning the reform of the investor-State dispute settlement (ISDS) mechanism, this article critiques the widely-accepted approach that seeks to fit international human rights law (IHRL) into the existing structure of ISDS and argues that IHRL should at least be treated as 'primus inter pares' vis-à-vis international investment law. Testing ISDS on the touchstone of the human rights to equality, non-discrimination, and an effective remedy, the authors demonstrate that ISDS is incompatible with IHRL. Considering various structural and systemic problems, abolishing ISDS is perhaps the only normatively sound solution to address this incompatibility with IHRL. However, as this may not be politically feasible in the near future, this article articulates eight principles for a human-rights compatible international dispute settlement mechanism. We argue that these principles should inform the current efforts to reform the ISDS mechanism to avoid the risk of making only cosmetic changes. [ABSTRACT FROM AUTHOR]

This article argues that legal certainty provides the most compelling justification for recognizing legitimate expectations in international investment law, and that the prohibition on arbitrary conduct provides the most persuasive reason for their protection. After considering other rationales for recognizing legitimate expectations, the article analyses the types of government action typically arising in investment cases through the lens of legal certainty, arguing that the strength of the claim for recognizing legitimate expectations depends on the government conduct at issue, with interference with legal rights or formal decisions generating the strongest claim for recognition, and changes to laws generating the weakest claim. The article discusses the prohibition on arbitrary conduct as the relevant touchstone for protecting legitimate expectations, demonstrates that this interpretation accords with recent treaty innovations, and explains how the expected degree of legal certainty correlates with the risk of arbitrariness in relation to different types of government conduct. [ABSTRACT FROM AUTHOR]

The ambiguity of key terms in investment treaties, such as 'investment', 'fair and equitable treatment' and 'fair market value', has been subject to extensive analysis. Less attention has been paid to the silence of investment treaties on numerous issues that routinely arise in practice. This article argues that treaty silence has played a critical role in the development of international investment law. It shows that arbitrators frequently adopt a creative approach to silence resulting in expansive interpretations, and argues that this approach stands in tension with several fundamental principles of public international law. The article concludes by highlighting considerations drawn from its analysis for arbitrators, treaty drafters and the international legal order. [ABSTRACT FROM AUTHOR]

Based on Jean d'Aspremont's proposals according to which international law is a belief system, this research goes beyond to affirm that such beliefs are not unbiased, but they rather have a distinctly western origin, foundation and development. They are subsequently implanted in the Third World through law universalization campaigns. Departing from the contextualization of such international law implantation in Latin-America and followed by the depicting of some fundamental beliefs transmitted in the fields of international environmental law and international investment law in the region, this research concludes that both the universalization campaigns of those beliefs as well as their raising resistance, end up reinforcing the very beliefs. The foregoing only consolidates that a regional and private law continues to be considered as international and public. It also reiterates the need to promote an inclusive international law whose beliefs have a diverse origin, including that coming from the Third World. [ABSTRACT FROM AUTHOR]

Domestic screening of foreign investment, often on national security grounds, has intensified in recent years. More countries are introducing such regimes, while others expand their scope or allow retrospective screening. These developments increase the potential for investor–State claims under international investment agreements, even sometimes regarding investments that are not yet established. Host States need to be aware of the potential for adverse screening decisions, the imposition of conditions, or due process shortcomings to conflict with investment obligations, such as fair and equitable treatment or most-favoured nation treatment. Although tools exist in some treaties to exclude or exempt investment screening, these may not prevent a successful investment claim. For example, listing a screening regime as a non-conforming measure may not cover all future amendments, and general and security exceptions are subject to considerable uncertainty. Host States need to ensure compliance with international investment law in creating and developing screening regimes. [ABSTRACT FROM AUTHOR]

What role should concerns about distributive justice play in international investment law? This paper argues that answers to fundamental and contestable questions of social and global distributive justice are a necessary, if implicit, premise of international investment law. In particular, they shape our views on the purpose of investment law, and in turn determine the scope of authority that investment law can claim, and that states should accord it. The implausibility of achieving international consensus on these questions constitutes a substantial objection to the harmonization of investment law or the consistent operation of a multilateral investment court. [ABSTRACT FROM AUTHOR]

Diversity in investment treaty arbitration (ITA), as in many other areas of law and beyond, presents an ongoing struggle. Commentators generally agree that a lack of diversity in the pool of arbitrators undermines the regime's legitimacy. But views are more tentative or even skeptical about whether increasing diversity would add substantive value in the sense of improving the quality of decision making. This latter possibility runs up against a strong tendency in the literature to see ITA through the lens of formalism. From this vantage point, what matters to decision-making quality is that investment treaty arbitrators have the relevant expertise and apply the rules impartially. Adding diverse voices is of secondary importance because any impact on substance is seen as speculative. This Article offers a comprehensive examination of the substantive value of diversity in ITA as a rebuttal to that skepticism. It begins by drawing on the extensive interdisciplinary literature studying how diversity in backgrounds and values shapes judicial decision making. Examining the interdisciplinary research and distinctive features of ITA suggests that diversity's substantive value not only applies to this context, but does so with heightened force. The Article also explores how a lack of diversity has affected ITA jurisprudence in concrete ways. In particular, the overrepresentation of arbitrators from developed countries and private practice backgrounds has likely contributed to the imbalance that critics have long identified, but that formalist defenders of the status quo, focused on impartiality, have ignored or minimized. Finally, the Article considers several practical implications that follow from recognizing diversity's substantive value: how states should revise their appointment strategy, when arbitrators should be willing to write separately, and to what extent previously settled jurisprudence should be reexamined. [ABSTRACT FROM AUTHOR]

The COVID-19 pandemic is affecting every aspect of our daily life; what's more, it is affecting and will affect for some years from now the global economy. The present working paper offers a reflection on how State's restrictive trade measures are affecting foreign investors' rights. The study investigates how the exceptional circumstances of the COVID-19 pandemic can justify State's measures affecting foreign investors' rights and whether they can be legally justified under the customary international rule of the necessity defense. The first part of the paper will analyze the requirements of the states of necessity, as codified in article 25 of the ILC Draft Article. The second part of the paper will apply the requirements of the customary law rule of the necessity defense to the COVID-19 pandemic, taken into account national measures that have been taken by States during this period; it will be questioned whether the global and exceptional circumstances of the spread of COVID-19 will influence (and maybe change) the way we interpret and apply this customary rule. [ABSTRACT FROM AUTHOR]

Recent trends in reforms by African states in the field of International Investment Law C'IIL") have been dubbed as the Africanization of IIL. These important debates regarding reform of IIL in Africa foreground innovative aspects of International Investment Agreements ("IIA") in contrast to the traditional IIL regime. The debates also remind us of the relative lack of African voices in the globa.l IIL reform agenda. There is, however, little research that critically analyzes the Africanization of IIL thesis. This article undertakes this analysis. Drawing on TWAIL, this article characterizes Africanization of IIL into "moderate" and "radical" reforms. The article analyzes the normative features of Africanization of IIL. In this regard, it enriches existing substantive analysis, and advances the debates by interrogating the contours and blind spots of Africanization in IIL. It argues that the Africanization thesis. being so far limited to the IIAs between African states, is a "moderate" response from below to the systemic inequities of the IIL regime. Moderate Africanization of IIL - a modest and incremental approach to the reform of IIL - engenders challenges for African states as they remain nestled in the neoliberal paradigm. To address this deficit and expand the geographies of African centered IIAs to reform and remake IIL, this article inakes the case for a cascading of the Africanization thesis in more radical normative form based on a constellation of strategic moderate changes. [ABSTRACT FROM AUTHOR]

The margin of appreciation is an ill-defined legal concept that some international tribunals have referred to when affording a measure of deference to actions taken by national authorities. As most international tribunals have concluded, however, the margin of appreciation is neither a rule of international law nor a justifiable exercise of adjudicative authority in the vast majority of cases. International law and international adjudication are better served by a more analytically rigorous approach that eschews references to a margin of appreciation; tribunals should be guided by the text, object and purposes of the relevant treaty provisions and applicable rules of international law. Consistent with this analysis, international tribunals have either refused to apply a margin of appreciation or only paid lip service to the concept, while proceeding to conduct an objective review of the state's compliance with its international law obligations. The Article first considers the origins, early applications and subsequent rejection of the margin of appreciation doctrine by international courts and tribunals, including the International Court of Justice and its predecessor, the Permanent Court of International Justice. Early applications of a margin of appreciation were rare and generally limited to exceptional circumstances where a measure of deference to decisions of national authorities, international organizations or tribunals was mandated by treaty language, object and purpose. Part II then goes on to consider the only context in which the margin has been applied with any frequency--before the European Commission on Human Rights and the European Court of Human Rights. While the application of the margin of appreciation in that setting is subject to significant criticism, its application in the European human rights context is arguably justified by the text, object and purposes of the European Convention on Human Rights and the unique historical, legal and cultural setting in which the Strasbourg bodies operate. Despite the doctrine's rejection elsewhere, a handful of investment tribunals have transposed the margin of appreciation from the European human rights context into international investment law. Part III argues that, in these few instances, the margin has been applied by tribunals without meaningful explanation of the doctrine's relevance and without regard to the historical development--and limitations--of the doctrine. The Article concludes by arguing, in Parts IV and V, that there is no generally applicable margin of appreciation in international investment law or international law more generally. The Article argues instead for an approach that takes into account the text, object and purposes of investment treaties and gives effect to the rules of international investment law and international law more generally. [ABSTRACT FROM AUTHOR]

International investment law and domestic law governing foreign investment strongly influence one another and indeed operate in a relationship of co-dependency or interoperability. Yet the flows between the two bodies of law, and their respective modalities of influence, remain generally unexplored in international legal theory. To shed light on this important phenomenon, this article traces the ways in which international investment law can affect the content of domestic investment law, using theories of international law compliance as a lens for such an understanding. It then proposes a set of pathways by which domestic law can influence the content of international investment rules. International law thus depends upon national law not only for its implementation but for its very content. Indeed, the regime of investment law will not tolerate significant discrepancies between the two. An appreciation of this dynamic is critical to evaluating the prospects of improvements to international investment law and can inform the ongoing discussions among stakeholders to this end. [ABSTRACT FROM AUTHOR]

This article employs a mixed methodological approach to evaluate non-disputing party (NDP) participation by means of amici curiae submissions in investment disputes settled by the International Centre for the Settlement of Investment Disputes (ICSID). The work presents and analyzes statistics on NDP participation in ICSID cases in order to investigate whether amicus submissions are a suitable vehicle for the incorporation of the views of NDPs, and whether they contribute to the development of international investment law and policy. The article argues that amicus briefs are a welcome addition to the ICSID arbitral process in theory, having contributed to the enhancement of the rule of law in investment arbitration through increased transparency. However, the level of NDP participation that amicus briefs provide within ICSID is minimal, and the extent to which they may affect the final outcome of the case is very much at the discretion of the individual tribunal. In light of this, and recognizing previous research that has noted the potential benefits of amici curiae submissions in dispute settlement processes (investment and otherwise), this article will go on to suggest reforms to enhance the participation of NDPs in ICSID arbitration. This will, in turn: contribute to the development of international investment law and policy; increase its integration with other branches of public international law (namely human rights); and enhance transparency and respect for the rule of law. [ABSTRACT FROM AUTHOR]

The author explores the stakes for global justice of the rules of international investment law (IIL) through the identification of the key issues of international political morality and the questions that need to be answered for a moral evaluation of the law. He asserts the little philosophical critique with which to engage with the issue since IIL is mostly off the radar screen within international political morality. The structural critique of the IIL rules is also explored.

This Article explores the overlapping conceptions of "international legal personhood" in international criminal law and international investment law in light of the December 2016 International Ccntre for Settlement of Investment Disputes Award of Urbaser v. Argentina. It is an effort to parse out and test potential standards for investor-to-State liability for corporate participation in mass atrocities and human rights violations, particularly in instances of armed conflict. In exploring the question of when a corporation can be held financially liable for human rights violations under international investment law, this Article suggests that, while the legal status of direct corporate subjectivity remains opaque, Urbaser invites application of international criminal law liability doctrines as "boundary crossing" tools that arbitrators can use to further define the contours of corporate subjectivity to international law. [ABSTRACT FROM AUTHOR]

The article examines the legacy of the Lisbon Treaty which has changed international investment law and policy in the European Union. Topics covered include the current state of Europe's international investment policy, potential tensions that may arise after the exclusive competence to regulate investment, and the future of foreign direct investment in a central investment policy.

This article examines the nature of legitimate expectations in international investment law. The author considers international investment case law to suggest that legitimate expectations consist of four basic elements: specific representation or promise made by the host State, legitimacy, reasonability, and objectivity of expectations, reliance (trust) the investor had in the representation made by the host State and the substantive benefit received by the investor by way of representation or promise made by the host State. After briefly explaining the basics of the protection of legitimate expectations, the article addresses each element, including the criteria of effective representations or promise made by the host State that is capable of creating legitimate expectations. It also shows that the focus should be placed on the reliance element. [ABSTRACT FROM AUTHOR]

The judgment of the Court of Justice in the Achmea case evoked significant repercussions regarding the application and operation of the bilateral investment treaties (BITs) concluded between EU Member States. As a result of this decision, EU Member States have decided to terminate almost 190 intra-EU BITs. Nevertheless, full implementation of the Achmea judgment remains a complex issue, entangled in political and legal controversies concerning intra-EU BITs which have been present for more than a decade. On a more general level, the implementation process is simultaneously entwined in two other significant debates: the specifics of the rights of investors, and the relationship between EU law and international law. [ABSTRACT FROM AUTHOR]

Finding an appropriate equilibrium between investment protection and states' regulatory autonomy has long been a vexing problem in international investment law. In light of genuine problems of uncertainty in international investment arbitration and growing challenges to the legitimacy of international investment agreements (IIAs), stakeholders have a mutual interest in ensuring that IIAs not only fulfil their purpose of protecting foreign investors to the greatest extent possible, but also better clarify and secure states' right to regulate for legitimate objectives, even where this may inhibit investment protection. Appropriately designed exception clauses allow these aims to be achieved simultaneously. This paper develops a model exception clause under which states may define their policy objectives and the extent to which they desire to pursue them, and which precludes tribunals from subjectively assessing these objectives' importance during their analysis. The clause permits states to contradict their substantive IIA obligations while pursuing a particular objective to the desired extent, provided that they act in the manner which is least inconsistent with these obligations. A 'chapeau' requires that states regulate with no motive of restricting foreign investment as a goal in itself. The clause is of general application and subject to full tribunal review. [ABSTRACT FROM AUTHOR]

This article analyzes under the law of treaties and EU law the role and interactions in treaty and investment arbitration of four important questions: a State's capacity to conclude a treaty (I), the EU's competence to conclude a treaty, including on FDI, and to invalidate or terminate treaties or BITs concluded by Member States (II), a State's consent to be bound by a treaty (III) and consent to arbitration under a treaty (IV). The analysis extends to the CJEU's decisions on EUSFTA and Achmea and the contributions of the TTIP, the CETA and the EUSFTA. [ABSTRACT FROM AUTHOR]

The notion of transparency manifests in three contexts in international investment law. It manifests first at the point of norm creation, regulating the public availability of information about the norms included in investment treaties and the capacity for interested stakeholders to view or participate in the creation of those norms. Transparency secondly features in the content of substantive investment obligations. In this incarnation, transparency norms empower foreign investors to bring proceedings against States for failures of transparency in State dealings with investors. Finally, transparency features as a procedural requirement for investment arbitration proceedings. Here, transparency refers to the extent to which individual dispute settlement proceedings are publicly accessible or documents produced in those proceedings made publicly available. The precise features of transparency in each of these contexts differ, as do the stakeholders which stand to benefit from transparency. Studying these three distinct manifestations of transparency offers insights into the development of international investment law and the sources, stakeholders and structures which shape it. This article considers each manifestation of transparency in turn (Section I), before considering what they reveal about the nature and structure of international investment law and arbitration (Section II). [ABSTRACT FROM AUTHOR]

Investment treaty arbitration tribunals rely on arbitral precedent as a principal source for rules of international law. Orthodox international legal doctrine, however, denies that the rulings of earlier tribunals may serve as a source of that law. This article examines the implications of this apparent contradiction. It concludes that investment treaty tribunals rely on precedents principally to legitimize their decisions, which may otherwise appear to rest on the arbitrators subjective interpretations of the highly indeterminate terms of investment treaties. More significant reasons for tribunal reliance on arbitral precedent may be found in the nature of international law itself and its relationship to international institutions, in particular: the lack of effective international legislative and judicial institutions with authority to promulgate primary rules of international law; the positivist premises of orthodox international legal doctrine; and the inductive reasoning used in the identification and application of rules of customary international law. [ABSTRACT FROM AUTHOR]

The international law of foreign investments is in a process of permanent emerging, whose structure appears as a complex and unitary multitude of interactions between the branches of law and its evolution is inspired by sociology, philosophy, politics and economy. These principles are guiding precepts and guidance aimed at drawing up and application of legal norms on international investments and can be formulated in the text of the Treaties and other regulations in this field. These are the support of the stability of the international law of investments, correcting the discrepancies, excesses and anomalies that are naturally identified at a certain moment in the interpretation and application of this new field of law. The existence of the general principles has a prominent role in the transition periods of law and in the hierarchy, the harmonization and the compatibility of different legal systems. [ABSTRACT FROM AUTHOR]

The legitimacy of international investment law is fiercely contested. Chiefly, scholars argue that investor-state dispute settlement empowers corporations from rich nations over governments of poor ones. Some also assert that poor nations facing investment claims have limited ability to improve their standing in this setting of adjudication. Based on a first-of-its-kind experiment conducted on 257 international arbitrators, this article argues that one avenue to improve standing is for developing countries to exploit their 'underdog' status. We presented arbitrators with a vignette describing an investor-state dispute and randomly assigned different features to test their effect. Our results suggest arbitrators are prone to a particular type of bias - surveyed professionals were more likely to grant poor respondent states reimbursement of their legal costs compared to wealthy states when the respondent won the dispute. Based on this 'David effect', we argue for re-conceptualizing investor-state arbitration as a tool for partially mitigating power imbalances. [ABSTRACT FROM AUTHOR]

Foreign investors seeking to recover heightened damages, especially in the context of expropriation, invariably invoke Chorzo'w Factory to support their argument that compensation must be calculated not at the time of a wrongful act, but at the time of the award to reflect the possible rise of the value of the affected property. This article analyzes the historical context and underlying reasoning of the Chorzo'w Factory's standard of damages to demonstrate that this standard cannot be automatically applied in investment arbitration for several reasons. First, Chorzo'w Factory stated that the rights and interests of an individual and those of a State are always in a different plane, and thus the damage suffered by an individual is never identical in kind compared to the damage suffered by a State from the same wrongful act. This suggests that the scope of recoverable damages depends on whether an alleged breach concerns the injury to a sovereign State or the injury to an investor invoking the international responsibility of a State on its own account. Second, Chorzo'w Factory's pronouncement about the calculation of damages at the time of indemnification was limited to the protection of complex international security and economic interests safeguarded by the Geneva Convention on Upper Silesia after the contested partition of Upper Silesia; those interests were of a different order of magnitude than the interests underlying investment protection treaties. Finally, contrary to common misconceptions, Chorzo'w Factory was not a paradigm case of "unlawful" expropriation under customary international law or an investment protection treaty. The case involved the seizure of property that could not have been taken even against compensation. It is based on the distinction between different levels of illegality that Chorzo'w Factory also distinguished between different measures of damages, limiting its heightened standard of compensation in that case to the serious breach of the international obligations of essential importance for the maintenance of international peace and security. [ABSTRACT FROM AUTHOR]

This article considers how the UNCITRAL Rules on Transparency and UN Convention on Transparency alter the structure of international investment arbitration, as well as its relationship with other regimes of international law. The article provides an overview of how transparency was regulated prior to the advent of the Rules and Convention, their structure and coverage, and their impact thus far (Section II). The article then considers their implications. Section III illustrates how the Rules and Convention effect a fragmentation of international arbitration through their distinction between investment treaty arbitration and other forms of arbitration. That Section furthermore highlights how the Rules and Convention reflect, and may prompt, a growing convergence of investment treaty arbitration and how they promote its linkage to other regimes of public international law. Section IV considers how the Rules and Convention modify the underlying structure of investment treaty arbitration, controlling disputing party and arbitral discretion to shift the structure of arbitration from a private form of dispute settlement to a more public form that takes into account external interests and participants. Section V examines the motivations prompting the development of the Rules and Convention, highlighting their development as a source of legitimacy and acceptance of the investment treaty arbitration regime. That Section highlights the promise of the Rules and Convention and their potential pitfalls, before canvassing a number of topics for future empirical study. [ABSTRACT FROM AUTHOR]

The United States has signed 47 bilateral investment treaties (BITs) over the last three decades. The standard explanation for why the United States’ government signed those BITs is that it was motivated by a desire to promote the development of international investment law and to protect American capital invested abroad. An alternative explanation, however, is that the United States has largely used BITs as a foreign policy tool to improve relationships with strategically important countries in the developing world. This project uses qualitative and quantitative evidence to assess whether the United States was motivated to sign BITs based on investment considerations or political considerations. The qualitative evidence suggests that US executive branch officials viewed BITs as a potential way to cement and strengthen relationships with politically important countries. The quantitative evidence suggests that proxies for investment considerations – like trade and FDI flows – are weak predictors of US BIT formation, but that political considerations – like military aid and whether a country was formerly a communist state – are consistently statistically significant predictors. Taken together, the evidence supports the argument that political considerations are better predictors of the BITs the United States signed than investment considerations. [ABSTRACT FROM PUBLISHER]

The International Investment Regime (IIR) materialises in international arbitral tribunals that protect the rights of foreign investors. Could these tribunals hamper the implementation of exceptional measures agreed to end armed conflicts? The principle of proportionality, usually employed to balance competing demands such as the interests of international investors and the right of states to self-determination, could fall short when it comes to the concept of a nation and a society's right to peace. Focusing on the Colombian peace process, this article argues that the agreement on land redistribution, a cornerstone of the peace agreements, benefits the whole society, including foreign investors. However, the colonialist nature of the IIR could lead foreign investors, who see their investments and expected profits affected, to demand compensation for governmental land acquisition. The Colombian case suggests powerful lessons for the willingness of transitional states to defend their people's right to peace in international tribunals. [ABSTRACT FROM AUTHOR]

The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation. [ABSTRACT FROM AUTHOR]

The systemic role of circumstances precluding wrongfulness, both in international investment law and in international law more generally, is neither central nor, at least in the form in which they are currently expressed, likely to be of great practical importance in most cases. But circumstances precluding wrongfulness have played an important role in some international investment disputes, and provide an excellent illustration for how blackletter international law works, particularly in relation to countermeasures and necessity. If these decisions are anything to go by, future developments will be of great interest to both practitioners and academic commentators, and directly touch upon the systemic pulse of international investment law and law of State responsibility. [ABSTRACT FROM AUTHOR]

Recent developments in relation to the termination of international investment agreements (IIAs) raise a number of issues at the intersection of treaty law and investment law. This article examines some of the key aspects of treaty law as they relate to the termination of IIAs. The article addresses recent state practice in relation to the denunciation of or withdrawal from multi-party treaties related to investment including the ICSID Convention and the Energy Charter Treaty, leading to complicated questions about the effective date of termination and the implications for new or ongoing investment claims. The article also examines the unilateral termination of bilateral treaties, for example by South Africa and Indonesia, and the mutual termination of such treaties, for example within the European Union and as a result of conclusion of newer treaties such as the Trans-Pacific Partnership. In this regard, the article considers the consequences of sunset clauses, introduced because of the longterm nature of foreign investments, which can make it harder for States to extract themselves from investment obligations. These developments highlight the importance of clarity in drafting termination clauses and agreeing to terminate an IIA, so as to avoid disputes about the impact of a survival clause or its interaction with general treaty law. [ABSTRACT FROM AUTHOR]

The proliferation of international investment agreements and of arbitral jurisdiction under those agreements increases the likelihood that normative conflicts may arise as between various treaties that protect the same investor from the action of the same State-party to the relevant treaty. While Article 30 of the 1969 Vienna Convention is a provision of a key importance here, the arbitral practice has not so far directly resolved the issue of normative conflict between various investment treaties. While the jurisdiction of investment arbitration tribunals is generally not restricted by the litis pendens rule, the same treaty may well be raised and have to be dealt with in different arbitration proceedings. This contribution engages the range of issues arising out of the possibility of such normative conflicts, such as the criteria for identifying whether treaties are in conflict, the range of normative conflicts and the availability of arbitral jurisdiction to resolve them. [ABSTRACT FROM AUTHOR]

''Fair and equitable treatment'' and ''the minimum standard of treatment'', as quintessential ''evaluation rules'', require those who apply such rules to take account of changing cultural values. These values develop in a dynamic and increasingly democratic customary international law process, which now incorporates, in addition to States, many non-State actors. Once States insert an evaluation rule in a treaty with a jurisdictional clause, they must share custody of its evolution with arbitral tribunals, whose mandate includes customary international law. State efforts to recapture control of the evolving content of ''fair and equitable treatment'' and ''the minimum standard of treatment'' have proved ineffective and will probably continue so. [ABSTRACT FROM AUTHOR]

This article makes the claim that the present efforts to reform the international investment regime (IIR) will not save this field from the existing criticisms. Given the plural values at issue, it is unlikely that states - let alone local populations - will ever reach a consensus on the substantive questions surrounding foreign investment. Historically, the main characteristic of foreign investment governance has been the lack of multilateral consensus. This field remained dominated by diplomacy and customary international law until bilateral treaties and investment arbitration became the leading mechanism to resolve investment disputes in the 1990s. This highly legalized regime, however, has been subject to criticisms from developing and increasingly from developed countries. Most reform proposals fail to go beyond alternatives that have been unsuccessful in the past, such as a multilateral investment agreement (MIA) or state-to-state arbitration. This article takes a different approach to foreign investment governance, starting from its political economy. It claims that the IIR does not depoliticize foreign investment relations but rather promotes the politics of foreign investors' property rights protection. Relying on property theory and pluralism as heuristic tools, this article analyses the resistance to investment arbitration, the obstacles to multilateral cooperation, and the possibility of an overlapping consensus on the institutions for foreign investment governance. [ABSTRACT FROM AUTHOR]

Foreign investment law (FIL) is unlike any other sub-field of international law. Its unique features continue to puzzle observers. Two general themes recur. First, why do countries agree to limit so substantially their sovereign powers over foreign investors and, most strikingly, to open themselves up to direct claims in investor-state arbitration? Secondly, how can FIL survive given its composition of thousands of treaties, custom, domestic laws, contracts and (often contradictory) arbitration awards, without a controlling multilateral treaty or institution, or appellate court? This article draws on complexity theory and the notion of complex adaptive systems to offer an alternative, richer account of FIL. Approaching FIL as a complex adaptive system (CAS) allows us better to understand how FIL (i) emerged out of small, incremental and often accidental steps, (ii) operates as a largely self-organizing, decentralized system made up of many interacting components and (iii) remains stable, but also changes and evolves through a series of local, sub-optimal quasi-equilibria, highly sensitive to initial conditions that can be disturbed by both seismic events and minor mutations. The insights thus provided should also help participants in FIL to develop interventions or reforms that are more likely to be effective, in casu relatively small tweaks or adaptations which may have major repercussions. Seeking the edge of chaos, therefore, is not seeking disorder or randomness but the right balance between order and flexibility. This perspective should give pause to lawyers, generally critical of fragmentation and decentralization, and intuitively seeking order and central authority. Through the lens of complexity theory, FIL, with all its imperfections, and contrary to conventional wisdom, may not be one of law's most pathological sub-fields in need of top-to-bottom reform. Though far from optimal, it may be an organizational life form more similar to species that have survived evolutionary biology and, in this sense, a model that other legal regimes may want to learn from and emulate. [ABSTRACT FROM AUTHOR]

The authors offer opinions on international law and foreign investments. It is argued, citing their own research in support, that it is undetermined if an increase in arbitration cases in international law related to foreign investment is a result of the worldwide recession following the Global Financial Crisis.

The multilateralization of international investment law has witnessed repeated disappointments over the past six decades. Current negotiations regarding the Investment Chapter within the Trans-Pacific Partnership Agreement may bring about a new promise for this process. It is necessary for the TPP negotiating parties to have a proper understanding of this recent history. Circumstances under which the TPP negotiations are conducted are quite different from those of the past. Thus, it can be assumed that TPP negotiations will be concluded successfully and may have profound implications on the multilateralization of international investment law. Since TPP negotiations have multilateral consequences, several new initiatives have been proposed amongst the TPP negotiating parties, which may help alleviate the 'legitimacy crisis' of the past two decades. These initiatives include a new principle of Special and Differential treatment, operative provisions on investment promotion, a Side Agreement on code of conduct of transnational corporations, and an appellate mechanism for reviewing arbitral awards. [ABSTRACT FROM AUTHOR]

The article offers information the history, characteristics and consistency level of investment treaty arbitration by investment tribunals under international law. It discusses several awards and decisions related to investment arbitration by the International Centre for Settlement of Investment Disputes (ICSID) for protection of the international investment law.

The article discusses public international law and the troubles associated with the comprehension of investment treaty systems as of January 2013, focusing on the legal protections afforded to investors in regards to arbitral claims, investor-state contracts, and international commercial arbitration proceedings. An interpretation of Article XI of the U.S.-Argentina investment treaty is provided in relation to the protection of security interests and the maintenance of public order. The European Convention on Human Rights is mentioned, as well as internationalized judicial review and party autonomy.

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This article analyzes how the international law on foreign investment can bring radical changes in the positivist paradigm, which has prevailed so far regarding the formation of customary international law. These changes are of particular importance not only from a theoretical perspective, but they also become more relevant when the international law on foreign investment is considered as a structure of global governance which has deep repercussions over the administrative practices of states and the way they choose how to regulate their relations with their citizens. Therefore the article aims to make an assessment on the legitimacy problems inherent in the paradigm's change of the formation of customary international law and the correlative legitimacy problems that arise on the domestic administrative practices sphere. [ABSTRACT FROM AUTHOR]

According to the World Health Organization, tobacco consumption causes the death of five million people each year. Countries have increasingly adopted regulations aimed at diffusing public awareness and have massively adhered to the World Health Organization Framework Convention on Tobacco Control, which has established a cognitive and normative consensus for promoting global public health through tobacco control. Despite these successful approaches, the tobacco business has been facilitated by foreign investment protection, which has increased competition and lowered tobacco prices. By extensively protecting investor's rights to promote foreign direct investment and to foster economic development, international investment governance risks undermining the fundamental goals of tobacco control. This article investigates the relationship between international investment law and tobacco regulation. As investment agreements broadly define the notion of investment, tension exists when a State adopts tobacco control measures interfering with foreign investments, as regulation may be considered tantamount to expropriation under investment rules. In addition, investment treaties provide foreign investors with direct access to investment arbitration. Thus, foreign investors can directly challenge national measures aimed at protecting public health and can seek compensation for the impact on their business of such regulation. As a result, the mere threat of an investor-state dispute may have a chilling effect on policy-makers. Several questions arise in this context. Are investment treaties compatible with states ' obligations to protect public health? Is investor-state arbitration a suitable forum to protect public interests? Are there any limits to the power of states to enact public health regulations? In the light of parallel developments before other international law fora, this article critically assesses the clash between public health law and international investment law before investment treaty tribunals and offers a systematic and updated analysis of the recent case law. The article then concludes with some policy options that may help policy makers and adjudicators reconcile the different interests at stake. [ABSTRACT FROM AUTHOR]

Copyright of Review of International Law & Politics / Uluslararasi Hukuk ve Politika is the property of International Strategic Research Organization and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)