The International Centre for Settlement of Investment Disputes (ICSID) is the premier international investment arbitration facility in the world. In its half-century of existence ICSID has administered more than 525 cases with parties, counsel, arbitrators, and conciliators from virtually every country in the world. Collectively, ICSID jurisprudence has defined international investment law.

This volume celebrates the first 50 years of ICSID by presenting the landmark cases that have been decided under its auspices. These cases have addressed every aspect of investment disputes: jurisdictional thresholds; the substantive obligations found in investment treaties, contracts, and legislation; questions of general international law; and a number of novel procedural issues. Each chapter, written by a knowledgeable expert on the chapter’s particular focus, looks at an international investment law topic through the lens of one or more of these leading cases, analysing what the case held, how it has been applied, and its overall significance to the development of international investment law. These topics include:

• applicable law;

• res judicata in investor-State arbitration;

• notion of investment;

• investor nationality;

• consent to arbitration;

• substantive standards of treatment;

• consequences of corruption in investor-State arbitration;

• State defenses

• counter-claims;

• assessment of damages and cost considerations;

• ICSID Arbitration Rule 41(5) objections;

• mass claims, consolidation and parallel proceedings;

• provisional measures;

• arbitrator challenges;

• transparency and amicus curiae; and

• annulment.

Because the law of international investment continues to grow in importance in an ever more globalizing world, this book is more than a fitting way to mark the past 50 years and to welcome the next 50 years of development. It will prove both educational for practitioners new to the field and informative for seasoned investment lawyers. Moreover, the book itself is a landmark that will be of great value to professionals, business people, scholars and students interested in international investment law.

Editors

Contributors

Preface

PART I General Principles

CHAPTER 1 Applicable Law under the ICSID Convention: The Tortured History of the Interpretation of Article 42 W. Michael Reisman & Mahnoush H. Arsanjani

CHAPTER 2 Rules of Interpretation and Investment Arbitration Laurence Boisson de Chazournes

CHAPTER 3 The Use of the ILC’s Attribution Rules in Investment Arbitration James Crawford & Paul Mertenskötter

CHAPTER 4 On Burden and Standard of Proof Gary B. Born

CHAPTER 5 Res Judicata Charles N. Brower & Paula F. Henin

CHAPTER 6 Precedent & Jurisprudence Constante Abdulqawi Ahmed Yusuf & Guled Yusuf

PART II Jurisdiction

CHAPTER 7 The Tipping Point Jan Paulsson

CHAPTER 8 The Long March towards a Jurisprudence Constante on the Notion of Investment Emmanuel Gaillard & Yas Banifatemi

CHAPTER 9 Legality of Investment Jean Kalicki, Dmitri Evseev & Mallory Silberman

CHAPTER 10 Criteria to Determine Investor Nationality (Juridical Persons) Pierre Tercier & Nhu-Hoang Tran Thang

CHAPTER 11 Criteria to Determine Investor Nationality (Natural Persons) Christoph Schreuer

CHAPTER 12 Continuous Nationality Rule in Investor-State Arbitration Piero Bernardini

CHAPTER 13 Restructuring Investments to Achieve Investment Treaty Protection Stephen Jagusch, Anthony Sinclair & Manthi Wickramasooriya

CHAPTER 14 The Meaning of “Foreign Control” under Article 25(2)(B) of the ICSID Convention V.V. Veeder & Andrew Legg

CHAPTER 15 Indirect Shareholder Claims Gabriel Bottini

CHAPTER 16 Preconditions to Arbitration and Consent of States to ICSID Jurisdiction Pierre-Marie Dupuy

CHAPTER 17 Waiver of Local Remedies and Limitation Periods Andrea K. Bjorklund

CHAPTER 18 Maffezini v. Plama: Reflections on the Jurisprudential Schism in the Application of Most-Favored-Nation Clauses to Matters of Dispute Settlement Stephan W. Schill

PART III Standards of Protection

CHAPTER 19 The Minimum Standard of Treatment, Glamis Gold, and Neer’s Enduring Influence Jeremy K. Sharpe

CHAPTER 20 Fair and Equitable Treatment: Legitimate Expectations and Transparency Lucy Reed & Simon Consedine

CHAPTER 21 Fair and Equitable Treatment: Denial of Justice Margrete Stevens & Doak Bishop

CHAPTER 22 Arbitrary and Discriminatory Treatment Vaughan Lowe

CHAPTER 23 The Evolution of the Full Protection and Security Standard Stanimir A. Alexandrov

CHAPTER 24 Property Rights as the Object of an Expropriation Zachary Douglas

CHAPTER 25 Indirect Expropriation L. Yves Fortier & Stephen L. Drymer

CHAPTER 26 Effective Means to Assert Claims and Enforce Rights Oscar M. Garibaldi

CHAPTER 27 The Umbrella Clause Andrés Rigo Sureda

CHAPTER 28 National Treatment August Reinisch

CHAPTER 29 Most-Favored-Nation Treatment: Substantive Protection David D. Caron & Esmé Shirlow

CHAPTER 30 Performance Requirements Barton Legum & Ioana Petculescu

PART IV Exceptions, Defenses and Counterclaims

CHAPTER 31 The Consequences of Corruption in Investor-State Arbitration Carolyn B. Lamm & Andrea J. Menaker

CHAPTER 32 Police Powers or the State’s Right to Regulate Alain Pellet

CHAPTER 33 Denial of Benefits after Plama v. Bulgaria Mark Feldman

CHAPTER 34 Defenses Based on Necessity under Customary International Law and on Emergency