Substantive Law in Investment Treaty Arbitration, Second Edition
International Arbitration Law Library Series Volume 21
Substantive Law in Investment Treaty Arbitration is a clear analysis of previously unexplored aspects of investment arbitration. This second edition of what has rapidly become the pre-eminent work on the role of municipal law in investment treaty arbitration is justified not only by the accelerating appearance of investment treaty awards, but also by the continuing, serious problems in the application of international law by investment treaty arbitral tribunals. The book considers key matters of substantive law in which a renvoi to municipal law must be conducted if an investment treaty tribunal is to reach sound results under international law.
What’s in this book:
The author has maintained the overall structure of the first edition and added a new chapter on Article 42 of the International Centre for Settlement of Investment Disputes Convention. The book focuses on the role of municipal law in providing the substance for concepts such as contracts, property rights, and shareholders’ rights, which are relevant in the international investment treaty context but are not regulated under international law. Among the complex questions considered are the following:
- If the application of international law requires a renvoi to municipal law, how should that renvoi be conducted?
- In investment disputes, what role, if any, should municipal law have in assessing State attribution under international law?
- Should shareholders receive compensation for damages suffered by their company due to a violation of an international obligation vis-à-vis the company?
- Under what conditions may a violation of municipal law become internationally wrongful?
- May foreign investors rely on ‘expectations’ as an autonomous source of rights in investment treaty disputes?
- Does an alleged breach of an umbrella clause transform a breach of contract claim covered by municipal law into an international law claim?
- The chapters answer these and many other questions in extraordinary depth, drawing on detailed analyses of the issues and implications posed by major relevant cases and arbitral decisions.
How this will help you:
In international law, arbitrators need to be attentive to the circumstances where municipal law supplies the necessary substantive legal rule. They will find this book to be the best guide to this complex challenge. The author’s analysis of the unavoidable interaction of municipal law and international law in investment treaty arbitration – and the consequences stemming from rejecting the application of municipal law when relevant – will continue to be of great value to arbitrators, arbitration counsel, corporate counsel, and scholars of international law.
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List of Abbreviations
Introduction: The Unsettled Relationship Between International Law and Municipal Law
CHAPTER 1 Attribution under the Law of State Responsibility
CHAPTER 2 Article 42 of the ICSID Convention and the Relationship Between International Law and Municipal Law
CHAPTER 3 Investor Nationality under Municipal and International Law
CHAPTER 4 From Property to Investment
CHAPTER 5 Shareholders’ Rights
CHAPTER 6 Treaty versus Contract Claims, and Umbrella Clauses: When a Contract Breach May Become a Treaty Breach
Conclusion: The Unsettled Relationship Between International and Municipal Law
APPENDIX I Hermann Abs and Lord Shawcross, Draft Convention on Investments Abroad (1959)
APPENDIX II Treaty Between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments (1959)
APPENDIX III Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens (1961)
APPENDIX IV Organisation for Economic Co-operation and Development Draft Convention on the Protection of Foreign Property (1967)