Principles of International Investment Law

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  • Format: Hardcover
  • Copyright: 2008-05-28
  • Publisher: Oxford University Press
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This book outlines the principles behind the international law of foreign investment. The main focus is on the law governed by bilateral and multilateral investment treaties. The book traces the purpose, context and evolution of the clauses and provisions characteristic of contemporary investment treaties, and analyzes the case law interpreting the issues raised by standard clauses. Particular consideration is given to broad treaty-rules whose understanding in practice has mainly been shaped by their interpretation and application by international tribunals. In addition, the book introduces the dispute settlement mechanisms for enforcing investment law, outlining the operation of State vs. State and Investor vs. State arbitration. Combining a systematic analytical study of the texts and principles underlying investment law with a jurisprudential analysis of the case law arising in international tribunals, this book offers an ideal introduction to the principles of international investment law and arbitration.

Author Biography

Rudolf Dolzer is Professor and Director, Institute for International Law, at the University of Bonn, Germany Christoph Schreuer is Professor of International Law, University of Vienna, Austria

Table of Contents

Table of Casesp. xvii
Table of Treaties, Conventions, Resolutions, and Rulesp. xxix
List of Abbreviationsp. xli
Nature, Evolution, and Context of International Investment Lawp. 1
International Investment Law as a Field of Studyp. 1
The Business Nature of a Foreign Investment: A Long-Term Riskp. 3
Host State Sovereignty and the Rules of Foreign Investmentp. 7
Customary International Law: The Emergence of a Minimum Standardp. 11
Treaty Law: Evolution and Purposep. 17
Current Trends in Treaty Practicep. 24
Regional Agreements: Energy Charter, NAFTAp. 27
Interpretation and Application of Investment Treatiesp. 31
Interpreting Investment Treatiesp. 31
Methods of Treaty Interpretationp. 31
Travaux Preparatoiresp. 33
Interpretative Statementsp. 34
The Authority of 'Precedents'p. 35
Towards a Greater Uniformity of Interpretationp. 37
Application of Investment Treaties in Timep. 38
Inter-Temporal Application of Treaties in Generalp. 38
Different Inter-Temporal Rules for Jurisdiction and Substancep. 39
The Date Relevant to Determine Jurisdictionp. 41
Relevant Dates under the ICSID Conventionp. 41
Inter-Temporal Rules in Other Treatiesp. 43
Investors and Investmentsp. 46
Investors: Individuals, Companies, Nationality, and Shareholdersp. 46
Private Foreign Investorsp. 46
Nationality of Individualsp. 47
Nationality of Corporationsp. 49
Article 25(2)(b) of the ICSID Convention: Agreement to Treat a Local Company as a Foreign National because of Foreign Controlp. 52
Nationality Planning and Denial of Benefitsp. 54
Shareholders as Investorsp. 56
Investmentp. 60
The Concept of an Investmentp. 60
Definitions in Investment Protection Treatiesp. 62
Case Lawp. 65
Investment Contractsp. 72
Types of Investment Contractsp. 72
Applicable Lawp. 73
Stabilization Clausesp. 75
Renegotiation/Adaptationp. 77
Admission and Establishmentp. 79
The Move towards Economic Liberalismp. 79
Treaty Models of Admissionp. 80
Performance Requirementsp. 82
Non-Compliance by Investor with Host State Law and International Public Policyp. 84
Expropriationp. 89
The Right to Expropriatep. 89
The Three Branches of the Lawp. 90
The Legality of the Expropriationp. 90
Direct and Indirect Expropriationp. 92
Broad Formulae: Their Substance and Evolutionp. 92
Judicial and Arbitral Practice: Some Illustrative Casesp. 96
Effect or Intention?p. 101
Legitimate Expectationsp. 104
The Issue of Control: Partial Expropriation?p. 106
General Regulatory Measuresp. 109
Duration of a Measurep. 112
Creeping Expropriationp. 114
Expropriation of Contractual Rightsp. 115
Standards of Protectionp. 119
Fair and Equitable Treatmentp. 119
History of the Conceptp. 119
Heterogeneity of Treaty Languagep. 121
Nature and Functionp. 122
Fair and Equitable Treatment and Customary International Lawp. 124
The Evolution of the Fair and Equitable Treatment Standardp. 128
Attempts at Defining Fair and Equitable Treatmentp. 130
Methodological Issuesp. 133
Specific Applications of the Fair and Equitable Treatment Standardp. 133
Transparency, Stability, and the Protection of the Investor's Legitimate Expectationsp. 133
Compliance with Contractual Obligationsp. 140
Procedural Propriety and Due Processp. 142
Good Faithp. 144
Freedom from Coercion and Harassmentp. 147
Conclusionp. 148
Full Protection and Securityp. 149
Conceptp. 149
Protection against Physical Violence and Harassmentp. 150
Legal Protectionp. 151
Relationship to Customary International Lawp. 152
The Umbrella Clausep. 153
Access to Justice, Fair Procedure, and Denial of Justicep. 162
Emergency, Necessity, Armed Conflicts, and Force Majeurep. 166
Customary International Lawp. 166
Treaty Lawp. 167
The ILC Articles on State Responsibilityp. 168
Necessityp. 168
Force Majeurep. 171
Preservation of Rightsp. 172
Arbitrary or Discriminatory Measuresp. 173
The Meaning of Arbitrary Measuresp. 173
Relationship to Fair and Equitable Treatment and to Customary International Lawp. 175
The Meaning of Discriminatory Measuresp. 176
National Treatmentp. 178
General Meaningp. 178
Applicationp. 179
The Basis of Comparisonp. 180
The Existence of a Differentiationp. 181
Is there a Justification for the Differentiation?p. 181
The Relevance of Discriminatory Intentp. 183
The Relevance of WTO Case Lawp. 184
Most-Favoured-Nation Treatmentp. 186
Introductionp. 186
Variations of MFN Clausesp. 187
Method of Interpretationp. 188
Invoking Substantive Rightsp. 188
Current State of the Lawp. 190
Transfer of Fundsp. 191
State Responsibility and Attributionp. 195
Organs, Provinces, and Municipalitiesp. 195
State Organsp. 196
Provinces and Municipalitiesp. 197
State Entitiesp. 198
The Role of State Entitiesp. 198
Structure, Function, and Controlp. 200
Judicial Practice on Attributionp. 201
State Responsibility for Failure to Protectp. 204
Party Status for Constituent Subdivisions or Agencies under the ICSID Conventionp. 205
Political Risk Insurancep. 207
Settling Investment Disputesp. 211
State v State Disputesp. 211
Diplomatic Protectionp. 211
Direct Disputes between Statesp. 213
Investor v State Disputesp. 214
The Role of Domestic Courtsp. 214
The Limited Usefulness of Domestic Courtsp. 214
The Requirement to Resort to Domestic Courtsp. 215
The Fork in the Roadp. 216
Selection of Domestic Courts in Contractsp. 217
Arbitration and Conciliationp. 220
Arbitration Institutions and Regimesp. 222
ICSIDp. 222
ICSID Additional Facilityp. 224
Non-ICSID Investment Arbitrationp. 225
The International Chamber of Commercep. 227
The London Court of International Arbitrationp. 227
UNCITRAL Rulesp. 227
The Iran-United States Claims Tribunalp. 228
The Permanent Court of Arbitrationp. 229
The Subject Matter of the Dispute (Jurisdiction Ratione Materiae)p. 230
The Disputep. 230
The Legal Nature of the Disputep. 230
The Directness of the Dispute in Relation to the Investmentp. 231
The Investmentp. 233
The Parties to the Dispute (Jurisdiction Ratione Personae)p. 233
The Host Statep. 234
The Investorp. 235
The Investor's Nationalityp. 236
The Significance of the Additional Facilityp. 238
Consent to Arbitrationp. 238
Consent by Direct Agreementp. 239
Consent through Host State Legislationp. 240
Consent through Bilateral Investment Treatiesp. 242
Consent through Multilateral Treatiesp. 243
The Scope of Consentp. 244
Procedural Conditions to Consentp. 247
The Interpretation of Consentp. 251
The Applicability of MFN Clauses to Dispute Settlementp. 253
Procedurep. 257
Provisional Measuresp. 262
Applicable Lawp. 265
Damages and Compensationp. 271
Costsp. 276
Challenge and Review of Decisionsp. 277
Review in non-ICSID Arbitrationp. 278
Annulment under the ICSID Conventionp. 279
Excess of Powersp. 281
Serious Departure from a Fundamental Rule of Procedurep. 283
Failure to State Reasonsp. 284
Resubmission to a New Tribunalp. 285
Supplementation and Rectification under the ICSID Conventionp. 286
Interpretation under the ICSID Conventionp. 286
Revision under the ICSID Conventionp. 287
Enforcement of Awardsp. 287
Annexesp. 291
Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) (March 1965)p. 291
Energy Charter Treaty (Parts I, III, V) (December 1994)p. 314
North American Free Trade Agreement (NAFTA), Chapter XI (December 1992)p. 330
Agreement between the People's Republic of China and the Government of [...] on the Promotion and Protection of Investments (Chinese Model BIT) (2003)p. 352
Accord entre le Gouvernement de la Republique Francaise et le Gouvernement de [...] sur l'Encouragement et la Protection Reciproques des Investissements (French Model BIT) (2006)p. 360
Treaty between the Federal Republic of Germany and [...] Concerning the Encouragement and Reciprocal Protection of Investments (German Model BIT) (2005)p. 368
Draft Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of [...] for the Promotion and Protection of Investments (UK Model BIT) (2005)p. 376
Treaty between the Government of the United States of America and the Government of [...] concerning the Encouragement and Reciprocal Protection of Investment (US Model BIT) (2004)p. 385
Indexp. 421
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