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Table of Cases | p. xvii |
Table of Treaties, Conventions, Resolutions, and Rules | p. xxix |
List of Abbreviations | p. xli |
Nature, Evolution, and Context of International Investment Law | p. 1 |
International Investment Law as a Field of Study | p. 1 |
The Business Nature of a Foreign Investment: A Long-Term Risk | p. 3 |
Host State Sovereignty and the Rules of Foreign Investment | p. 7 |
Customary International Law: The Emergence of a Minimum Standard | p. 11 |
Treaty Law: Evolution and Purpose | p. 17 |
Current Trends in Treaty Practice | p. 24 |
Regional Agreements: Energy Charter, NAFTA | p. 27 |
Interpretation and Application of Investment Treaties | p. 31 |
Interpreting Investment Treaties | p. 31 |
Methods of Treaty Interpretation | p. 31 |
Travaux Preparatoires | p. 33 |
Interpretative Statements | p. 34 |
The Authority of 'Precedents' | p. 35 |
Towards a Greater Uniformity of Interpretation | p. 37 |
Application of Investment Treaties in Time | p. 38 |
Inter-Temporal Application of Treaties in General | p. 38 |
Different Inter-Temporal Rules for Jurisdiction and Substance | p. 39 |
The Date Relevant to Determine Jurisdiction | p. 41 |
Relevant Dates under the ICSID Convention | p. 41 |
Inter-Temporal Rules in Other Treaties | p. 43 |
Investors and Investments | p. 46 |
Investors: Individuals, Companies, Nationality, and Shareholders | p. 46 |
Private Foreign Investors | p. 46 |
Nationality of Individuals | p. 47 |
Nationality of Corporations | p. 49 |
Article 25(2)(b) of the ICSID Convention: Agreement to Treat a Local Company as a Foreign National because of Foreign Control | p. 52 |
Nationality Planning and Denial of Benefits | p. 54 |
Shareholders as Investors | p. 56 |
Investment | p. 60 |
The Concept of an Investment | p. 60 |
Definitions in Investment Protection Treaties | p. 62 |
Case Law | p. 65 |
Investment Contracts | p. 72 |
Types of Investment Contracts | p. 72 |
Applicable Law | p. 73 |
Stabilization Clauses | p. 75 |
Renegotiation/Adaptation | p. 77 |
Admission and Establishment | p. 79 |
The Move towards Economic Liberalism | p. 79 |
Treaty Models of Admission | p. 80 |
Performance Requirements | p. 82 |
Non-Compliance by Investor with Host State Law and International Public Policy | p. 84 |
Expropriation | p. 89 |
The Right to Expropriate | p. 89 |
The Three Branches of the Law | p. 90 |
The Legality of the Expropriation | p. 90 |
Direct and Indirect Expropriation | p. 92 |
Broad Formulae: Their Substance and Evolution | p. 92 |
Judicial and Arbitral Practice: Some Illustrative Cases | p. 96 |
Effect or Intention? | p. 101 |
Legitimate Expectations | p. 104 |
The Issue of Control: Partial Expropriation? | p. 106 |
General Regulatory Measures | p. 109 |
Duration of a Measure | p. 112 |
Creeping Expropriation | p. 114 |
Expropriation of Contractual Rights | p. 115 |
Standards of Protection | p. 119 |
Fair and Equitable Treatment | p. 119 |
History of the Concept | p. 119 |
Heterogeneity of Treaty Language | p. 121 |
Nature and Function | p. 122 |
Fair and Equitable Treatment and Customary International Law | p. 124 |
The Evolution of the Fair and Equitable Treatment Standard | p. 128 |
Attempts at Defining Fair and Equitable Treatment | p. 130 |
Methodological Issues | p. 133 |
Specific Applications of the Fair and Equitable Treatment Standard | p. 133 |
Transparency, Stability, and the Protection of the Investor's Legitimate Expectations | p. 133 |
Compliance with Contractual Obligations | p. 140 |
Procedural Propriety and Due Process | p. 142 |
Good Faith | p. 144 |
Freedom from Coercion and Harassment | p. 147 |
Conclusion | p. 148 |
Full Protection and Security | p. 149 |
Concept | p. 149 |
Protection against Physical Violence and Harassment | p. 150 |
Legal Protection | p. 151 |
Relationship to Customary International Law | p. 152 |
The Umbrella Clause | p. 153 |
Access to Justice, Fair Procedure, and Denial of Justice | p. 162 |
Emergency, Necessity, Armed Conflicts, and Force Majeure | p. 166 |
Customary International Law | p. 166 |
Treaty Law | p. 167 |
The ILC Articles on State Responsibility | p. 168 |
Necessity | p. 168 |
Force Majeure | p. 171 |
Preservation of Rights | p. 172 |
Arbitrary or Discriminatory Measures | p. 173 |
The Meaning of Arbitrary Measures | p. 173 |
Relationship to Fair and Equitable Treatment and to Customary International Law | p. 175 |
The Meaning of Discriminatory Measures | p. 176 |
National Treatment | p. 178 |
General Meaning | p. 178 |
Application | p. 179 |
The Basis of Comparison | p. 180 |
The Existence of a Differentiation | p. 181 |
Is there a Justification for the Differentiation? | p. 181 |
The Relevance of Discriminatory Intent | p. 183 |
The Relevance of WTO Case Law | p. 184 |
Most-Favoured-Nation Treatment | p. 186 |
Introduction | p. 186 |
Variations of MFN Clauses | p. 187 |
Method of Interpretation | p. 188 |
Invoking Substantive Rights | p. 188 |
Current State of the Law | p. 190 |
Transfer of Funds | p. 191 |
State Responsibility and Attribution | p. 195 |
Organs, Provinces, and Municipalities | p. 195 |
State Organs | p. 196 |
Provinces and Municipalities | p. 197 |
State Entities | p. 198 |
The Role of State Entities | p. 198 |
Structure, Function, and Control | p. 200 |
Judicial Practice on Attribution | p. 201 |
State Responsibility for Failure to Protect | p. 204 |
Party Status for Constituent Subdivisions or Agencies under the ICSID Convention | p. 205 |
Political Risk Insurance | p. 207 |
Settling Investment Disputes | p. 211 |
State v State Disputes | p. 211 |
Diplomatic Protection | p. 211 |
Direct Disputes between States | p. 213 |
Investor v State Disputes | p. 214 |
The Role of Domestic Courts | p. 214 |
The Limited Usefulness of Domestic Courts | p. 214 |
The Requirement to Resort to Domestic Courts | p. 215 |
The Fork in the Road | p. 216 |
Selection of Domestic Courts in Contracts | p. 217 |
Arbitration and Conciliation | p. 220 |
Arbitration Institutions and Regimes | p. 222 |
ICSID | p. 222 |
ICSID Additional Facility | p. 224 |
Non-ICSID Investment Arbitration | p. 225 |
The International Chamber of Commerce | p. 227 |
The London Court of International Arbitration | p. 227 |
UNCITRAL Rules | p. 227 |
The Iran-United States Claims Tribunal | p. 228 |
The Permanent Court of Arbitration | p. 229 |
The Subject Matter of the Dispute (Jurisdiction Ratione Materiae) | p. 230 |
The Dispute | p. 230 |
The Legal Nature of the Dispute | p. 230 |
The Directness of the Dispute in Relation to the Investment | p. 231 |
The Investment | p. 233 |
The Parties to the Dispute (Jurisdiction Ratione Personae) | p. 233 |
The Host State | p. 234 |
The Investor | p. 235 |
The Investor's Nationality | p. 236 |
The Significance of the Additional Facility | p. 238 |
Consent to Arbitration | p. 238 |
Consent by Direct Agreement | p. 239 |
Consent through Host State Legislation | p. 240 |
Consent through Bilateral Investment Treaties | p. 242 |
Consent through Multilateral Treaties | p. 243 |
The Scope of Consent | p. 244 |
Procedural Conditions to Consent | p. 247 |
The Interpretation of Consent | p. 251 |
The Applicability of MFN Clauses to Dispute Settlement | p. 253 |
Procedure | p. 257 |
Provisional Measures | p. 262 |
Applicable Law | p. 265 |
Damages and Compensation | p. 271 |
Costs | p. 276 |
Challenge and Review of Decisions | p. 277 |
Review in non-ICSID Arbitration | p. 278 |
Annulment under the ICSID Convention | p. 279 |
Excess of Powers | p. 281 |
Serious Departure from a Fundamental Rule of Procedure | p. 283 |
Failure to State Reasons | p. 284 |
Resubmission to a New Tribunal | p. 285 |
Supplementation and Rectification under the ICSID Convention | p. 286 |
Interpretation under the ICSID Convention | p. 286 |
Revision under the ICSID Convention | p. 287 |
Enforcement of Awards | p. 287 |
Annexes | p. 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 |
Index | p. 421 |
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