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Contents
- Preliminary Material
- Main Text
- PART I INTRODUCTION
- PART II JURISDICTION
- 3 MOST FAVOURED NATION CLAUSES AND JURISDICTIONAL CLAUSES IN INVESTMENT TREATY ARBITRATION
- A Introduction
- B A Brief Reference to the Concept, Origin, and Purpose of MFN Clauses
- C Application of MFN Clauses to Dispute Settlement
- The MFN clause as a way to avoid BITs’ procedural requirements prior to resorting to arbitration: the Maffezini path
- Application of the MFN clause to expand subject-matter jurisdiction or allow the investor to appear before a different forum to that provided in the BIT
- Consent to arbitration as one of the key issues at stake
- 4 MFN CLAUSES AND DISPUTE RESOLUTION IN INVESTMENT TREATIES: HAVE WE REACHED THE END OF THE ROAD?
- 5 INVESTMENTS ‘IN THE TERRITORY’ OF THE HOST STATE
- 6 CONSENT AND DUE PROCESS IN MULTIPARTY INVESTOR-STATE ARBITRATIONS
- 7 JURISDICTION, COMPETENCE, AND ADMISSIBILITY OF CLAIMS IN ICSID ARBITRATION PROCEEDINGS
- 8 BRIDGING THE CONTRACT/TREATY DIVIDE
- 9 MONITORING OF DOMESTIC COURTS IN BIT ARBITRATIONS: A BRIEF INVENTORY OF SOME ISSUES
- 3 MOST FAVOURED NATION CLAUSES AND JURISDICTIONAL CLAUSES IN INVESTMENT TREATY ARBITRATION
- PART III PROCEDURE
- 10 ARBITRATOR INDEPENDENCE IN ICSID ARBITRATION
- 11 PROVISIONAL MEASURES IN RECENT ICSID PROCEEDINGS: WHAT PARTIES REQUEST AND WHAT TRIBUNALS ORDER
- A Introduction
- B The Power of an Arbitral Tribunal to Recommend or Order Provisional Measures under Article 47 of the ICSID Convention and ICSID Arbitration Rule 39
- C The Pre-requisites of Provisional Measures in ICSID Proceedings: Necessity, Urgency, and Irreparable Harm
- D The Rights to be Preserved
- E The Practice of ICSID Tribunals: Parties’ Requests and Measures Granted
- F Implementation of Provisional Measures and Failure to Comply
- G Conclusions
- 12 INHERENT POWERS OF NATIONAL AND INTERNATIONAL COURTS: THE PRACTICE OF THE IRAN-US CLAIMS TRIBUNAL
- 13 ICSID ANNULMENT DECISIONS: THREE GENERATIONS REVISITED
- 14 THE SCOPE OF ICSID REVIEW: REMARKS ON SELECTED PROBLEMATIC ISSUES OF ICSID DECISIONS
- A Introduction: Four Generations of Annulment Proceedings
- B Review of ICSID Arbitral Awards in a Comparative Perspective
- C The Use of Precedent in ICSID Arbitration
- D ICSID Control over Quality and Consistency of Arbitral Awards
- E Remedies for Consistency and Legitimacy Lacunae Inherent in Article 52
- F Concluding Remarks
- 15 ON THE DENUNCIATION OF THE ICSID CONVENTION, CONSENT TO ICSID JURISDICTION, AND THE LIMITS OF THE CONTRACT ANALOGY
- A Introduction
- B Consent
- C Denunciation and Consent
- D The Limits of the Contract Analogy
- E Conclusions
- 16 DENOUNCING ICSID
- A Introduction
- B Foundation
- C Rules
- Text
- Tension
- Permutations
- Rule permutation 1 (clarifying)
- Version 1.1 (list)
- Version 1.1.1 (bilateral)
- Version 1.1.2 (assumed unilateral)
- Version 1.2 (consenting)
- Version 1.2.1 (assumed unilateral)
- Version 1.2.2 (unilateral exception)
- Rule permutation 2 (abrogation)
- Version 2.1 (list)
- Version 2.1.1 (bilateral)
- Version 2.1.2 (assumed unilateral)
- Version 2.2 (consenting)
- Version 2.2.1 (assumed unilateral)
- Version 2.2.2 (unilateral exception)
- D History
- E Purposive Theories
- F Projection
- 17 STATE IMMUNITY AND THE ENFORCEMENT OF INVESTOR-STATE ARBITRAL AWARDS
- 18 ENFORCEMENT OF ICSID AWARDS: ARTICLES 53 AND 54 OF THE ICSID CONVENTION
- Part IV INVESTMENT ARBITRATION AND OTHER FORMS OF INVESTMENT PROTECTION
- 19 THE DIPLOMATIC PROTECTION OF FOREIGN INVESTORS: A TALE OF JUDICIAL CAUTION
- 20 CLAIMS OF SHAREHOLDERS IN INTERNATIONAL INVESTMENT LAW
- 21 CHANCELLOR WIRTH AND THE MOLOGALES CONCESSION 1923–1927: THE GERMAN-SPEAKING ORIGINS OF THE 1965 ICSID CONVENTION
- A Introduction
- B The 1918 Brest-Litovsk Treaties
- C The 1921 Provisional Treaty
- D The 1922 Rapallo Treaties
- E The 1922 Genoa Conference
- F Early German-Soviet Concessions
- G Bersol
- H The Junkers Concession
- I The Mologales Concession
- J 1923 Arbitration Agreement
- K 1923–1927
- L 1927 Arbitration Agreement
- M Post-Mortem
- N Conclusion
- APPENDIX The 1923 Mologales Concession Arbitration Agreement
- PART V SUBSTANTIVE INVESTMENT LAW
- 22 IDENTIFY OR DEFINE? REFLECTIONS ON THE EVOLUTION OF THE CONCEPT OF INVESTMENT IN ICSID PRACTICE
- 23 LOCAL REMEDIES AND THE STANDARDS FOR THE PROTECTION OF FOREIGN INVESTMENT
- 24 PREMATURE TREATY CLAIMS
- 25 DO UMBRELLA CLAUSES APPLY TO UNILATERAL UNDERTAKINGS?
- 26 BIT BY BIT: THE SILENT LIBERALIZATION OF THE CAPITAL ACCOUNT
- 27 THE UNITED STATES 2004 MODEL BILATERAL INVESTMENT TREATY AND DENIAL OF JUSTICE IN INTERNATIONAL LAW
- PART VI REGIONAL ASPECTS OF INVESTMENT PROTECTION
- 28 THE CANADIAN APPROACH TO INVESTMENT PROTECTION: HOW FAR WE HAVE COME!
- 29 CONFLICT OF NORMS STEMMING FROM INTRA-EU BITS AND EU LEGAL OBLIGATIONS: SOME REMARKS ON POSSIBLE SOLUTIONS
- 30 INVESTMENT RULES IN REGIONAL INTEGRATION AGREEMENTS IN LATIN AMERICA: THE CASE OF THE ANDEAN PACT/ANDEAN COMMUNITY
- A Introduction
- B Bilateral Investment Treaties (BITs) versus Regional Trade Agreements (RTAs) with Investment Provisions
- C From the Andean Pact (1969) to the Andean Community (1997)
- Establishment of the Andean Pact (1969)
- Withdrawal of Chile (1976)
- Further evolution of the Andean Pact
- Establishment of the Andean Community (1997)
- Withdrawal of Venezuela (2006)
- Chile as an associate member (2006)
- Compatibility of the Sub-regional Andean Pact/Andean Community with the Latin American Free Trade Association (LAFTA) and its conformity with GATT
- D Investment Regimes within the Andean Pact (1969)/Andean Community (1997)
- The Latin American Free Trade Association (LAFTA) (1960)—a Regional Framework Agreement for the Sub-regional Andean Pact (1969)
- Strategy change in the Andean Pact with regard to the treatment of foreign investments
- Primary law provisions of the Cartagena Agreement
- Secondary law provisions
- E Related Regimes: Dual Taxation and Deregulation of Services
- F Possible Reforms of the Current Regimes Governing Foreign Investments in the Andean Community
- G Final Considerations
- PART VII INVESTMENT LAW AND OTHER FIELDS
- 31 THE ‘PROVISIONAL APPLICATION’ OF THE ENERGY CHARTER TREATY
- A Introduction
- B The Meaning of Provisional Application
- C The Nebulous Use of the Term ‘Provisional Application’
- D The Reasons for Provisional Application
- E The Provisional Application of the Energy Charter Treaty
- F Conclusion
- 32 CHANGED CIRCUMSTANCES IN INVESTMENT LAW: INTERFACES BETWEEN THE LAW OF TREATIES AND THE LAW OF STATE RESPONSIBILITY WITH A SPECIAL FOCUS ON THE ARGENTINE CRISIS
- A Introduction
- B Necessity in the Argentine Crisis before Investment Tribunals
- C Findings of the Different Tribunals in the Light of General International Law
- Rules of treaty interpretation
- Norm conflict resolution techniques (the lex specialis principle)
- The relationship between the law of treaties and the law of State responsibility
- Generalities on the relationship between primary and secondary rules, the law of treaties, and the law of State responsibility
- Do treaty-based emergency exceptions per se have any implications for the applicability of the necessity defence under customary international law?
- The different tribunals’ decisions in the light of these findings
- D Conclusion
- 33 THE ECONOMIC EMERGENCY DEFENCE IN BILATERAL INVESTMENT TREATIES: A DEVELOPMENT PERSPECTIVE
- 34 THE EUROPEAN COURT OF HUMAN RIGHTS AND INVESTMENT PROTECTION
- 35 RECENT CASE LAW ON THE PROTECTION OF PROPERTY IN THE EUROPEAN CONVENTION ON HUMAN RIGHTS
- 36 HARMONIZING INVESTMENT PROTECTION AND INTERNATIONAL HUMAN RIGHTS: FIRST STEPS TOWARDS A METHODOLOGY
- 37 JOINT TORTFEASORS IN INVESTMENT LAW
- 38 INTERPRETING INVESTMENT TREATIES: EXPERIENCES AND EXAMPLES
- A Introduction: Between International Arbitration, Classic International Law, and under the Increasing Shadow of the Vienna Rules
- B Pro-State and Pro-investor Approaches, the Dictionary versus Policy Approach, and the Fiction of the Competent but Mysterious Treaty Drafter
- C The Vienna Rules of Treaty Interpretation: A Single Order but with Different Styles
- D Special Interpretative Challenges Rooted in the Nature of Investment Treaties
- E Investment Treaty Interpretation under the Vienna Convention
- Article 31 general rule of interpretation
- Article 31(1): ‘ordinary meaning’
- Article 31(1) and (2): ‘context’
- Article 31(1): ‘object and purpose’
- Article 31(3)(a) and (b): subsequent interpretative agreements and practice
- Article 31(3)(c): Regressive restraint or progressive evolution through international law?
- Article 32: supplementary means
- F Conclusion
- 39 COMMERCIAL ARBITRATION AND INVESTMENT ARBITRATION: FERTILE SOIL FOR FALSE FRIENDS?
- 31 THE ‘PROVISIONAL APPLICATION’ OF THE ENERGY CHARTER TREATY
- PART VIII THE FUTURE
- 40 CONTINUITY AND DISCONTINUITY IN INTERNATIONAL DISPUTE SETTLEMENT
- 41 CONTEMPORARY LAW OF FOREIGN INVESTMENT: REVISITING THE STATUS OF INTERNATIONAL LAW
- A A Pioneer of International Investment Law
- B The Past Decades: Winds of Change in Shifting Directions
- C International Law and the Genesis of ICSID: Searching for a Global Consensus at a Time of Global Policy Disarray
- D International Law Predominant in Negotiations on the ICSID Convention
- E Recent Investment Disputes outside ICSID: From Private Law to Public Law
- F ICSID Jurisprudence: International Law as the Framework
- G The Applicability of International Law Independent of ICSID
- H Recalling the Foundations: The Protection of a Foreign Investor by International Law
- I Contemporary Developments: The New Global Concern for the Protection of Foreign Investment
- J Conclusion
- 42 PRECEDENT IN INVESTMENT TREATY ARBITRATION
- 43 THE SAGA OF CMS: RES JUDICATA, PRECEDENT, AND THE LEGITIMACY OF ICSID ARBITRATION
- 44 COMPLIANCE WITH INVESTMENT TREATIES: WHEN ARE STATES MORE LIKELY TO BREACH OR COMPLY WITH INVESTMENT TREATIES?
- 45 HUMAN RIGHTS, CONSTITUTIONALISM, AND ‘PUBLIC REASON’ IN INVESTOR-STATE ARBITRATION
- A Human Rights Require Multilevel Constitutional Protection of International Division of Labour
- B Rule of International Law Must be Protected in Conformity with Multilevel Human Rights
- C Multilevel Economic Constitutionalism can Complement Multilevel Human Rights Law
- D Investor-State Arbitration Should Respect National and International Human Rights: Justice in Robes?
- E Need for a Constitutional Theory of Adjudication in International Economic Law
- F Constitutional Justice Requires more Inclusive ‘Public Reason’
- 46 THE FUTURE OF INVESTMENT ARBITRATION
- Further Material
