The Vienna Convention as Authority for the Use of Precedent as Customary Practice in International Arbitrations of Oil Concessions and Investment Disputes in North Africa and the Gulf Arab States; or a Lex Mercatoria for a Lex Petrolea

2013 ◽  
pp. 918-940
Author(s):  
Mary B. Ayad
Keyword(s):  
International Law ◽  
International Investment ◽  
Customary Law ◽  
Vienna Convention ◽  
Commercial Arbitration ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Western Law ◽  
Lex Mercatoria

General principles of law are a valid source of law for arbitral tribunals. The Vienna Convention1 allows recourse to general principles of law. In Bilateral Investment Treaty (hereinafter “BIT”) interpretation but also in International Commercial Arbitration (hereinafter “ICA”)/International Investment Arbitration (“hereinafter “IIA”), arbitrators can be guided by the Vienna Convention2 and in so doing may refer to a number of ‘rules’ and norms of ‘international law’ applicable to the relations between states, such as those mentioned herein including principles drawn from the lex mercatoria or other types of international customary law, e.g. the principle of pacta sunt servanda, which honours contracts between states and investors, as well as the principle of precedent. Additionally, they may refer to customary norms from other jurisdictions that can harmonise with Western law.

ICSID Arbitration and the Importance of Public Accountability of a Private Judicature – A Roman Law Perspective

2007 ◽  
Vol 9 (1) ◽  
pp. 59-102 ◽  
Author(s):  
Frederic Gilles Sourgens
Keyword(s):  
International Law ◽  
International Investment ◽  
Civil Procedure ◽  
Customary Law ◽  
Roman Law ◽  
Public Accountability ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law

AbstractThis article explores the problems of public accountability in current investment law practice. These problems arise from the private interpretation of international investment treaty and customary law in arbitration. It analyses these problems through the historical lens of Roman law and the Roman law tradition in international law. It suggests a Praetorian system of international accountability and explores the remarkable similarities between current investment arbitration and classical Roman civil procedure.

THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS AND INVESTMENT TREATY ARBITRATION: A LIMITED RELATIONSHIP

2015 ◽  
Vol 64 (4) ◽  
pp. 905-933
Author(s):  
Jarrod Hepburn
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Applicable Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Domestic Law ◽  
Investment Treaty Arbitration

AbstractThe UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers the use of the Principles by investment tribunals on questions of both domestic law and international law. It suggests that reference to the Principles can play an important legitimating role on questions of domestic law, but that this should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

International Investment Arbitration

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
International Law ◽  
Present State ◽  
Critical Review ◽  
International Investment ◽  
Comprehensive Description ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Author Team ◽  
Substantive Law ◽  
Investment Treaty Arbitration

This is the long-awaited second edition of this widely-referenced work on the substantive law principles of investment treaty arbitration. It forms a detailed critical review of the substantive principles of international law applied by investment arbitration tribunals, and a clear and comprehensive description of the present state of the law. The first edition met with immediate success as a result of the authors’ achievement in describing and analysing the volume of law created, applied and analysed by tribunals. The second edition is fully updated to take account of the arbitration awards rendered in the period since 2007. Written by an internationally recognised author team, it is now the most comprehensive and up to date work in its field and no practitioner or academic can afford to be without it.

Civil Society and International Investment Arbitration

2020 ◽  
pp. 303-327
Author(s):  
Nathalie Bernasconi ◽  
Martin Dietrich Brauch ◽  
Howard Mann
Keyword(s):  
Civil Society ◽  
Dispute Settlement ◽  
International Investment ◽  
Public Law ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
International Investment Agreements

This chapter discusses the role of civil society in international investment arbitration. Much of the civil society focus on international arbitration has been on the investor–state dispute settlement (ISDS) process included in many international investment agreements. However, the historical role of commercial arbitration as the progenitor of investment treaty arbitration and the procedural and structural links between ISDS and commercial arbitration are important for the discussions on civil society engagement. Civil society recognized early on the problems of using a commercial arbitration model for investment arbitration, which involves public law matters, and concluded that this created a misappropriation of a tool that up to that time had only been used for private commercial purposes or very well-defined state-to-state purposes. The crossing of these purposes and actors to create public law arbitration between investors and states is what created this sense of misappropriation and led to a spotlight being shone on the regime by civil society. The chapter then looks back at the beginnings of civil society engagement with international arbitration through the experience with investment treaties, including the advancement of transparency and the ability to submit amicus curiae briefs.

Challenges to the Assessment of Damages Claims Involving Crypto-Assets in Investment Arbitration

Global Jurist ◽  
2020 ◽  
Vol 20 (2) ◽  
Author(s):  
Aveek Chakravarty
Keyword(s):  
International Law ◽  
International Investment ◽  
Foreign Investments ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Asset Classes ◽  
Distinct Features

AbstractThis article addresses the particular challenges involved in valuing various types of crypto-assets as investments under treaty-based investment arbitration. The interaction of the international investment protection regime with crypto-investments has largely remained un-examined, even though increasing amounts of foreign investments have flown into the development of crypto-assets its related markets. The existing investment treaty regime is set to face significant challenges in grappling with crypto-assets as investments due to several distinct features that differentiate them from traditional asset classes. This issue is explored further in the article from the perspective of the principles governing damages under international law.

scholarly journals Through the looking glass: The UNCITRAL Rules on Transparency and what they reveal about theories of investment treaty arbitration

2021 ◽  
Author(s):  
◽  
Johanna McDavitt
Keyword(s):  
International Law ◽  
Public Interest ◽  
Commercial Arbitration ◽  
Public International Law ◽  
The Public ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Theoretical Conception ◽  
Looking Glass ◽  
Investment Treaty Arbitration

<p>This paper aims to use the transparency debate within investment arbitration, and specifically the discussions of Working Group II when preparing the UNCITRAL Rules on Transparency, as a lens to examine how the international community conceptualises investment arbitration. It will argue that investment arbitration is no longer viewed as a private system of dispute resolution akin to international commercial arbitration. Rather, the public interest, public international law, and regulatory nature of investment arbitration is increasingly coming to the fore. Accordingly, the consent of the parties is no longer at the heart of arbitral authority. This paper aims to identify what alternate theoretical conception of investment arbitration is driving transparency initiatives in investment arbitration.</p>

Part II The Jurisprudence on Corruption in International Investment Arbitration: Case and Trend Analysis, 5 The Scope of Inquiry: Treaty vs. Contract 'Investment Arbitration'

2014 ◽  
Author(s):  
Llamzon Aloysius P
Keyword(s):  
Trend Analysis ◽  
Dispute Settlement ◽  
International Investment ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Treaty Arbitration

This chapter analyzes the nature of international investment arbitration and how that modality of dispute settlement differs from international commercial arbitration. The most obvious difference between investment and commercial arbitration is the nature of the parties' consent to arbitrate. In contract-based commercial arbitration, consent is expressed in a mutual, largely contemporaneous exchange of promises to bring a present or future dispute to arbitration. But in investment treaty arbitration, the host State's consent is usually expressed as an open offer of arbitration for all nationals of the counterparty State to the investment treaty. Investment arbitration proceedings also operate at high levels of transparency relative to commercial arbitration.

Part I Overview, 3 Dispute Resolution Provisions

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
General Rule ◽  
Vienna Convention ◽  
Bilateral Investment Treaties ◽  
Choice Of Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Legal Nature ◽  
Investment Treaties

Chapter 3 examines those aspects of dispute resolution provisions commonly found in bilateral investment treaties (BITs), with particular emphasis on four fundamental issues in the settlement of investment disputes through arbitration: (1) the clauses in investment treaties that provide for investor–State arbitration, focusing on the issue of the existence and limits of the consent to arbitrate; (2) transparency and the extent to which non-parties may be heard in the process; (3) the legal nature of the rights contained in investment treaties within the choice of law framework applicable to investment arbitration, in which both international law and host State law have a role to play; and (4) the overall approach to be taken to the interpretation of BITs under the general rule of interpretation provided in the Vienna Convention. The chapter concludes by discussing the role precedent plays in the development of investment treaty law.

scholarly journals Through the looking glass: The UNCITRAL Rules on Transparency and what they reveal about theories of investment treaty arbitration

2021 ◽  
Author(s):  
◽  
Johanna McDavitt
Keyword(s):  
International Law ◽  
Public Interest ◽  
Commercial Arbitration ◽  
Public International Law ◽  
The Public ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Theoretical Conception ◽  
Looking Glass ◽  
Investment Treaty Arbitration

<p>This paper aims to use the transparency debate within investment arbitration, and specifically the discussions of Working Group II when preparing the UNCITRAL Rules on Transparency, as a lens to examine how the international community conceptualises investment arbitration. It will argue that investment arbitration is no longer viewed as a private system of dispute resolution akin to international commercial arbitration. Rather, the public interest, public international law, and regulatory nature of investment arbitration is increasingly coming to the fore. Accordingly, the consent of the parties is no longer at the heart of arbitral authority. This paper aims to identify what alternate theoretical conception of investment arbitration is driving transparency initiatives in investment arbitration.</p>

Requirements for Amicus Curiae Participation in International Investment ArbitrationA Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15

2013 ◽  
Vol 12 (3) ◽  
pp. 365-390 ◽  
Author(s):  
Christian Schliemann
Keyword(s):  
International Law ◽  
International Investment ◽  
Recent Attempt ◽  
Arbitral Tribunal ◽  
Amicus Curiae ◽  
Legal Rules ◽  
Investment Arbitration ◽  
Legal Standard ◽  
Investment Law

Abstract The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.

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