Abstract
One of the central concerns in establishing an MIC is the creation of institutional framework conditions for the avoidance of contradictory decisions and the development of a uniform decision-making practice in the settlement of investment disputes.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
- 2.
- 3.
So far, arbitral awards generally accept, that MFN clauses can help to “import” more preferable protection standards of other agreements. Cf. e.g. Berschader v. Russian Federation, SCC Case No. 080/2004, Award, 21.4.2006, para. 179: “[…] it is universally agreed that the very essence of an MFN provision in a BIT is to afford to investors all material protection provided by subsequent treaties […].” See Dolzer and Schreuer (2012), p. 211: “The weight of authority clearly supports the view that an MFN rule grants a claimant the right to benefit from substantive guarantees contained in third treaties.” CETA and other EU agreements exclude the application of MFN clauses on procedural aspects and to substantial protection provisions of other agreements. Cf. Art. 8.7 para. 4 CETA: “For greater certainty, the “treatment” referred to in paragraphs 1 and 2 does not include procedures for the resolution of investment disputes between investors and states provided for in other international investment treaties and other trade agreements. Substantive obligations in other international investment treaties and other trade agreements do not in themselves constitute “treatment”, and thus cannot give rise to a breach of this Article, absent measures adopted or maintained by a Party pursuant to those obligations.”
- 4.
- 5.
Cf. Kläger (2011); Yannaca-Small (2008), p. 112; Jacob and Schill (2015), p. 700; Tudor (2008).
- 6.
- 7.
Weeramantry (2012), p. 191; Dolzer and Schreuer (2012), p. 30; Yen (2014), p. 91 et seq.: “Interpreting general and vague treaty terms that can convey various meanings, tribunals have sought guidance in the treaty title and preamble. On that basis, they have found the prominent purpose of protecting and promoting investments to justify their pro-investment interpretations. […] A more serious problem arises where reliance on this means of interpretation is accompanied with a disregard of other means under international rules on treaty interpretation.” See also the critique of NGOs: Eberhardt and Olivet (2012), p. 16: “This report argues that the alleged fairness and independence of investment arbitration is an illusion. The law and the consequential disputes are largely shaped by law firms, arbitrators […]. This industry is also responsible for growing its own business with pro-investor interpretations of the treaties.” Cf. also Open Letter from Lawyers to the Negotiators of the Trans-Pacific Partnership urging the Rejection of Investor-State Dispute Settlement, 8.5.2012, https://tpplegal.wordpress.com/open-letter/: “Simultaneously, the substantive rights granted by FTA investment chapters and BITs have also expanded significantly and awards issued by international arbitrators against states have often incorporated overly expansive interpretations of the new language in investment treaties. Some of these interpretations have prioritized the protection of the property and economic interests of transnational corporations over the right of states to regulate and the sovereign right of nations to govern their own affairs.”
- 8.
Cf. SGS Société Générale de Surveillance S.A. v. Republic of the Philippines, ICSID Case No. ARB/02/6, Decision on Jurisdiction, 29.1.2004, para. 116: “The object and purpose of the BIT supports an effective interpretation of Article X(2).The BIT is a treaty for the promotion and reciprocal protection of investments. According to the preamble it is intended “to create and maintain favourable conditions for investments by investors of one Contracting Party in the territory of the other. It is legitimate to resolve uncertainties in its interpretation so as to favour the protection of covered investments.”; Noble Ventures, Inc. v. Romania, ICSID Case No. ARB/01/11, Award, 12.10.2005, para. 52: “The object and purpose rule also supports such an interpretation. While it is not permissible, as is too often done regarding BITs, to interpret clauses exclusively in favour of investors, here such an interpretation is justified. Considering, as pointed out above, that any other interpretation would deprive Art. II(2)(c) of practical content, reference has necessarily to be made to the principle of effectiveness, also applied by other Tribunals in interpreting BIT provisions (see SGS v. Philippines, para. 116 and Salini v. Jordan, para. 95).”
- 9.
Article 42 ICSID Convention: “The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable.”
- 10.
Schreuer et al. (2009), Art. 42, para. 23.
- 11.
Cf. Amco v. Indonesia, Resubmitted Case: Award, 5.6.1990, para. 20, 1 ICSID Reports 580: “This Tribunal notes that Article 42(1) refers to the application of host-state law and international law. If there are no relevant host-state laws on a particular matter, a search must be made for the relevant international laws. And, where there are applicable host-state laws, they must be checked against international laws, which will prevail in case of conflict. Thus international law is fully applicable and to classify its role as “only” “supplemental and corrective” seems a distinction without a difference.” Dolzer and Schreuer (2012), p. 292.
- 12.
Wena Hotels v. Egypt, Decision on Annulment, 5.2.2002, 6 ICSID Reports 129, para. 40: “What is clear is that the sense and meaning of the negotiations leading to the second sentence of Article 42(1) allowed for both legal orders to have a role. The law of the host State can indeed be applied in conjunction with international law if this is justified. So too international law can be applied by itself if the appropriate rule is found in this other ambit.” Gaillard and Banifatemi (2003), p. 377.
- 13.
Dolzer and Schreuer (2012), p. 288.
- 14.
Cf. Article 10 para. 7 Argentina-Netherlands BIT: “The arbitration tribunal addressed in accordance with paragraph (5) of this Article shall decide on the basis of the law of the Contracting Party which is a party to the dispute (including its rules on the conflict of law), the provisions of the present Agreement, special Agreements concluded in relation to the investment concerned as well as such rules of international law as may be applicable.”
- 15.
Cf. Article 26 para. 6 ECT: “A tribunal established under paragraph (4) shall decide the issues in dispute in accordance with this Treaty and applicable rules and principles of international law.” Article 1130 North American Free Trade Agreement (NAFTA) Governing Law: “A Tribunal established under this Subchapter shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law.”
- 16.
ECJ, Opinion 1/91, EEA I, ECLI:EU:C:1991:490, para. 40: “An international agreement providing for such a system of courts is in principle compatible with Community law. The Community’s competence in the field of international relations and its capacity to conclude international agreements necessarily entails the power to submit to the decisions of a court which is created or designated by such an agreement as regards the interpretation and application of its provisions.”
- 17.
ECJ, Opinion 1/09, European Patents Court, ECLI:EU:C:2011:123, para. 78: “By contrast, the international court envisaged in this draft agreement is to be called upon to interpret and apply not only the provisions of that agreement but also the future regulation on the Community patent and other instruments of European Union law, in particular regulations and directives in conjunction with which that regulation would, when necessary, have to be read, namely provisions relating to other bodies of rules on intellectual property, and rules of the FEU Treaty concerning the internal market and competition law. Likewise, the PC may be called upon to determine a dispute pending before it in the light of the fundamental rights and general principles of European Union law, or even to examine the validity of an act of the European Union.” Cf. further para. 89: “Consequently, the envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field, would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law.”
- 18.
- 19.
The recently published CJEU opinion concerning the EU free trade agreement with Singapore only refers to the question, who has the competence to conclude the agreement. It does not refer to the question, whether the content of such an agreement complies with EU law. See CJEU, Opinion 2/15, Singapore agreement, ECLI:EU:C:2017:376, para. 30. From an investment protection point of view, the findings of the CJEU are interesting so far as, that the EU only has exclusive competences in regard to foreign direct investments, but neither in regard to portfolio-investments, nor to general provisions of dispute settlement of investor-state-disputes. In the course of the signature of the CETA-agreement, Belgium has requested the CJEU for an opinion about the compatibility of an investment court with the European treaties, cf. Council of the European Union, Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part—Opinion 1/17 before the CJEU.
- 20.
Achmea B.V. (formerly Eureko B.V.) v. Slovak Republic [I], PCA Case No. 2008-13, Award on Jurisdiction, Arbitrability and Suspension, 26.10.2010, para. 282 et seq.: “The argument that the ECJ has an “interpretative monopoly” and that the Tribunal therefore cannot consider and apply EU law, is incorrect. The ECJ has no such monopoly. Courts and arbitration tribunals throughout the EU interpret and apply EU law daily. What the ECJ has is a monopoly on the final and authoritative interpretation of EU law: but that is quite different. Moreover, even final courts are not obliged to refer questions of the interpretation of EU law to the ECJ in all cases. The acte clair doctrine is well-established in EU law.”
- 21.
Cf. Electrabel S.A. v. Republic of Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30.11.2012, para. 4.197 et seq.: “The Tribunal recognises the special status of EU law operating as a body of supranational law within the EU. It also recognises the roles undertaken by the ECJ as the arbiter and gate-keeper of EU law comprising, in the words of ECJ Opinion 1/09, “the fundamental elements of the legal order and judicial system of the EU” (paragraph 54). However, these important features do not arise in the present case. […] Although the Tribunal is required in this arbitration to interpret the European Commission’s Final Decision of 4 June 2008, and in that sense, to apply EU law to the Parties’ dispute, the Tribunal is not required to adjudicate here upon the validity of that decision […]. That adjudication remains a decision for the EU courts alone […].”
- 22.
Article 8.31 para. 2 CETA: “The Tribunal shall not have jurisdiction to determine the legality of a measure, alleged to constitute a breach of this Agreement, under the domestic law of a Party. For greater certainty, in determining the consistency of a measure with this Agreement, the Tribunal may consider, as appropriate, the domestic law of a Party as a matter of fact. In doing so, the Tribunal shall follow the prevailing interpretation given to the domestic law by the courts or authorities of that Party and any meaning given to domestic law by the Tribunal shall not be binding upon the courts or the authorities of that Party.”
- 23.
- 24.
2.369 BITs in force and 303 agreements in force including investment provisions. Division on Investment and Enterprise, http://investmentpolicyhub.unctad.org/IIA.
- 25.
- 26.
Brown (2015), p. 183.
- 27.
Vienna Convention on the Law of Treaties of 23.5.1969, 1155 UNTS 331.
- 28.
Marceddu (2016), p. 44.
- 29.
- 30.
Cf. e.g. the composition of the tribunals in Sempra and CMS (CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8, Award, 12.5.2005): Francisco Orrego Vicuna has served as President and Marc Lalonde as member of both tribunals. In general, the decisions are identical, the tribunal in Sempra Energy International v. The Argentine Republic, ICSID Case No. ARB/02/16, Award, 28.9.2007, para. 346 finds that: “While two arbitrators sitting in the present case were also members of the tribunal in the CMS case the matter has been examined anew.” Cf. additionally more critical Burke-White (2010), p. 425 et seq.; Dugan et al. (2008), p. 89 et seq.
- 31.
Commission (2007), p. 136: “The question as to whether or not ad hoc tribunals with ever-changing members can truly create precedent, and a distinct jurisprudence, is not a new one. As to investment treaty decisions and awards emanating from ICSID tribunals, however, the tribunal members are no longer ever-changing. Put simply, their backgrounds, qualifications, experiences in international law and their regular interactions, both professionally and otherwise, have contributed to the development of an esprit de corps amongst ICSID and other investment treaty arbitrators.” Cf. regarding the previous common practice of numerous reappointments of certain arbitrators Shihata and Parra (1999), p. 311.
- 32.
Commission (2007), p. 141; Fontoura Costa (2011), p. 11: “For instance, group of only 12 arbitrators (4.4%) of the ICSID population accounts for about a quarter of nominations […] the 12 people (first quartile) who account for over a quarter of the ICSID nominations are present in 60% of the tribunals, i.e. in 158 out of 263 tribunals. In other words, the group of more frequent arbitrators spreads their influence not only on a quarter of tribunals, but well over half of them.”
- 33.
Commission (2007), p. 141.
- 34.
Cf. the statements on the influence of the presence of permanent judges (as opposed to ad-hoc) on harmonised decisions on the occasion of the establishment of the Statute of the Permanent Court of International Justice (PCIJ), the predecessor of the International Court of Justice. Procès-Verbaux of the Proceedings of the Advisory Committee of Jurists, Annex No. 1, 695 (1920): “In the Court of Arbitration, there is no permanent tie between the sitting judges, and consequently, no esprit de corps nor progressive continuity in jurisprudence; on the other hand, the Court of International Justice, being composed of judges, permanently associated with each other in the same work, and, except in rare cases, retaining their seats from one case to another, can develop a continuous tradition, and assure the harmonious and logical development of International Law.”
- 35.
Article 3.2 DSU: “The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.”
- 36.
Jackson (1998), p. 342.
- 37.
Van Damme (2010), p. 606 et seq.
- 38.
Article 31 VCLT: “(1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. […] (3) There shall be taken into account, together with the context a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; c) any relevant rules of international law applicable in the relations between the parties.” Phoenix Action Ltd. v. Czech Republic, ICSID Case No. ARB/06/5, Award, 15.4.2009, para. 78: “It is evident to the Tribunal that the same holds true in international investment law and that the ICSID Convention’s jurisdictional requirements – as well as those of the BIT – cannot be read and interpreted in isolation from public international law, and its general principles.”; Alpha Projektholding GmbH v. Ukraine, ICSID Case No. ARB/07/16, Award, 8.11.2010, para. 233: “The Tribunal will apply the provisions of the UABIT and interpret the UABIT in a manner consistent with customary international law.” See for the systemic interpretation also Hofmann and Tams (2011), p. 53; McLachlan (2005), p. 279.
- 39.
El Paso v. Argentina, ICSID Case No. ARB/03/15, Decision on Jurisdiction, 27.4.2006, para. 70: “This Tribunal considers that a balanced interpretation is needed, taking into account both State sovereignty and the State’s responsibility to create an adapted and evolutionary framework for the development of economic activities, and the necessity to protect foreign investment and its continuing flow.” Weeramantry (2012), p. 193.
- 40.
Dolzer and Schreuer (2012), p. 101 et seq.; Vandevelde (2010), p. 285 et seq.: “Like the [first] German BITs, the Abs-Shawcross Convention also explicitly recognized the distinction between a direct and an indirect expropriation. […] The concept of an indirect expropriation in these early instruments quickly gained recognition in general BIT practice.” See e.g. Article 7 Switzerland-Guinea BIT 1962: “Falls eine Vertragspartei Vermögenswerte, Rechte oder Interessen von Staatsangehörigen […] enteignet oder verstaatlicht oder gegen diese Staatsangehörigen, Stiftungen, Vereinigungen oder Gesellschaften irgendeine andere Massnahme der direkten oder indirekten Besitzentziehung ergreift.” Article 3 Netherlands-Tunisia BIT 1965: “Where one Party expropriates or nationalizes property, rights or interests […] or takes any measure which results directly or indirectly in the dispossession of such nationals or corporations […].” Similarly also Article 3 BLEU (Belgium-Luxembourg Economic Union)-Tunisia BIT 1964.
- 41.
Cf. Methanex v. USA, UNCITRAL (NAFTA), Final Award, 3.8.2005, Part IV, D., para. 7: “[…] as a matter of general international law, a non-discriminatory regulation for a public purpose, which is enacted in accordance with due process and, which affects, inter alios, a foreign investor or investment is not deemed expropriatory and compensable unless specific commitments had been given by the regulating government to the then putative foreign investor contemplating investment that the government would refrain from such regulation.”; Saluka Investments BV (The Netherlands) v. The Czech Republic, Partial Award, 17.3.2006, para. 262: “[…] the principle that a State does not commit an expropriation and is thus not liable to pay compensation to a dispossessed alien investor when it adopts general regulations that are “commonly accepted as within the police power of States” forms part of customary international law today.”
- 42.
See e.g. Annex B(4) 2012 US Model BIT; Annex B.13(1) 2004 Canada Model FIPA; Annex 8-A(3) CETA: “For greater certainty, except in the rare circumstance when the impact of a measure or series of measures is so severe in light of its purpose that it appears manifestly excessive, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriations.”
- 43.
See e.g. Article 8.10 para. 2 CETA: “A Party breaches the obligation of fair and equitable treatment referenced in paragraph 1 if a measure or series of measures constitutes: a) denial of justice in criminal, civil or administrative proceedings; b) fundamental breach of due process, including a fundamental breach of transparency, in judicial and administrative proceedings; c) manifest arbitrariness; d) targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief; e) abusive treatment of investors, such as coercion, duress and harassment; or f) a breach of any further elements of the fair and equitable treatment obligation adopted by the Parties in accordance with paragraph 3 of this Article.”
- 44.
See e.g. Article 8.10 para. 5 CETA: “For greater certainty, “full protection and security” refers to the Party’s obligations relating to the physical security of investors and covered investments.”
- 45.
Cf. the comments of the ILC to Article 31 VCLT, in ILC, Draft Articles on the Law of Treaties with commentaries, Yearbook of the International Law Commission, 1966, vol. II, p. 220: “The article as already indicated is based on the view that the text must be presumed to be the authentic expression of the intentions of the parties; and that, in consequence, the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties.” See also Methanex v. USA, UNCITRAL (NAFTA), Final Award, 3.8.2005, Part II, B, para. 22: “[…] the approach of the Vienna Convention is that the text of the treaty is deemed to be the authentic expression of the intentions of the parties.” Wintershall v. Argentina, ICSID Case No. ARB/04/14, Award, 8.12.2008, para. 78: “The carefully-worded formulation in Article 31 is based on the view that the text must be presumed to be the authentic expression of the intention of the parties. The starting point of all treaty-interpretation is the elucidation of the meaning of the text, not an independent investigation into the intention of the parties from other sources (such as by reference to the travaux preparatoires, or any predilections based on presumed intention.”
- 46.
Article 31 para. 1 VCLT: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
- 47.
- 48.
Ryan (2008), p. 761: “That means that all participants will be required to adjust their expectations if the system is to flourish. The United States is attempting to more clearly define the scope of protections accorded to investors through changes to its Model BIT. In doing so, it has arguably narrowed the scope of protections available to investors. Investors, in turn, may be required to adjust their expectations in such a way that will allow them to operate in the changing legal environment.”
- 49.
Schreuer (2015), p. 881 et seq.
- 50.
Cf. Article 8.10 para. 2 CETA: “A Party breaches the obligation of fair and equitable treatment referenced in paragraph 1 if a measure or series of measures constitutes: a) denial of justice in criminal, civil or administrative proceedings; b) fundamental breach of due process, including a fundamental breach of transparency, in judicial and administrative proceedings; c) manifest arbitrariness; d) targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief; e) abusive treatment of investors, such as coercion, duress and harassment; or f) a breach of any further elements of the fair and equitable treatment obligation adopted by the Parties in accordance with paragraph 3 of this Article.”
- 51.
Cf. Article 8.10 para. 4 CETA: “When applying the above fair and equitable treatment obligation, the Tribunal may take into account whether a Party made a specific representation to an investor to induce a covered investment, that created a legitimate expectation, and upon which the investor relied in deciding to make or maintain the covered investment, but that the Party subsequently frustrated.”
- 52.
Cf. Kriebaum (2014), p. 482.
- 53.
Cf. Article 30 para. 3 US Model BIT 2012: “A joint decision of the Parties, each acting through its representative designated for purposes of this Article, declaring their interpretation of a provision of this Treaty shall be binding on a tribunal, and any decision or award issued by a tribunal must be consistent with that joint decision.” Article 31 US Model BIT 2012: “Where a respondent asserts as a defense that the measure alleged to be a breach is within the scope of an entry set out in Annex I, II, or III, the tribunal shall, on request of the respondent, request the interpretation of the Parties on the issue. […] 2. A joint decision issued under paragraph 1 by the Parties, each acting through its representative designated for purposes of this Article, shall be binding on the tribunal, and any decision or award issued by the tribunal must be consistent with that joint decision. If the Parties fail to issue such a decision within 90 days, the tribunal shall decide the issue.” Article 1131 para. 2 NAFTA: “An interpretation by the Commission of a provision of this Agreement shall be binding on a Tribunal established under this Section.”
- 54.
NAFTA Free Trade Commission Clarifications Related to NAFTA Chapter 11, Decisions of 31.7.2001, www.worldtradelaw.net/nafta/chap11interp.pdf: “B.1. Article 1105(1) prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to investments of investors of another Party. 2. The concepts of “fair and equitable treatment” and “full protection and security” do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.”
- 55.
Cf. Pope & Talbot Inc. v. Canada, Award in Respect of Damages, 31.5.2002, para. 47: “[w]ere the tribunal required to make a determination whether the commission’s action is an interpretation or an amendment, it would choose the latter.”
- 56.
- 57.
Kaufmann-Kohler (2011), pp. 181–183.
- 58.
- 59.
A potential risk of breaching certain procedural minimum guarantees in the sense of due process could be avoided, if there would be a mechanism of consultations in advance to a procedure. One possibility would be the establishment of a state-to-state mechanism of consultations that would enable an interpretative dialogue between the arise of a dispute and the beginning of the dispute settlement procedure. Cf. Ishikawa (2015), p. 145.
- 60.
Carbonneau (2003), p. 1211: “The tradition in prior practice had been to require only that the presiding arbitrator (the “neutral” arbitrator) be fully impartial. There was an expectation that party-designated arbitrators would be sympathetic to the position of the appointing party and would favor that position in the deliberations.”; Franck (2009), p. 443 et seq.: “All arbitrators are generally required to be impartial and to contribute to the adjudicatory outcome. Nevertheless, the presiding arbitrator performs a different role than the party-appointed arbitrator and his or her appointment is a matter of vital importance. The presiding arbitrator can “influence the style of an international arbitration” and make critical procedural decisions. Some suggest that presiding arbitrators resolve disputes between party-appointed arbitrators and, in some cases, become the ultimate decision makers.” Böckstiegel (2003), p. 371.
- 61.
Cf. Article 6(7) UNCITRAL Arbitration Rules 2010: “independent and impartial arbitrator”; Article 14 para. 1 ICSID Convention: “Persons […] of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment.” Article 18 para. 1 SCC Arbitration Rules 2017: “Every arbitrator must be impartial and independent. […].” Article 10.1 London Court of International Arbitration (LCIA) Arbitration Rules 2014: “The LCIA Court may revoke any arbitrator’s appointment upon its own initiative, at the written request of all other members of the Arbitral Tribunal or upon a written challenge by any party if: […] (iii) circumstances exist that give rise to justifiable doubts as to that arbitrator’s impartiality or independence.” Article 10 para. 1 Singapore International Arbitration Centre (SIAC) Investment Arbitration Rules 2017: “Any arbitrator appointed in an arbitration under these Rules, whether or not nominated by the Parties, shall be and remain at all times independent and impartial. […].” Poudret and Besson (2007), p. 346 et seq.; Lawson (2005), p. 22; Dimitropoulos (2016), p. 415 (proposed standards for the investment arbitration).
- 62.
IBA Guidelines on Conflicts of Interest in International Arbitration, Resolution of the International Bar Association Council of 23.10.2014. Wuschka (2016), p. 165.
- 63.
Sandrock (2015), p. 627.
- 64.
Article 8.30 para. 1 CETA: “The Members of the Tribunal shall be independent. They shall not be affiliated with any government. They shall not take instructions from any organisation, or government with regard to matters related to the dispute. They shall not participate in the consideration of any disputes that would create a direct or indirect conflict of interest. They shall comply with the International Bar Association Guidelines on Conflicts of Interest in International Arbitration or any supplemental rules adopted pursuant to Article 8.44.2. In addition, upon appointment, they shall refrain from acting as counsel or as party-appointed expert or witness in any pending or new investment dispute under this or any other international agreement.” This so called “German professors-clause” shall clarify that university professors, in countries where the universities are state-financed, are not excluded.
- 65.
UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, in force since 1.4.2014.
- 66.
Article 17 para. 1 UNCITRAL Arbitration Rules: “Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings each party is given a reasonable opportunity of presenting its case. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute.” Article 22 ICC Arbitration Rules 2017: “(2) In order to ensure effective case management, the arbitral tribunal, after consulting the parties, may adopt such procedural measures as it considers appropriate, provided that they are not contrary to any agreement of the parties. […] (4) In all cases, the arbitral tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case.” The right to be heard before the court is also reflected in the following articles of the ICSID Arbitration Rules 2006: Schreuer et al. (2009), p. 987: “The principle that both sides must be heard on all issues affecting their legal 305 position is one of the most basic concepts of fairness in adversarial proceedings. […] It is reflected throughout the ICSID Arbitration Rules (see esp. Rules 20, 21, 27, 31, 32, 37, 39, 40, 41, 42, 44, 49, 50, 54, 55).”; Petrochilos (2004), p. 254: “By ineluctable inference from the reference in Article 52 of the ICSID Convention to ‘fundamental’ procedural rules, an ICSID tribunal must respect the minimum standards of due process, namely the equality of the parties and the right to be heard.” Cf. Blackaby et al. (2009), para. 6.11 et seq.; Wälde (2011).
- 67.
Article 25 ICSID Convention: “(1) The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally. (2) “National of another Contracting State” means: (a) any natural person who had the nationality of a Contracting State other than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration as well as on the date on which the request was registered pursuant to paragraph (3) of Article 28 or paragraph (3) of Article 36, but does not include any person who on either date also had the nationality of the Contracting State party to the dispute; and (b) any juridical person which had the nationality of a Contracting State other than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration and any juridical person which had the nationality of the Contracting State party to the dispute on that date and which, because of foreign control, the parties have agreed should be treated as a national of another Contracting State for the purposes of this Convention.”
- 68.
Article 52 para. 1 ICSID Convention: “Either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds: (a) that the Tribunal was not properly constituted; (b) that the Tribunal has manifestly exceeded its powers; (c) that there was corruption on the part of a member of the Tribunal; (d) that there has been a serious departure from a fundamental rule of procedure; or (e) that the award has failed to state the reasons on which it is based.”
- 69.
Dolzer and Schreuer (2012), p. 241.
- 70.
As of 6.8.2018.
- 71.
As of 6.8.2018.
- 72.
United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, A/RES/69/116 of 10.12.2014.
- 73.
Cf. Article 28 para. 3 Norway Model BIT 2007, Draft version 191207: “All awards and substantive decisions of the Tribunal shall be made publicly available.”
- 74.
Cf. the opportunity not to publish decisions under ICSID and the Secretariat’s obligation to publish excerpts of the legal reasoning of the tribunal: Article 48 para. 5 ICSID Convention: “The Centre shall not publish the award without the consent of the parties” and Article 48 para. 4 ICSID Arbitration Rules: “The Centre shall not publish the award without the consent of the parties. The Centre shall, however, promptly include in its publications excerpts of the legal reasoning of the Tribunal” or the rules on transparency in Article 29 para. 1 US Model BIT 2012 concerning the publication of process documents: “the respondent shall, after receiving the following documents, promptly transmit them to the non-disputing Party and make them available to the public: (a) the notice of intent; (b) the notice of arbitration; (c) pleadings, memorials, and briefs submitted to the tribunal by a disputing party and any written submissions submitted pursuant to Article 28(2) [Non-Disputing Party submissions] and (3) [Amicus Submissions] and Article 33 [Consolidation]; (d) minutes or transcripts of hearings of the tribunal, where available; and (e) orders, awards, and decisions of the tribunal”, as well as Article 29 para. 2 concerning the publicity of hearings: “The tribunal shall conduct hearings open to the public and shall determine, in consultation with the disputing parties, the appropriate logistical arrangements. However, any disputing party that intends to use information designated as protected information in a hearing shall so advise the tribunal. The tribunal shall make appropriate arrangements to protect the information from disclosure.” Ortino (2013), p. 121.
- 75.
United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (Mauritius Convention on Transparency), concluded the 10.12.2014 and entered into force the 18.10.2017.
- 76.
Loken (2013), pp. 1302–1303.
- 77.
Article 8.36 CETA: “(1) The UNCITRAL Transparency Rules, as modified by this Chapter, shall apply in connection with proceedings under this Section. (2) The request for consultations, the notice requesting a determination of the respondent, the notice of determination of the respondent, the agreement to mediate, the notice of intent to challenge a Member of the Tribunal, the decision on challenge to a Member of the Tribunal and the request for consolidation shall be included in the list of documents to be made available to the public under Article 3(1) of the UNCITRAL Transparency Rules. (3) Exhibits shall be included in the list of documents to be made available to the public under Article 3(2) of the UNCITRAL Transparency Rules. (4) Notwithstanding Article 2 of the UNCITRAL Transparency Rules, prior to the constitution of the Tribunal, Canada or the European Union as the case may be shall make publicly available in a timely manner relevant documents pursuant to paragraph 2, subject to the redaction of confidential or protected information. Such documents may be made publicly available by communication to the repository. (5) Hearings shall be open to the public. The Tribunal shall determine, in consultation with the disputing parties, the appropriate logistical arrangements to facilitate public access to such hearings. If the Tribunal determines that there is a need to protect confidential or protected information, it shall make the appropriate arrangements to hold in private that part of the hearing requiring such protection. (6) Nothing in this Chapter requires a respondent to withhold from the public information required to be disclosed by its laws. The respondent should apply those laws in a manner sensitive to protecting from disclosure information that has been designated as confidential or protected information.”
- 78.
Ortino (2013), p. 126.
- 79.
Dolzer and Schreuer (2012), p. 286.
- 80.
- 81.
Cf. e.g. Article 4 UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration.
- 82.
- 83.
Schill (2015b), p. 3.
- 84.
Schill (2015b), p. 9.
- 85.
Cf. Article 48 para. 3 ICSID Convention: “The award shall deal with every question submitted to the Tribunal, and shall state the reasons upon which it is based.” Article 46 ICSID Convention: “Except as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counterclaims arising directly out of the subject-matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre.”
- 86.
Article 17 UNCITRAL Arbitration Rules: “The Arbitral Tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute.”
- 87.
According to the grounds of rescission of Article 52 ICSID Convention, that is at most Article 52 para. 1 lit. d) ICSID Convention: “serious departure from a fundamental rule of procedure”, the right to be heard before the court can be asserted. Cf. Malicorp Limited v. The Arab Republic of Egypt, ICSID Case No. ARB/08/18, Decision on the Application for Annulment, 3.7.2013, para. 36: “[…] the Parties agree on the substance of the principe du contradictoire and on the fact that it is a rule of procedure that ensures equality of the parties in an adversarial proceeding. The Committee further notes that this principle is closely related to the right to be heard. This right of parties to present their case has been recognized as part of that “set of minimal standards” considered fundamental for a fair hearing. The Committee thus concludes that the principe du contradictoire is a fundamental rule of procedure.” But an award that does not deal with the pleadings can also be contested under Article 52 para. 1 lit. b) ICSID Convention. See Schreuer et al. (2009), p. 816 et seq.: “An award that is not comprehensive and exhaustive of the parties’ questions amounts to an excess of powers just like a decision on questions that have not been submitted to the tribunal.”
- 88.
60 days of mediation and consultation before the proceeding, 45 days for the establishment of the panel, decision (report) within 60–70 days. See ASEAN Protocol on Enhanced Dispute Settlement Mechanism.
- 89.
Article 1904 para. 14 NAFTA: “Chapter 19-decisions have to be made within 315 days”; see also Rule 2 NAFTA Art. 1904 Panel Rules: “These rules are intended to give effect to the provisions of Chapter Nineteen of the Agreement with respect to panel reviews conducted pursuant to Article 1904 of the Agreement and are designed to result in decisions of panels within 315 days after the commencement of the panel review. The purpose of these rules is to secure the just, speedy and inexpensive review of final determinations in accordance with the objectives and provisions of Article 1904.”
- 90.
Butler (2015), p. 356.
- 91.
Sevilla (1998).
- 92.
Moonhawk (2008), pp. 657–686: “For example, stricter time limits can increase time pressure on bureaucracies. The possibility – in fact high likelihood – for review by the Appellate Body on issues of law further increases and countries’ need for deeper expertise in the WTO law increases.”
- 93.
Busch and Reinhardt (2003), p. 467 et seq.: “To that end, we note that the legal reforms of the DSU may actually raise the transaction costs inherent in settling disputes by affording opportunities for longer delays, increasing incentives for foot-dragging in litigation, and motivating defendants to delay concessions. Granted, each separate stage of the process now operates according to a tighter timeline, but this fact is overwhelmed by the new possibility, indeed, the inevitability of successive rounds of litigation in the same dispute, […] Further, the added stages of litigation, tight enforcement of terms of reference, the legal disincentives for disclosure, and the rules on standing, all serve to put the onus on disputants and third parties to legally mobilize as soon as possible in order to avoid losses on technicalities (i.e., having the panel or AB deem a certain argument outside its terms of reference) later on.”
- 94.
Cf. in Germany e.g. Article 86 VwGO (Code of Administrative Court Procedure); Article 26 BVerfGG (Act on the Federal Constitutional Court).
- 95.
Article 24 Protocol No. 3 CJEU Statue: “The Court of Justice may require the parties to produce all documents and to supply all information which the Court considers desirable. Formal note shall be taken of any refusal. The Court may also require the Member States and institutions, bodies, offices and agencies not being parties to the case to supply all information which the Court considers necessary for the proceedings.”
- 96.
E.g. Articles 49–51 ICJ Statute.
- 97.
Schill (2016), p. 118.
- 98.
Under German law, the principle of investigation applies in all proceedings whose subject touches particularly public interests.
- 99.
Article 7 DSU: “1. Panels shall have the following terms of reference unless the parties to the dispute agree otherwise within 20 days from the establishment of the panel: “To examine, in the light of the relevant provisions in (name of the covered agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document … and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s).” 2. Panels shall address the relevant provisions in any covered agreement or agreements cited by the parties to the dispute. 3. In establishing a panel, the DSB may authorize its Chairman to draw up the terms of reference of the panel in consultation with the parties to the dispute, subject to the provisions of paragraph 1. The terms of reference thus drawn up shall be circulated to all Members. If other than standard terms of reference are agreed upon, any Member may raise any point relating thereto in the DSB.”
- 100.
Article 23 ICC Arbitration Rules: “As soon as it has received the file from the Secretariat, the arbitral tribunal shall draw up, on the basis of documents or in the presence of the parties and in the light of their most recent submissions, a document defining its Terms of Reference. This document shall include the following particulars: a) the names in full, description, address and other contact details of each of the parties and of any person(s) representing a party in the arbitration; b) the addresses to which notifications and communications arising in the course of the arbitration may be made; c) a summary of the parties’ respective claims and of the relief sought by each party, together with the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims; d) unless the arbitral tribunal considers it inappropriate, a list of issues to be determined; e) the names in full, address and other contact details of each of the arbitrators; f) the place of the arbitration; and g) particulars of the applicable procedural rules and, if such is the case, reference to the power conferred upon the arbitral tribunal to act as amiable compositeur or to decide ex aequo et bono.”
- 101.
Article 8.22 para. 1 lit. e) CETA.
- 102.
For legally relevant facts that can be proven, the plaintiff must designate the available evidence. Concerning the fact-finding, the participants of the dispute have to be obliged to co-operation. The participants must point out and clarify circumstances that lie in their sphere. This obligation to co-operation serves the fact-finding. Therefore, in the case, that facts could be clarified by one participant especially in his own favour, the chamber must not investigate all conceivable courses of events. The plaintiff has to designate all legally relevant and provable facts as available evidences.
- 103.
Article 8.35 CETA: “If, following the submission of a claim under this Section, the investor fails to take any steps in the proceeding during 180 consecutive days or such period as the disputing parties may agree, the investor is deemed to have withdrawn its claim and to have discontinued the proceeding. The Tribunal shall, at the request of the respondent, and after notice to the disputing parties, in an order take note of the discontinuance. After the order has been rendered the authority of the Tribunal shall lapse.”
References
Ahner J (2015) Investor-Staat-Schiedsverfahren nach Europäischem Unionsrecht. Mohr Siebeck, Tübingen
Alexandrov SA (2004) Breaches of contract and breaches of treaty – the jurisdiction of treaty-based arbitration tribunals to decide breach of contract claims in SGS v Pakistan and SGS v Philippines. J World Invest Trade 5:555–577
Alvarez JE (2011) The return of the state. Minn J Int Law 20:223–264
Alvarez JE, Khamsi K (2009) The Argentine crisis and foreign investors: a glimpse into the heart of the investment regime. Yearb Int Law Policy 2008–2009:379–478
Binder C (2009) Changed circumstances in international investment law: interfaces between the law of treaties and the law of state responsibility with a special focus on the Argentine crisis. In: Binder C, Kriebaum U, Reinisch A, Wittich S (eds) International investment law in the 21st century, essays in honour of Christoph Schreuer. Oxford University Press, Oxford, pp 608–630
Bjorklund AK (2008) Emergency exceptions: state of necessity and force majeure. In: Muchlinski P, Ortino F, Schreuer C (eds) Oxford handbook of international investment law. Oxford University Press, Oxford, pp 459–523
Bjorklund AK (2009) Economic security defenses in international investment law. Yearb Int Invest Law Policy 2008–2009:479–503
Blackaby N, Partasides C, Redfern A, Hunter M (2009) Redfern and Hunter on international arbitration, 5th edn. Oxford University Press, Oxford
Böckstiegel KH (2003) The role of the arbitrators in investment treaty arbitration. In: van den Berg AJ (ed) International commercial arbitration: important contemporary questions. Kluwer Law International, The Hague, pp 366–375
Böckstiegel KH, Berger KP, Bredow J (2005) Die Beteiligung Dritter an Schiedsverfahren. Heymann, Köln
Brekoulakis SL (2010) Third parties in international commercial arbitration. Oxford University Press, Oxford
Brown C (2015) International investment agreements – history, approaches, schools. In: Bungenberg M, Griebel J, Hobe S, Reinisch A (eds) International investment law, a handbook. C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, pp 153–360
Burke-White WW (2010) The Argentine financial crisis: state liability under BITs and the legitimacy of the ICSID system. In: Waibel W, Kaushal A, Chung KH, Balchin C (eds) The Backlash against investment arbitration. Kluwer Law International, Alphen aan den Rijn, pp 407–432
Burke-White WW, von Staden A (2007) Investment protection in extraordinary times: interpreting non-precluded measures provisions. Va J Int Law 48:307–410
Busch ML, Reinhardt E (2003) Transatlantic trade conflicts and GATT/WTO dispute settlement. In: Petersmann EU, Pollack MA (eds) Transatlantic economic disputes: the EU, the US, and the WTO. Oxford University Press, Oxford, pp 465–485
Butler N (2015) In search of a model for the reform of international investment dispute resolution: an analysis of existing international and regional dispute settlement mechanisms. In: Kalicki JE, Joubin-Bret A (eds) Reshaping the investor-state dispute settlement system. Brill Nijhoff, Leiden, pp 353–380
Carbonneau TE (2003) The exercise of contract freedom in the making of arbitration agreements. Vanderbilt J Transnatl Law 36:1189–1232
Commission JP (2007) Precedent in investment treaty arbitration: a citation analysis of a developing jurisprudence. J Int Arbitr 24:129–158
De Brabandere E (2014) Investment treaty arbitration as public international law. Cambridge University Press, Cambridge
Dimitropoulos G (2016) Constructing the independence of international investment arbitrators: past, present and future. Northwest J Int Law Bus 36:371–434
Dolzer R, Schreuer C (2012) Principles of international investment law, 2nd edn. Oxford University Press, Oxford
Douglas Z (2011) The MFN clause in investment arbitration: treaty interpretation off the rails. J Int Dispute Settlement 2:97–113
Dugan C, Wallace D, Rubins ND, Sabahi B (2008) Investor-state arbitration. Oxford University Press, Oxford
Dupont PE (2011) The notion of ICSID investment: ongoing ‘confusion’ or ‘emerging synthesis’? J World Invest Trade 12:245–272
Eberhardt P, Olivet E (2012) Profiting from injustice: how law firms, arbitrators and financiers are fuelling an investment arbitration boom. Corporate Europe Observatory and the Transnational Institute, Brussels/Amsterdam
European Federation for Investment Law and Arbitration (2014) TTIP Consultation Submission
Ewing-Chow M, Losari JJ (2015) Which is to be the master? Extra-arbitral interpretative procedures for IIAs. In: Kalicki JE, Joubin-Bret A (eds) Reshaping the investor-state dispute settlement system. Brill Nijhoff, Leiden, pp 91–114
Fontoura Costa JA (2011) Comparing WTO panelists and ICSID arbitrators: the creation of international legal fields, 1/4 Oñati Socio-Legal Series 1
Franck SD (2009) Development and outcomes of investment treaty arbitration. Harv Int Law J 50:435–489
Gaillard E (2005) Establishing jurisdiction through a most-favoured-nation clause. N Y Law J 233, No. 105 of 2.6.2005
Gaillard E, Banifatemi Y (2003) The meaning of “and” in Article 42(1), second sentence, of the Washington Convention: the role of international law in the ICSID choice of law process. ICSID Rev Foreign Invest Law J 18:375–411
Hodgson M (2014) Investment treaty arbitration: how much does it cost? How long does it take? Allen Overy Publications of 18.2.2014
Hofmann R, Tams CJ (2011) International investment law and general international law – from clinical isolation to systemic integration? Nomos, Baden-Baden
Ishikawa T (2015) Keeping interpretation in investment treaty arbitration on track: the role of state parties. In: Kalicki JE, Joubin-Bret A (eds) Reshaping the investor-state dispute settlement system. Brill Nijhoff, Leiden, pp 115–149
Jackson JH (1998) Dispute settlement and the WTO. J Int Econ Law 1:329–351
Jacob M, Schill S (2015) Fair and equitable treatment: content, practice, method. In: Bungenberg M, Griebel J, Hobe S, Reinisch A (eds) International investment law. A handbook. Hard Publishing, Oxford, pp 700–763
Kaufmann-Kohler G (2011) Interpretive powers of the free trade commission and the rule of law. In: Bachand F (ed) Fifteen years of NAFTA Chapter 11 arbitration. Juris, Huntington, pp 175–194
Kaufmann-Kohler G, Boisson de Chazournes L, Bonnin V, Mbengue MM (2006) Consolidation of proceedings in investment arbitration: how can multiple proceedings arising from the same or related situations be handled efficiently? Final Report on the Geneva Colloquium of 22.4.2006. ICSID Rev Foreign Invest Law J 21:59–125
Kläger R (2011) “Fair and equitable treatment” in international investment law. Cambridge University Press, Cambridge
Kriebaum U (2014) FET and expropriation in the (invisible) EU model BIT. J World Invest Trade 15:454–483
Kurtz J (2014) Building legitimacy through interpretation in investor-state arbitration: on consistency, coherence and the identification of applicable law. In: Douglas Z, Pauwelyn J, Vinuales JE (eds) The foundations of international investment law, bringing theory into practice. Oxford University Press, Oxford, pp 257–296
Lavranos N (2011) Is an international investor-to-state arbitration system under the auspices of the ECJ possible? SSRN Electron J
Lawson DA (2005) Impartiality and independence of international arbitrators. Swiss Arbitr Assoc Bull 23:22–44
Levesque C, Newcombe A (2013) The evolution of IIA practice in Canada and the United States. In: De Mestral A, Levesque C (eds) Improving international investment agreements. Routledge, London, pp 25–41
Loken K (2013) Introductory note to UNCITRAL rules on transparency in treaty-based investor-state arbitration. Int Leg Mater 52:1300–1308
Manciaux S (2008) The notion of investment: new controversies. J World Invest Trade 9:443–466
Marceddu ML (2016) The EU dispute settlement: towards legal certainty in an uneven international investment system? Eur Invest Law Arbitr Rev 1:33–75
Maupin JA (2011) MFN-based jurisdiction in investor-state arbitration: is there any hope for a consistent approach? J Int Econ Law 14:157–190
McLachlan C (2005) The principle of systemic integration and Article 31(3)(c) of the Vienna Convention. Int Comp Law Q 54:279–319
Moonhawk K (2008) Costly procedures: divergent effects of legalization in the GATT/WTO dispute settlement procedures. Int Stud Q 52:657–686
Newcombe A (2013) Developments in IIA treaty-making. In: De Mestral A, Levesque C (eds) Improving international investment agreements. Routledge, London, pp 15–24
Ortino F (2013) Transparency of investment awards: external and internal dimensions. In: Nakagawa J (ed) Transparency in international trade and investment dispute settlement. Routledge, London, pp 119–158
Paparinskis M (2011) MFN clauses and international dispute settlement: moving beyond Maffezini and Plama. ICSID Rev Foreign Invest Law J 26:14–58
Petrochilos G (2004) Procedural law in international arbitration. Oxford University Press, Oxford
Poudret JF, Besson S (2007) Comparative law of international arbitration, 2nd edn. Sweet & Maxwell, London
Reinisch A (2007) Necessity in international investment arbitration – an unnecessary split of opinions in recent ICSID cases? J World Invest Trade 8:191–214
Reinisch A (2010) From the perennial issue of the notion of investment pursuant to Article 25 ICSID Convention and narrow dispute settlement provisions to further clarifications of substantive standards of protection – ICSID arbitration in 2009. Global Community – Yearbook of International Law and Jurisprudence, 749
Roberts A (2010) Power and persuasion in investment treaty interpretation: the dual role of states. Am J Int Law 104:179–225
Ruthemeyer T (2014) Der amicus curiae brief im Internationalen Investitionsrecht. Nomos, Baden-Baden
Ryan CM (2008) Meeting expectations: assessing the long-term legitimacy and stability of international investment law. Univ Pa J Int Law 29:725–762
Salacuse J (2013) The three laws of international investment. national, contractual, and international frameworks for foreign capital. Oxford University Press, Oxford
Sandrock O (2015) Das Internationale Handelsgericht im TTIP: The Permanent International Investment Tribunal. Recht der internationalen Wirtschaft 61:625–640
Schill S (2007) International investment law and the host state’s power to handle economic crises. J Int Arbitr 24:256–286
Schill S (2011) Allocating adjudicatory authority: most-favoured-nation clauses as a basis of jurisdiction – a reply to Zachary Douglas. J Int Dispute Settlement 2:353–371
Schill S (2015a) Editorial: opinion 2/13 – the end for dispute settlement in EU trade and investment agreements? J World Invest Trade 16:379–388
Schill S (2015b) Reforming investor-state dispute settlement (ISDS): conceptual framework and options for the way forward. E15 initiative
Schill S (2016) Sind Regelungen zur Investor-Staat-Streitbeilegung in EU-Freihandelsabkommen sinnvoll? Kölner Schrift zum Wirtschaftsrecht 7:115–121
Schreuer CH (2004) Travelling the BIT route: of waiting periods, umbrella. Clauses and forks in the road. J World Invest Trade 5:231–256
Schreuer CH (2015) Do we need investment arbitration? In: Kalicki JE, Joubin-Bret A (eds) Reshaping the investor-state dispute settlement system. Brill Nijhoff, Leiden, pp 879–889
Schreuer CH, Malintoppi L, Reinisch A, Sinclair A (2009) The ICSID Convention. A commentary, 2nd edn. Cambridge University Press, Cambridge
Sevilla CR (1998) Explaining patterns of GATT/WTO trade complaints. Working Paper 98-1
Shihata IF, Parra AR (1999) The experience of the international centre for settlement of investment disputes. ICSID Rev 14:299–361
Sinclair AC (2004) The origins of the umbrella clause in the international law of investment protection. Arbitr Int 20:411–434
Tan LY, Bouchenaki A (2015) Limiting investor access to investment arbitration. In: Kalicki JE, Joubin-Bret A (eds) Reshaping the investor-state dispute settlement system. Brill Nijhoff, Leiden, pp 250–309
Tudor I (2008) The fair and equitable treatment standard in the international law of foreign investment. Oxford University Press, Oxford
UNCTAD (2011) Interpretation of IIAs: what states can do, IIA Issues Note December No. 3
Van Damme I (2010) Treaty interpretation by the WTO appellate body. Eur J Int Law 21:605–648
Vandevelde KJ (2010) Bilateral investment treaties. Oxford University Press, New York
Waibel M (2007) Two worlds of necessity in ICSID arbitration: CMS and LG&E. Leiden J Int Law 20:637–648
Wälde TW (2005) The “Umbrella” clause on investment arbitration – a comment on original intentions and recent cases. J World Invest Trade 6:183–236
Wälde TW (2011) “Equality of arms” in investment arbitration: procedural challenges. Transnatl Dispute Manage 1
Weeramantry JR (2012) Treaty interpretation in investment arbitration. Oxford University Press, Oxford
Wuschka S (2016) Ein Investitionsgerichtshof – Der große Wurf der EU-Kommission? Zeitschrift für Europarechtliche Studien 19:153–176
Yannaca-Small K (2008) Fair and equitable treatment: recent developments. In: Reinisch A (ed) Standards of investment protection. Oxford University Press, Oxford, pp 111–130
Yen TH (2014) The interpretation of investment treaties. Brill Nijhoff, Leiden
Zuleta E (2015) The challenges of creating a standing international investment court. In: Kalicki JE, Joubin-Bret A (eds) Reshaping the investor-state dispute settlement system. Brill Nijhoff, Leiden, pp 403–423
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Bungenberg, M., Reinisch, A. (2018). Applicable Law. In: From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-01189-5_5
Download citation
DOI: https://doi.org/10.1007/978-3-030-01189-5_5
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-01188-8
Online ISBN: 978-3-030-01189-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)