The regime for international investment is extraordinary in public international law and controversial in many regions of the world. This article explores two aspects of this set of rules: its decentralization and the unusual powers it gives to private actors to invoke dispute settlement. Decentralization has contributed to a competitive environment for ratification of bilateral investment treaties (bit s) and has elevated the importance of dyadic bargaining power in the formation of the regime. Governments of developing countries are more likely to enter into bit s and tie their hands more tightly when they are in a weak bargaining position, which in turn is associated with economic downturns of the domestic economy. Once committed, investors have sued governments with surprising regularity, arguably contributing disproportionately to legal awards that favor the private corporate actors who have the power to convene the dispute settlement system. States have begun to push back, revising their obligations and attempting to annul arbitral awards. One of the conclusions is that it is important not only to consider whether bit s attract capital—which has been the focus of nearly all the empirical research on bit effects—but also to investigate the governance consequences of the international investment regime generally.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0043887113000312

Bargaining over BITs, Arbitrating Awards: The Regime for Protection and Promotion of International Investment

States entering into investment treaties establish dual roles for themselves as
treaty parties (with an interest in interpretation) and actual or potential respondents
in investor-state disputes (with an interest in avoiding liability). By viewing
states primarily as respondents rather than also as treaty parties, investment tribunals
often ignore the relevance and persuasiveness for interpretation of those
parties� subsequent agreements and practice. The approach proposed here seeks
to recalibrate interpretive power between states and tribunals by increasing consideration
of such evidence.

Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States

International human rights law and international humanitarian law are traditionally two distinct branches of law, one dealing with the protection of persons from abusive power, the other with the conduct of parties to an armed conflict. Yet, developments in international and national jurisprudence and practice have led to the recognition that these two bodies of law not only share a common humanist ideal of dignity and integrity but overlap substantially in practice. The most frequent examples are situations of occupation or non-international armed conflicts where human rights law complements the protection provided by humanitarian law.This article provides an overview of the historical developments that led to the increasing overlap between human rights law and humanitarian law. It then seeks to analyse the ways in which the interplay between human rights law and humanitarian law can work in practice. It argues that two main concepts inform their interaction: The first is complementarity between their norms in the sense that in most cases, especially for the protection of persons in the power of a party to the conflict, they mutually reinforce each other. The second is the principle of lex specialis in the cases of conflict between the norms.

The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict

Introduction Part I. Historical Evolution of Foreign Investment Protection Law: 1. Origins of international investment law 2. 'The dynamic of a politically oriented law': foreign investment protection in a changing political environment Part II. Contemporary Interaction: Foreign Investment, Imperialism and Environmental Protection: 3. Polarisation of positions 4. Hints at synergy Part III. Foreign Investment Law, Practices and Policy: Future Trends: 5. Transformation in international law: applying developments to foreign investment 6. Paths towards a reconceptualised international law on foreign investment 7. Conclusion: patterns of power in international investment law.

The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital

Investment treaties are some of the most controversial but least understood instruments of global economic governance. Public interest in international investment arbitration is growing and some developed and developing countries are beginning to revisit their investment treaty policies. The Political Economy of the Investment Treaty Regime synthesises and advances the growing literature on this subject by integrating legal, economic, and political perspectives. Based on an analysis of the substantive and procedural rights conferred by investment treaties, it asks four basic questions. What are the costs and benefits of investment treaties for investors, states, and other stakeholders? Why did developed and developing countries sign the treaties? Why should private arbitrators be allowed to review public regulations passed by states? And what is the relationship between the investment treaty regime and the broader regime complex that governs international investment? Through a concise, but comprehensive, analysis, this book fills in some of the many "blind spots" of academics from different disciplines, and is the first port of call for lawyers, investors, policy-makers, and stakeholders trying to make sense of these critical instruments governing investor-state relations.

The Political Economy of the Investment Treaty Regime

I. Of Practice and Principle The dramatic events in the recent case of Motorola Credit Corporation v. Uzan et al 1 demonstrate the global potency of provisional measures in modern international litigation. Following a multi-billion dollar default on its loans to a Turkish mobile telephone operator, Motorola brought a complaint of fraud against its Turkish partner’s owners to the Southern District of New York. It then pursued an application for a freezing injunction in support of the New York proceedings in England. Its coup de grâce was to seek enforcement of that order in Switzerland, a strategy which has now received the blessing of the Swiss Federal Supreme Court. The experience of this case could be multiplied many times from the law reports in both public and private international litigation. Very often the availability of provisional measures is of huge practical importance to the parties, and may be decisive of the outcome of the case. This is not only true of the large multi-jurisdictional commercial and fraud cases typified by the Motorola litigation. In international tribunals, too, the interim measures jurisdiction may overshadow the settlement of disputes on the merits, as the initial experience of the International Tribunal for the Law of the Sea demonstrates. It is doubtless true, as Jiménez de Aréchaga held in the Aegean Sea Continental Shelf case in the International Court of Justice, that the interim protection of rights is a general principle of law recognized by civilised nations:2

The Continuing Controversy over Provisional Measures in International Disputes

This is the foreword to the special issue of the Victoria University of Wellington Law Review presenting an edited collection of articles from leading voices in the field of public international law – scholars, judges and practitioners – that reflect on the different dimensions of the problem of change in international law. 

/pdf/foreword-the-dynamic-evolution-of-international-law-rise-or-g11u9lk6v6.pdf

Foreword: The Dynamic Evolution of International Law – Rise or Decline?

How does the international Rule of Law apply to constrain the conduct of the Executive within a constitutional State that adopts a dualist approach to the reception of international law? This paper argues that, so far from being inconsistent with the concept of the Rule of Law, the Executive within a dualist constitution has a self-enforcing obligation to abide by the obligations of the State under international law. This is not dependent on Parliament’s incorporation of treaty obligations into domestic law. It is the correlative consequence of the allocation to the Executive of the power to conduct foreign relations. The paper develops this argument in response to recent debate in the United Kingdom on whether Ministers have an obligation to comply with international law–a reference that the Government removed from the Ministerial Code. It shows that such an obligation is consistent with both four centuries of the practice of the British State and with principle.

The double-facing foreign relations function of the executive and its self-enforcing obligation to comply with international law

The function of rules on the enforcement of foreign state claims What kind of legal claims may a foreign state permissibly assert within Anglo-Commonwealth municipal legal systems? This is the essential question considered in Chapter 11. The answer to this question is of considerable practical importance, since it determines the extent to which a foreign state may resort to the courts of the forum in the enforcement of its rights against others. It is also significant for the light that it may shed on the larger question of the nature and limits on the external exercise of public power by states – a major theme of this work as a whole. The analysis starts from the basic uncontested proposition that a foreign state is not shut out, merely by the fact that it is a state, from seeking relief in the courts of Anglo-Commonwealth countries. On the contrary, as was seen in Chapter 10, one reason for the development of specific rules of municipal law in order to determine statehood has been precisely because foreign states have been, and are permitted to be, frequent plaintiffs in Anglo-Commonwealth courts. When in 1828 counsel for an agent for the King of Spain resisted the King’s claim for an account on the alleged ground that a foreign sovereign cannot sue in the English courts, the Lord Chancellor remonstrated: ‘Has not the sovereign power of another country the common privilege of mankind?’ Lord Redesdale held:
 This is one of the clearest cases that can possibly be stated. I conceive that there can be no doubt that a sovereign may sue. If he cannot, there is a right, without a remedy; for it is only by suit in Court that the Respondent can obtain this money: he sues as every sovereign must sue, generally speaking, either on his own behalf, or on behalf of his subjects. If the courts of justice were to refuse to receive his suit, I apprehend that it might be a just cause of war. All transactions on behalf of nations, must be transactions with the sovereign power of those nations . . .

The claimant state

The equality of the parties is a fundamental element of a fair system of adjudication. As such it is applicable to international investment arbitration. Yet the application of the equality principle in this context has given rise to much recent debate both at the procedural and at the constitutional level, as states and other stakeholders have considered the scope for reform of investment arbitration. This Report, commissioned for the 18th Commission of the Institut de Droit International, analyses the implications of the equality principle in its application both to the establishment and design of an international investment tribunal and to its procedures: the admissibility of claims and counterclaims; and admissibility or exclusion of evidence; the effect of the State's criminal law powers on the tribunal's process; costs and security for costs. The Report will be published in the Annuaire de l'Institut de Droit International and debated at its 79th Session in The Hague, August 2019.

Campbell McLachlan

Papers

The Continuing Controversy over Provisional Measures in International Disputes

Foreword: The Dynamic Evolution of International Law – Rise or Decline?

The double-facing foreign relations function of the executive and its self-enforcing obligation to comply with international law

The claimant state

Equality of Parties Before International Investment Tribunals