In the course of a single investor-state dispute, an arbitrator may make numerous decisions, from interpreting the treaty or national laws to taking into account case law, customs and policies. In practice, this process raises important issues regarding the consistency of decisions and the predictability and legitimacy of the decision-making process in general. Investment arbitration tribunals have developed a specialised process of legal decision making adapted to the interpretational needs that arise in the context of an investor-state dispute and to the transnational characteristics of the investment arbitration framework. This is the first book to offer an in-depth analysis of the transnational characteristics of investment arbitration and to analyse the interpretive arguments of investment tribunals and the way they use treaties, precedent, policies, general principles of law and customary law in their decision-making process. Drawing on publicly available arbitral case law supplemented with personal interviews with investment arbitrators, the author touches on such concepts and practices as the following: - an overview of various decision-making genres of arbitral tribunals: attitudinal, economic, strategic and legal; - the legal argumentation triptych of language–rhetoric–dialogue; - the specific language arbitrators have developed when interpreting the law; - how arbitrators use the concepts 'standards', 'rules', 'principles' and 'rights'; - the importance of the legal reasoning of arbitral awards and the role of rhetoric therein; - concepts of 'acceptability', 'audience' and 'legitimacy'; - limitations of the public international law interpretive methodology enshrined in the Vienna Convention; - interpretation of precedents, customary law, general principles of law and policies; - the way national and international legal orders interact in the context of interpretation; and - how decision-making is connected to the issues of predictability, consistency and the rule of law. The core of the book proposes a novel, full- edged dialogical network theory for analysing the interpretation process. As an exemplary demonstration of developing theory to keep up with practice, this unique book provides a deeply engaged means for enhancing the practice of international arbitration. Its introduction of a new field of interdisciplinary analysis employing legal argumentation theories is sure to provide inestimable guidance for institutions and policymakers, especially in light of recent proposals for the creation of a permanent investment arbitration court. Given that unveiling the legal decision-making process is critical for the well-being of the whole dispute resolution procedure, and that being aware of how arbitrators interpret the law can constitute a roadmap for counsel's arguments and approaches when dealing with cross-border disputes, the topic of this book is relevant for both academics and practitioners, and its signifcance can only grow as recourse to investor-state arbitration continues to expand.

Investment treaties grant special international protection to foreign investors, and give them a means to enforce those rights against States in which they have invested. This book systematically examines the law of international investment treaties, particularly with respect to its origins, structure, content, and effects. Although the precise provisions of investment treaties are not uniform, virtually all investment treaties address the same issues. This book examines those issues in detail, including the scope of application, conditions for the entry of foreign investment, and general standards of treatment of foreign investments. Investment treaty law has continued to evolve rapidly and dramatically since publication of the second edition of this work in 2015. The field has seen considerable growth in the number and scope of investment treaties, now estimated at 3300, and investor-state arbitrations cases, which reached over 1000 in 2020. The field has also experienced significant changes and reforms. In 2018, eleven Pacific Basin Countries, despite the withdrawal of the United States, forged ahead to conclude the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTTP), a potentially far reaching regional trade and investment agreement. The next year, the three north American nations replaced the North American Free Trade Agreement (NAFTA) with the United States-Mexico-Canada Agreement (USMCA). And in 2020, European Union member states terminated over 100 intra-EU BITs, leaving intra-EU investors to rely on EU law and legal processes alone for protection from unfavourable government acts. This edition of The Law of Investment Treaties incorporates a consideration of all of these and other reforms into its analysis of the body of law created by investment treaties since World War II.

International courts and tribunals are often asked to review decisions originally made by domestic decision-makers. This can often be a source of tension, as the international courts and tribunals need to judge how far to defer to the original decisions of the national bodies. As international courts and tribunals have proliferated, different courts have applied differing levels of deference to those originial decisions, which can lead to a fragmentation in international law. International courts in such positions rely on two key doctrines: the standard of review and the margin of appreciation. The standard of review establishes the extent to which national decisions relating to factual, legal, or political issues arising in the case are re-examined in the international court. The margin of appreciation is the extent to which national legislative, executive, and judicial decision-makers are allowed to reflect diversity in their interpretation of human rights obligations. The book begins by providing an overview of the margin of appreciation and standard of review, recognising that while the margin of appreciation explicitly acknowledges the existence of such deference, the standard of review does not: it is rather a procedural mechanism. It looks in-depth at how the public policy exception has been assessed by the European Court of Justice and the WTO dispute settlement bodies. It examines how the European Court of Human Rights has taken an evidence-based approach towards the margin of appreciation, as well as how it has addressed issues of hate speech. The Inter-American system is also investigated, and it is established how far deference is possible within that legal organisation. Finally, the book studies how a range of other international courts, such as the International Criminal Court, and the Law of the Sea Tribunal, have approached these two core doctrines.

Nation states have long and successfully claimed to be the proper and sovereign forum for determining a country's international economic policies. Increasingly, however, supranational and non-governmental actors are moving to the front of the stage. New forms of multilateral and global policy-making have emerged, including states and national administrations, key international organizations, international conferences, multinational enterprises, and a wide range of transnational pressure groups and NGOs that all claim their share in exercising power and influence on international and domestic policy-making. In honour of Professor Mitsuo Matsushita's intellectual contributions to the field of international economic law, this volume reflects on the current state and the future of international economic law. The book addresses a broad spectrum of themes in contemporary international economic regulations and focuses specifically on the significant areas of Professor Matsushita's scholarship, including the rise of the soft-law mechanism in international economic regulation, the role of the WTO and dispute settlement, and specific areas such as competition, subsidies, anti-dumping, intellectual property, and natural resources. Part one of the volume provides a comprehensive and critical analysis of the rule-based international dispute settlement mechanisms; Part two investigates the normative influences to and from WTO law; and Part three focuses on policy and law-making issues.

The Vienna Convention on the Law of Treaties (VCLT) – as the ‘treaty on treaties’ – has achieved a rich and nuanced track record of use in international law. It has now been over fifty years since the VCLT was opened for signature in 1969, and over forty years since it entered into force in 1980. As of 2022, the VCLT has been ratified by 116 States and signed by 45 others, with some non-ratifying States also recognising parts as reflective of customary international law. In the intervening decades, the VCLT has had a profound influence on the interpretation, application and development of international investment law, including in the context of investment treaty arbitration. This book presents the first consolidated analysis of how the VCLT has informed the practice of international investment law and the resolution of investor-State disputes, and the role that the VCLT may play in shaping the future of this field. The diverse contributors to this book are scholars and practitioners from around the world, who offer a variety of perspectives on the nexus between the VCLT, international investment law and investor-State dispute settlement (ISDS). Each chapter demonstrates how approaches to key issues of treaty law in investment treaty arbitration diverge or converge from the VCLT and approaches of other international courts, as well as the lessons that investment treaty arbitration could derive – or even offer – for the interpretation and application of the VCLT rules in other settings. Their insights and analyses consider aspects such as the role of the VCLT for: interpretation of more specific approaches to treaty law drafted by treaty negotiators; treaty application in circumstances of contested State territory or succession challenges; temporal challenges arising in treaty interpretation; the status of bilateral investment treaties between European Union Member States and related termination endeavours; questions concerning the validity, termination and amendment of investment treaties, including as part of ongoing ISDS reform processes; current multilateral reform proposals, including the possibility of an appellate mechanism or a multilateral investment court; grappling with the challenge of fragmentation in international investment law, including the role of prior decisions in treaty interpretation, the challenges introduced by treaty conflict and the multitude of approaches that may be taken by national courts when implementing treaties like the New York Convention; and treaty interpretation and drafting as aided by emerging technologies, such as data analytics, machine learning, smart contracts and blockchain. The book’s appendix provides a highly valuable tabular summary of ISDS arbitral practice relating to the VCLT, collating key references from over 350 different procedural orders, decisions and awards. By revisiting the role that the VCLT has played in the development of this field of law, this invaluable book unlocks insights into how the VCLT might be used to support its ongoing development and the resolution of the next generation of investor-State disputes. This book is essential reading for a variety of stakeholders, including arbitrators, counsel, scholars and government officials, who will benefit from its in-depth and practical analysis of the VCLT’s relevance to and impact on investment law and investor-State arbitration and its role in shaping where this field of public international law might be headed in the decades to come.

The State’s Power to Tax in the Investment Arbitration of Energy Disputes Outer Limits and the Energy Charter Treaty Cornel Marian States today are expected not only to regulate the efficient and safe production and distribution of energy to end-users but also to incentivize increased production of energy and the transition to clean energy. In recent years, states are increasingly relying on taxation measures to address the economic challenges affecting the energy sector. This book provides the first in-depth exploration of the intersection between the treaty investment protection regime and taxation measures, as these materialize in investor-state energy disputes. With the analysis of all known and pending cases under the Energy Charter Treaty (ECT), as well as non-ECT cases and bilateral investment treaties which have heavily influenced ECT jurisprudence, the author develops a deeply informed energy tax policy that greatly mitigates the points of tension in the current regime. He closely investigates the following elements of the subject: aligning the ECT Taxation Article with the taxation articles of other investment treaties; tracing current case law to the original arbitration decisions involving tax measures; extrapolating the interplay of taxation provisions with substantive standards of investment protection as reviewed by international arbitral tribunals; evaluating the outer limits of the state’s power to tax under investment treaties and public international law; and addressing how the Yukos arbitration case has changed the framework of taxation issues in investment arbitration. In a clear and concise manner, the author provides the necessary framework to dissect any taxation chapter of an investment treaty and presents tools for the development of long-term tax policy and the adoption of model taxation clauses for sustainable investment protection mechanisms. The book takes a giant step toward meeting the ECT’s mandate to promote long-term cooperation in the energy field with a set of defined objectives focusing on trade, cooperation, energy efficiency, and environmental protection. It will be of immeasurable value to states in developing tax-specific investment incentive schemes as well as to investors in completing a necessary level of due diligence against possible adverse tax measures. Practitioners and academics with a focus on international arbitration will benefit from the book’s systematic approach to the complex taxation provisions of investment protection treaties and more readily recognize the “red flags” attached to national taxation provisions and their impact on investments in the energy sector.

The 2002 New Delhi Declaration of Principles of International Law relating to Sustainable Development set out seven principles on sustainable development, as agreed in treaties and soft-law instruments from before the 1992 Rio ‘Earth Summit’ UNCED, to the 2002 Johannesburg World Summit on Sustainable Development, to the 2012 Rio UNCSD. Recognition of the New Delhi principles is shaping the decisions of dispute settlement bodies with jurisdiction over many subjects: the environment, human rights, trade, investment, and crime, among others. This book explores the expanding international jurisprudence incorporating principles of international law on sustainable development. Through chapters by respected experts, the volume documents the application and interpretation of these principles, demonstrating how courts and tribunals are contributing to the world’s Sustainable Development Goals, by peacefully resolving disputes. It charts the evolution of these principles in international law from soft law standards towards recognition as customary law in certain instances, assessing key challenges to further judicial consideration of the principles, and discussing, for instance, how their relevance for compliance and disputes related to the 2015 Paris Agreement on climate change. The volume provides a unique contribution of great interest to law and policy-makers, judges, academics, students, civil society and practitioners concerned with sustainable development and the law, globally.

Sustainable development remains a high priority in international politics, as governments seek new methods of managing the consumption of resources while maintaining national economic growth. This timely book explores how the contours and facets of sustainability shape international laws and regulations that govern trade, investment and finance.'

In Reshaping the Investor-State Dispute Settlement System: Journeys for the 21st Century, editors Jean E. Kalicki and Anna Joubin-Bret offer for the first time a broad compendium of practical suggestions for reform of the current system of resolving international investment treaty disputes. The increase in cases against States and their challenge to public policy measures has generated a strong debate, usually framed by complaints about a perceived lack of legitimacy, consistency and predictability. While some ideas have been proposed for improvement, there has never before been a book systematically focusing on constructive paths forward. This volume features 38 chapters by almost 50 leading contributors, all offering concrete proposals to improve the ISDS system for the 21st century.

In this book, senior judges and academics at the forefront of transnational commercial law in Asia, Australia, Europe, the US, and elsewhere, reflect on the implications of anti-globalism and the COVID-19 pandemic on international commercial dispute resolution (ICDR). The chapters consider: (1) What types of cross-border commercial disputes will arise in the future and what resources will be needed to respond to them in a cost-effective, time-efficient, and equitable manner? (2) Is there still merit in a multilateral approach to transnational commercial law and ICDR, despite the closing of borders, the rise of protectionism, and the disruption of global supply chains? (3) What reforms and innovations should courts, arbitrators, and mediators contemplate when navigating the post-pandemic landscape? (4) Can the accelerated use of remote technology in ICDR (as prompted by the pandemic) be leveraged to enhance access to justice for all? With a focus on the current crisis in globalism, as well as the associated problems of ensuring justice and fairness in the resolution of cross-border commercial and investment-state disputes along the Belt-and-Road and elsewhere, the book will be an invaluable resource for academics, judges and practitioners alike.