Proportionality And Deference In Investor State Arbitration

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Proportionality and Deference in Investor-state Arbitration

Caroline Henckels
Proportionality and Deference in Investor state Arbitration Book PDF

Author : Caroline Henckels
Publisher : Unknown
Page : 128 pages
File Size : 54,9 Mb
Release : 2015
Category : International commercial arbitration
ISBN : 1316437981

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Proportionality and Deference in Investor-state Arbitration by Caroline Henckels Pdf

In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.

Proportionality, Reasonableness and Standards of Review in International Investment Law and Arbitration

Valentina Vadi
Proportionality Reasonableness and Standards of Review in International Investment Law and Arbitration Book PDF

Author : Valentina Vadi
Publisher : Edward Elgar Publishing
Page : 352 pages
File Size : 41,8 Mb
Release : 2018-04-27
Category : LAW
ISBN : 9781785368585

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Proportionality, Reasonableness and Standards of Review in International Investment Law and Arbitration by Valentina Vadi Pdf

International investment law is one of the most dynamic fields of international law, and yet it has been criticised for failing to strike a fair balance between private and public interests. In this valuable contribution to the current debate, Valentina Vadi examines the merits and pitfalls of arbitral tribunals’ use of the concepts of proportionality and reasonableness to review the compatibility of a state’s regulatory actions with its obligations under international investment law.

Proportionality and Deference in Investor-State Arbitration

Caroline Henckels
Proportionality and Deference in Investor State Arbitration Book PDF

Author : Caroline Henckels
Publisher : Cambridge University Press
Page : 265 pages
File Size : 50,8 Mb
Release : 2015-10-15
Category : Law
ISBN : 9781107087903

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Proportionality and Deference in Investor-State Arbitration by Caroline Henckels Pdf

Caroline Henckels examines how investment tribunals should balance competing state and investor interests in determining state liability in regulatory disputes.

Proportionality in Investor-State Arbitration

Gebhard B?cheler
Proportionality in Investor State Arbitration Book PDF

Author : Gebhard B?cheler
Publisher : OUP Oxford
Page : 369 pages
File Size : 43,5 Mb
Release : 2015-06-11
Category : Law
ISBN : 9780191036330

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Proportionality in Investor-State Arbitration by Gebhard B?cheler Pdf

While international investment law is one of the most dynamic and thriving fields of international law, it is increasingly criticized for failing to strike a fair balance between private property rights and the public interest. Proportionality is a tool to resolve conflicts between competing rights and interests. This book assesses its current role, its potential, and its limits in investor-State arbitration. Proportionality is often lauded for reconciling colliding interests. This book identifies three factors arbitrators should consider before engaging in a proportionality analysis: the rule of law, the risk of judicial law-making, and the availability of a value system that guides the proportionality analysis. Apart from making suggestions when arbitrators should apply proportionality and when not to, the book outlines what States can do to recalibrate the balance between private property rights and the public interest if they wish to do so without dismantling the current system of investor-State arbitration. Proportionality in Investor-State Arbitration considers whether and to what extent the notion of general principles of law within the meaning of Article 38(1)(c) of the ICJ Statute and the concept of systemic integration enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties provides a valid legal foundation for applying proportionality in investor-State arbitration.

Proportionality in Investor-State Arbitration

Gebhard Bücheler
Proportionality in Investor State Arbitration Book PDF

Author : Gebhard Bücheler
Publisher : Unknown
Page : 128 pages
File Size : 45,9 Mb
Release : 2015
Category : International commercial arbitration
ISBN : 0191792047

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Proportionality in Investor-State Arbitration by Gebhard Bücheler Pdf

While international investment law is one of the most dynamic and thriving fields of international law, it is increasingly criticised for failing to strike a fair balance between private property rights and the public interest. Proportionality is a tool to resolve conflicts between competing rights and interests. This book assesses its current role, its potential, and its limits in investor-state arbitration.

Judging at the Interface

Esmé Shirlow
Judging at the Interface Book PDF

Author : Esmé Shirlow
Publisher : Cambridge University Press
Page : 381 pages
File Size : 45,8 Mb
Release : 2021-02-18
Category : Law
ISBN : 9781108490979

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Judging at the Interface by Esmé Shirlow Pdf

This book investigates how international adjudicators defer to State decision-making authority, and what that reveals about the domestic-international interface.

Water Services Disputes in International Arbitration

Xu Qian
Water Services Disputes in International Arbitration Book PDF

Author : Xu Qian
Publisher : Kluwer Law International B.V.
Page : 396 pages
File Size : 54,7 Mb
Release : 2020-05-12
Category : Law
ISBN : 9789403522050

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Water Services Disputes in International Arbitration by Xu Qian Pdf

Water Services Disputes in International Arbitration Reconsidering the Nexus of Investment Protection, Environment, and Human Rights by Xu Qian The argument that universal access to water is a human right is based on the fact that life on Earth cannot exist without water. Yet the enormous cost of building and maintaining water service infrastructure, purifying, monitoring quality, and providing sanitation services is beyond the means of many of the States most in need. Foreign investment is thus mandated—hence the often acrimonious tension manifest in investor-State disputes over water rights. This book offers the first in-depth analysis of both international treaty norms and their interpretation by arbitral tribunals applicable to investment in water and sanitation services, complete with thoroughly researched recommendations for those arbitral practitioners in the eye of the storm. Like no previous study the book clearly reveals how to reconcile the economic and fundamental human interests arising from investment in water and sanitation services under the international investment regime. Among many vital issues, the author highlights the importance of the following: legitimacy of a State’s alleged regulatory objectives, the suitability of the measures undertaken to achieve the objective, and whether there are less restrictive means available; legal framework and stability of the State; applicable law, changes in law, and emergency circumstances; economic issues such as water pricing; profit-driven private companies’ reluctance to serve the poor; investment tribunals’ generation of a “regulatory and jurisprudential regime” on water and sanitation services; and determination of liability in relation to expropriation, fair and equitable treatment, and necessity. Arguing that the current investment treaty and arbitral case law framework can regulate water and sanitation services if certain interpretations are favored by adjudicators, the author offers viable, sustainable, and reasonable legal solutions. A detailed annex presents cases decided before a variety of arbitral tribunals, as well as relevant WTO and ICJ cases, and reviews critical literature in the field. The increasing number of cases involved with States’ regulatory measures shows that stakes around water services generate specific legal problems which are new in the world of international economic law. As an incisive investigation of what has been called the “incursion of investment tribunal decisions into the regulatory autonomy of host States,” this profound and innovative analysis provides a coherent and consistent method of review that provides greater certainty to both States and investors and deters abuse of power. It will be welcomed by policymakers and stakeholders interested in the implications of “globalization” of water services for the capacity to adapt to climate change and will suggest ways to enable States to better manage vital water services, even after privatization to foreign companies.

Contract Interpretation in Investment Treaty Arbitration

Yuliya Chernykh
Contract Interpretation in Investment Treaty Arbitration Book PDF

Author : Yuliya Chernykh
Publisher : BRILL
Page : 629 pages
File Size : 52,7 Mb
Release : 2022-01-17
Category : Law
ISBN : 9789004414709

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Contract Interpretation in Investment Treaty Arbitration by Yuliya Chernykh Pdf

Contracts are relevant, frequently central, for a significant number of investment disputes. Yet, the way tribunals ascertain their content remains largely underexplored. How do tribunals interpret contracts in investment treaty arbitration? How should they interpret contracts? Does national law have any role to play? Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue addresses these questions. The monograph offers a valuable insight into the practice and theory of contract interpretation in investment treaty arbitration. By proposing a theoretical frame for seamless integration of contract interpretation into the overall structure of decision-making, the book contributes to predictability, coherence, sufficiency and correctness of the tribunals’ interpretative practices in investment treaty arbitration.

Investor State Arbitration in a Changing World Order

Alexander W. Resar,Tai-Heng Cheng
Investor State Arbitration in a Changing World Order Book PDF

Author : Alexander W. Resar,Tai-Heng Cheng
Publisher : BRILL
Page : 95 pages
File Size : 47,7 Mb
Release : 2021-06-22
Category : Law
ISBN : 9789004390591

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Investor State Arbitration in a Changing World Order by Alexander W. Resar,Tai-Heng Cheng Pdf

Investor State Arbitration In A Changing World Order addresses challenges and reform proposals that dominate contemporary discussion of investor state arbitration. The authors argue that, although important for the institution’s development, current reforms are insufficient to guarantee investor state arbitration’s survival. Instead, if international investment arbitration is to survive and flourish, national governments must distribute more equally the benefits of international investment and trade.

The Right of States to Regulate in International Investment Law

Yulia Levashova
The Right of States to Regulate in International Investment Law Book PDF

Author : Yulia Levashova
Publisher : Kluwer Law International B.V.
Page : 278 pages
File Size : 51,6 Mb
Release : 2019-07-18
Category : Law
ISBN : 9789403510156

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The Right of States to Regulate in International Investment Law by Yulia Levashova Pdf

Due to the ongoing recent expansion of public interest issues worldwide, the state’s right to regulate has been recaptured as a prominent concept in international investment law. The fair and equitable treatment (FET) standard provision in the text of an international investment agreement (IIA) has become a detailed clause clarifying the specific obligations of a state towards an investor under the FET standard. However, striking the right balance between the interests of host states and investors in these new treaty formulations has proved to be challenging. This book greatly clarifies the field by offering the in-depth analysis of the application of the state’s right to regulate in relation to FET standard provisions in IIAs and to decisions by arbitral tribunals in FET cases. Recognising that the role of tribunals is to balance the state’s public interests and the interests of the investor when interpreting and applying the FET standard, the author pursues such seminal issues and topics as the following: the legitimacy of the objective of the state’s measure; obligations and responsibilities of investors towards a host state; the nature and impact of a change to a national regulatory framework; special economic and sociopolitical circumstances in a host state; and due diligence and risk assessment as a condition for the protection of an investor’s legitimate expectations. Multiple IIAs concluded by the OECD Member States, as well by Russia and China between the developing countries, and the prominent investment law cases on the FET standard are examined in detail. The analysis pays particular attention to how investment jurisprudence in FET cases has been reflected in such new IIAs as the Comprehensive Economic and Trade Agreement between the European Union (EU) and Canada (CETA), the EU-Vietnam FTA and the EU-Singapore FTA. These case studies demonstrate the evolution of the IIAs’ FET standard provisions and how they balance the application of the FET standard and the state’s right to regulate. Suggestions are provided for drafting formulations of the FET standard that can contribute to achieving such a balance. In the clear light it sheds on the legal conditions under which states may regulate in the public interest and its contribution to the reforms that are currently taking place in the field of international investment law, this book constitutes an exemplary framework to evaluate investment decisions on the FET standard and the right to regulate. It is sure to prove extremely useful for practitioners who work on investment cases, policymakers involved in negotiating and drafting of IIAs, policy advisors of governmental and non-governmental organisations and academics in international investment law.

International Investment Law

Tarcisio Gazzini,Eric De Brabandere
International Investment Law Book PDF

Author : Tarcisio Gazzini,Eric De Brabandere
Publisher : Martinus Nijhoff Publishers
Page : 363 pages
File Size : 53,5 Mb
Release : 2012-08-22
Category : Law
ISBN : 9789004214538

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International Investment Law by Tarcisio Gazzini,Eric De Brabandere Pdf

Transnational investment involves a variety of actors (States, public and private legal entities, and natural persons) whose relationships are governed by rules and legal instruments belonging to different legal systems. This book provides a systematic study of the sources of rights and obligations in the field of transnational investment, and their coordination and interaction. It focuses primarily on the network of over 3,000 Bilateral Investment Treaties, international investment contracts, customary international law, the main multilateral treaties, national legislation, international case law and general principles of law. The book, firmly based on State practice, arbitral awards and national decisions, is indispensable to fully appraise the nature and content of the claims of private investors as well as to identify the law applicable in investment arbitration.

Balancing the Protection of Foreign Investors and States Responses in the Post-Pandemic World

Yulia Levashova,Pascale Accaoui Lorfing
Balancing the Protection of Foreign Investors and States Responses in the Post Pandemic World Book PDF

Author : Yulia Levashova,Pascale Accaoui Lorfing
Publisher : Kluwer Law International B.V.
Page : 356 pages
File Size : 47,5 Mb
Release : 2022-05-11
Category : Law
ISBN : 9789403533711

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Balancing the Protection of Foreign Investors and States Responses in the Post-Pandemic World by Yulia Levashova,Pascale Accaoui Lorfing Pdf

The COVID-19 pandemic has brought the debate on reform of the international investment agreement regime to the fore with renewed force. In this important and timely book, top professionals in the field collectively offer an in-depth investigation of the measures that States have taken, or failed to take, to deal with the pandemic’s consequences and whether these actions or inactions can be construed as investment arbitration risks. In an extensive overview of the impact of COVID-19 on States and investors – including perspectives from UNCTAD, the European Union, the United States, Russia, India, South Korea and the African Union – this comprehensive guide on State defences and investor protection mechanisms tackles such aspects of the debate as the following as affected by the pandemic: treatment of investors in times of pandemic and in the post-pandemic world; sufficient contribution to the economic development of the host State; disparities in bargaining power; and use of ‘pandemic power’ to accord preferential treatment. The final part of the book is dedicated to analysing case studies from around the world in the context of the pandemic and investor-State disputes. Understanding the way public health emergencies can shape international investment law is key to building a sustainable, stable investment environment. As the first detailed study of the post-pandemic development of investment law, this matchless collection takes a giant step toward reconciling the interests of foreign investors and sovereign States at various stages of economic development. With practical recommendations for both States and investors, it will be of immeasurable assistance to practitioners, policymakers, and academics in anticipating and dealing not only with COVID-related measures but also with similar future contingencies.

Megaregulation Contested

Benedict Kingsbury
Megaregulation Contested Book PDF

Author : Benedict Kingsbury
Publisher : Oxford University Press, USA
Page : 753 pages
File Size : 40,5 Mb
Release : 2019-06-11
Category : Electronic
ISBN : 9780198825296

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Megaregulation Contested by Benedict Kingsbury Pdf

The Japan-led Trans-Pacific Partnership (CPTPPA) of 2018 is the most far-reaching 'megaregional' economic agreement in force, with several major countries beyond its eleven negotiating countries also interested. Still bearing the stamp of the original US involvement before the Trump-era reversal, TPP is the first instance of 'megaregulation': a demanding combination of inter-state economic ordering and national regulatory governance on a highly ambitious substantive and trans-regional scale. Its text and ambition have influenced other negotiations ranging from the Japan-EU Agreement (JEEPA) and the US-Mexico-Canada Agreement (USMCA) to the projected Pan-Asian Regional Comprehensive Economic Partnership (RCEP). This book provides an extensive analysis of TPP as a megaregulatory project for channelling and managing new pressures of globalization, and of core critical arguments made against economic megaregulation from standpoints of development, inequality, labour rights, environmental interests, corporate capture, and elite governance. Specialized chapters cover supply chains, digital economy, trade facilitation, intellectual property, currency levels, competition and state-owned enterprises, government procurement, investment, prescriptions for national regulation, and the TPP institutions. Country studies include detailed analyses of TPP-related politics and approaches in Japan, Mexico, Brazil, China, India, Indonesia, and Thailand. Contributors include leading practitioners and scholars in law, economics, and political science. At a time when the WTO and other global-scale institutions are struggling with economic nationalism and geopolitics, and bilateral and regional agreements are pressed by public disagreement and incompatibility with digital and capital and value chain flows, the megaregional ambition of TPP is increasingly important as a precedent requiring the close scrutiny this book presents.

International Investment Law and Comparative Public Law

Stephan W. Schill
International Investment Law and Comparative Public Law Book PDF

Author : Stephan W. Schill
Publisher : Oxford University Press
Page : 922 pages
File Size : 44,7 Mb
Release : 2010-10-14
Category : Law
ISBN : 9780199589104

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International Investment Law and Comparative Public Law by Stephan W. Schill Pdf

International investment law is one of fastest-growing areas of international law, but it is plagued by the vagueness of many investors' rights and unpredictable investment tribunal decisions. This books analyses international investment law through the lens of comparative public law to clarify investment treaty obligations and arbitral procedure.

Investor – State Arbitration and Human Rights

Filip Balcerzak
Investor State Arbitration and Human Rights Book PDF

Author : Filip Balcerzak
Publisher : BRILL
Page : 331 pages
File Size : 44,8 Mb
Release : 2017-08-14
Category : Law
ISBN : 9789004339002

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Investor – State Arbitration and Human Rights by Filip Balcerzak Pdf

In Investor – state arbitration and human rights Filip Balcerzak examines the interrelations between human rights and international investment law. He discusses the place of human rights arguments in the course of arbitral proceedings based on investment treaties.