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General International Law in International Investment Law: A Commentary

General International Law in International Investment Law: A Commentary

Author: Andreas Kulick; Michael Waibel
Publisher: Oxford University Press
ISBN: 9780192849922
Published In: February 2024
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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General international law is part and parcel of investor-state arbitration. This is the case not only regarding treaty law and state responsibility, but also with respect to matters such as state succession, the international minimum standard, and state immunity, all of which feature regularly in investor-state arbitration. Yet, although general international law issues arise in almost every investment case and often require extensive research, no systematic exploration of the relationship between the two exists. This Commentary is the first to fill this gap, providing a comprehensive treatment of the role of general international law in international investment law. It engages in detail with central matters of general international law, including in the practice of investment arbitration tribunals, moving beyond existing works which focus solely on procedural and institutional provisions.

The Commentary's forty-six chapters do not focus on a single source or subject. Instead, each concentrates on a specific, relevant article from a particular source of public law - such as the Vienna Convention on the Law of Treaties (1969) or the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts (2001), among others. The entries combine detailed analysis with an examination of procedural and substantive aspects - such as nationality and unjust enrichment - and respond to the following questions: how have investment tribunals interpreted and applied the specific rule of general international law? To what extent and why does such interpretation and application align with or deviate from the practice by other international courts or tribunals? How could and should investment tribunals interpret and apply rules that have yet to feature in investment arbitration? This unique format means this commentary will serve as a central guide for all relevant case law and scholarship on international investment law.

Preface

Table of Contents

List of Contributors

Table of Cases

General international law in international investment law, Andreas Kulick and Michael Waibel

PART I: LAW OF TREATIES (VCLT)

1:Article 18 of the VCLT: Obligation not to defeat the object and purpose of a treaty prior to its entry into force, Belinda McRae

2:Articles 19-23 of the VCLT: Reservations (overview) - flexibility devices in applying treaties in the field of investment, Alain Pellet and Jean-Baptiste Merlin

3:Article 24 of the VCLT: Entry into force, Tania Voon

4:Article 25 of the VCLT: Provisional application, Tania Voon

5:Article 26 of the VCLT: Pacta sunt servanda, Can Yeginsu and Patrick Pearsall

6:Article 27 of the VCLT: Internal law and observance of treaties, Rumiana Yotova

7:Article 28 of the VCLT: Non-Retroactivity of Treaties, Ben Juratowitch KC and Jackie McArthur

8:Article 29 of the VCLT: Territorial scope, Emma Lindsay and Philippa Webb

9:Article 30 of the VCLT: Application of successive treaties relating to the same subject-matter, Sean Aughey

10:Article 31 of the VCLT: General rule of interpretation, Andreas Kulick and Panos Merkouris

11:Article 32 of the VCLT: Supplementary means of interpretation, Esmé Shirlow and Michael Waibel

12:Article 33 of the VCLT: Interpretation of treaties authenticated in two or more languages, Peter Tzeng

13:Parts IV and V of the VCLT: Amendment, invalidity, termination and suspension of investment treaties, Luke Sobota and Amelia Keene

14:Article 59 of the VCLT: Termination or suspension of the operation of a treaty implied by conclusion of a later treaty, Hélène Ruiz Fabri and Randi Ayman

15:Article 60 of the VCLT: Termination or suspension of the operation of a treaty as consequence of its breach, Hélène Ruiz Fabri and Randi Ayman

16:Article 62 of the VCLT: Fundamental change of circumstances, Makane Moïse Mbengue

PART II: RESPONSIBILITY OF STATES AND INTERNATIONAL ORGANIZATIONS

17:Article 4 of the ARSIWA: Conduct of organs of a State, Chester Brown

18:Article 5 of the ARSIWA: Conduct of empowered entities, Jorge Viñuales and Oliver Hailes

19:Article 6 of the ARSIWA and Article 7 of the ARIO, Jonathan Bonnitcha and Alisha Mathew

20:Article 7 of the ARSIWA: Excess of authority or contravention of instructions, Chester Brown

21:Article 8 of the ARSIWA: Attribution of conduct instructed, directed, or controlled by a State, Jorge Viñuales and Alina Papanastasiou

22:Article 13 of the ARSIWA: International obligation in force for a State, Claudia Annacker and Eniko Horváth

23:Article 14 of the ARSIWA: Extension in time of the breach of an international obligation, Claudia Annacker and Eniko Horváth

24:Article 15 of the ARSIWA: Breach consisting of a composite act, Claudia Annacker and Eniko Horváth

25:Article 20 of the ARSIWA: Consent, Federica Paddeu

26:Article 21 of the ARSIWA: Self-defence, Federica Paddeu

27:Article 23 of the ARSIWA: Force majeure, Federica Paddeu

28:Article 24 of the ARSIWA: Distress, Federica Paddeu

29:Article 25 of the ARSIWA: Necessity, Federica Paddeu and Michael Waibel

30:Article 26 of the ARSIWA: Compliance with peremptory norms, Federica Paddeu

31:Article 27 of the ARSIWA: Consequences of invoking a circumstance precluding wrongfulness, Federica Paddeu

32:Part Two, Ch. I and II of the ARSIWA: Remedies, Geraldo Vidigal and Stephanie Forrest

33:Articles 49-54 of the ARSIWA: Countermeasures, Martins Paparinskis

34:Article 55 of the ARSIWA: Lex specialis, Fernando Lusa Bordin

PART III: STATE SUCCESSION, SOURCES, AND STATE IMMUNITY

35:The procedure for succession to bilateral investment treaties, Arman Sarvarian

36:Succession in respect of cession, unification, and separation of States, James Devaney and Christian Tams

37:The protection of foreign investment in the law of state succession, Arman Sarvarian

38:Article 38 of the ICJ Statute: Sources, Patrick Dumberry

39:State Immunity in investment arbitration, August Reinisch

PART IV: SUBSTANTIVE AND PROCEDURAL ASPECTS OF GENERAL INTERNATIONAL LAW IN INTERNATIONAL INVESTMENT LAW

40:Cross-cutting substantive aspects: NAFTA standards in light of the decisions of international courts and tribunals, Jingyuan Zhou and Sergio Puig

41:Denial of justice, Jarrod Hepburn

42:The international law minimum standard of treatment, Rob Howse

43:Cross-cutting procedural powers of international courts and tribunals, Cameron Miles

44:Nationality, Chiara Giorgetti

45:Abuse of process, Régis Bismuth

46:Unjust enrichment, Kathleen Claussen

Index

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