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Investment Treaty Arbitration

Investment Treaty Arbitration Judging Under Uncertainty

Author: Andrés Rigo Sureda
Publisher: Cambridge University Press
ISBN: 9781107022515
Published In: April 2012
Format: Hardback , 166 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Investment claims have exposed the vague nature of the standards by which arbitral tribunals are expected to adjudicate them and the policy reasons which explicitly or implicitly have an influence. The ad hoc nature of the tribunals and the decisions reached on various controversial issues have brought to the fore the issue of consistency. Andrés Rigo Sureda's Hersch Lauterpacht Memorial Lecture examines how arbitral discretion is exercised in the face of uncertainty of the law. It explores the choices made by arbitral tribunals as they approach treaty interpretation, as they search for limits in determining jurisdiction and the content of the standards of protection and as they search for consistency in the exercise of arbitral discretion.

• Study of exercise of judicial discretion will be of interest to those concerned with judicial decision-making

• Search for limits at the jurisdictional and merits phases will appeal to those concerned with policy issues in investment treaty arbitration

• Search of consistency in an uncertain context will appeal to those who are concerned with contradictory decisions by arbitral tribunals

Foreword by Sir Elihu Lauterpacht	vii
Acknowledgements	viii
Table of cases	ix
Introduction	1
Part I: Discretion: the search for meaning
1 Uncertainty, judicial discretion and policy	7
2 Treaty interpretation	20
1. Clarity and common sense	24
2. Balance between purposes	26
3. Balance between purpose and text	27
4. Interpretation of silence: the MFN clause controversy	29
5. Interpretation of umbrella clauses	32
6. The weight of the non-disputing State party	36
Part II: The search for limits
Introduction	42
3 Form or substance: the nationality of corporate claimants	43
1. Direct and indirect control	45
2. Transfer of shares	46
3. Indirect control by nationals of the host State	50
4. Misrepresentation	53
4 Multiple approaches to define investment	56
1. The comprehensive approach	57
2. Form or substance	59
3. Elements of ‘investment’: description or jurisdiction	60
4. Contribution of investment to economic development	66
5 Legitimate expectations, risk and due diligence	76
1. Fair and equitable treatment	76
2. Full protection and security	86
3. Expectations and investor awareness of the BIT	92
Part III: The search for consistency
Introduction	98
6 Principles	99
7 Precedent	109
1. The weight of precedent	114
2. Precedent and values	124
3. The interpretation of precedent: ratio decidendi and obiter dicta	127
4. Towards a stronger doctrine of precedent?	130
8 Publicists	132
Conclusion	139
Bibliography	142
Index	147