international investment law essay

• Search Menu
• Browse content in Arts and Humanities
• Browse content in Archaeology
• Anglo-Saxon and Medieval Archaeology
• Archaeological Methodology and Techniques
• Archaeology by Region
• Archaeology of Religion
• Archaeology of Trade and Exchange
• Biblical Archaeology
• Contemporary and Public Archaeology
• Environmental Archaeology
• Historical Archaeology
• History and Theory of Archaeology
• Industrial Archaeology
• Landscape Archaeology
• Mortuary Archaeology
• Prehistoric Archaeology
• Underwater Archaeology
• Urban Archaeology
• Zooarchaeology
• Browse content in Architecture
• Architectural Structure and Design
• History of Architecture
• Residential and Domestic Buildings
• Theory of Architecture
• Browse content in Art
• Art Subjects and Themes
• History of Art
• Industrial and Commercial Art
• Theory of Art
• Biographical Studies
• Byzantine Studies
• Browse content in Classical Studies
• Classical History
• Classical Philosophy
• Classical Mythology
• Classical Literature
• Classical Reception
• Classical Art and Architecture
• Classical Oratory and Rhetoric
• Greek and Roman Epigraphy
• Greek and Roman Law
• Greek and Roman Archaeology
• Greek and Roman Papyrology
• Late Antiquity
• Religion in the Ancient World
• Digital Humanities
• Browse content in History
• Colonialism and Imperialism
• Diplomatic History
• Environmental History
• Genealogy, Heraldry, Names, and Honours
• Genocide and Ethnic Cleansing
• Historical Geography
• History by Period
• History of Agriculture
• History of Education
• History of Emotions
• History of Gender and Sexuality
• Industrial History
• Intellectual History
• International History
• Labour History
• Legal and Constitutional History
• Local and Family History
• Maritime History
• Military History
• National Liberation and Post-Colonialism
• Oral History
• Political History
• Public History
• Regional and National History
• Revolutions and Rebellions
• Slavery and Abolition of Slavery
• Social and Cultural History
• Theory, Methods, and Historiography
• Urban History
• World History
• Browse content in Language Teaching and Learning
• Language Learning (Specific Skills)
• Language Teaching Theory and Methods
• Browse content in Linguistics
• Applied Linguistics
• Cognitive Linguistics
• Computational Linguistics
• Forensic Linguistics
• Grammar, Syntax and Morphology
• Historical and Diachronic Linguistics
• History of English
• Language Acquisition
• Language Variation
• Language Families
• Language Evolution
• Language Reference
• Lexicography
• Linguistic Theories
• Linguistic Typology
• Linguistic Anthropology
• Phonetics and Phonology
• Psycholinguistics
• Sociolinguistics
• Translation and Interpretation
• Writing Systems
• Browse content in Literature
• Bibliography
• Children's Literature Studies
• Literary Studies (Asian)
• Literary Studies (European)
• Literary Studies (Eco-criticism)
• Literary Studies (Modernism)
• Literary Studies (Romanticism)
• Literary Studies (American)
• Literary Studies - World
• Literary Studies (1500 to 1800)
• Literary Studies (19th Century)
• Literary Studies (20th Century onwards)
• Literary Studies (African American Literature)
• Literary Studies (British and Irish)
• Literary Studies (Early and Medieval)
• Literary Studies (Fiction, Novelists, and Prose Writers)
• Literary Studies (Gender Studies)
• Literary Studies (Graphic Novels)
• Literary Studies (History of the Book)
• Literary Studies (Plays and Playwrights)
• Literary Studies (Poetry and Poets)
• Literary Studies (Postcolonial Literature)
• Literary Studies (Queer Studies)
• Literary Studies (Science Fiction)
• Literary Studies (Travel Literature)
• Literary Studies (War Literature)
• Literary Studies (Women's Writing)
• Literary Theory and Cultural Studies
• Mythology and Folklore
• Shakespeare Studies and Criticism
• Browse content in Media Studies
• Browse content in Music
• Applied Music
• Dance and Music
• Ethics in Music
• Ethnomusicology
• Gender and Sexuality in Music
• Medicine and Music
• Music Cultures
• Music and Religion
• Music and Culture
• Music and Media
• Music Education and Pedagogy
• Music Theory and Analysis
• Musical Scores, Lyrics, and Libretti
• Musical Structures, Styles, and Techniques
• Musicology and Music History
• Performance Practice and Studies
• Race and Ethnicity in Music
• Sound Studies
• Browse content in Performing Arts
• Browse content in Philosophy
• Aesthetics and Philosophy of Art
• Epistemology
• Feminist Philosophy
• History of Western Philosophy
• Metaphysics
• Moral Philosophy
• Non-Western Philosophy
• Philosophy of Science
• Philosophy of Action
• Philosophy of Law
• Philosophy of Religion
• Philosophy of Language
• Philosophy of Mind
• Philosophy of Perception
• Philosophy of Mathematics and Logic
• Practical Ethics
• Social and Political Philosophy
• Browse content in Religion
• Biblical Studies
• Christianity
• East Asian Religions
• History of Religion
• Judaism and Jewish Studies
• Qumran Studies
• Religion and Education
• Religion and Health
• Religion and Politics
• Religion and Science
• Religion and Law
• Religion and Art, Literature, and Music
• Religious Studies
• Browse content in Society and Culture
• Cookery, Food, and Drink
• Cultural Studies
• Customs and Traditions
• Ethical Issues and Debates
• Hobbies, Games, Arts and Crafts
• Lifestyle, Home, and Garden
• Natural world, Country Life, and Pets
• Popular Beliefs and Controversial Knowledge
• Sports and Outdoor Recreation
• Technology and Society
• Travel and Holiday
• Visual Culture
• Browse content in Law
• Arbitration
• Browse content in Company and Commercial Law
• Commercial Law
• Company Law
• Browse content in Comparative Law
• Systems of Law
• Competition Law
• Browse content in Constitutional and Administrative Law
• Government Powers
• Judicial Review
• Local Government Law
• Military and Defence Law
• Parliamentary and Legislative Practice
• Construction Law
• Contract Law
• Browse content in Criminal Law
• Criminal Procedure
• Criminal Evidence Law
• Sentencing and Punishment
• Employment and Labour Law
• Environment and Energy Law
• Browse content in Financial Law
• Banking Law
• Insolvency Law
• History of Law
• Human Rights and Immigration
• Intellectual Property Law
• Browse content in International Law
• Private International Law and Conflict of Laws
• Public International Law
• IT and Communications Law
• Jurisprudence and Philosophy of Law
• Law and Politics
• Law and Society
• Browse content in Legal System and Practice
• Courts and Procedure
• Legal Skills and Practice
• Primary Sources of Law
• Regulation of Legal Profession
• Medical and Healthcare Law
• Browse content in Policing
• Criminal Investigation and Detection
• Police and Security Services
• Police Procedure and Law
• Police Regional Planning
• Browse content in Property Law
• Personal Property Law
• Study and Revision
• Terrorism and National Security Law
• Browse content in Trusts Law
• Wills and Probate or Succession
• Browse content in Medicine and Health
• Browse content in Allied Health Professions
• Arts Therapies
• Clinical Science
• Dietetics and Nutrition
• Occupational Therapy
• Operating Department Practice
• Physiotherapy
• Radiography
• Speech and Language Therapy
• Browse content in Anaesthetics
• General Anaesthesia
• Neuroanaesthesia
• Browse content in Clinical Medicine
• Acute Medicine
• Cardiovascular Medicine
• Clinical Genetics
• Clinical Pharmacology and Therapeutics
• Dermatology
• Endocrinology and Diabetes
• Gastroenterology
• Genito-urinary Medicine
• Geriatric Medicine
• Infectious Diseases
• Medical Oncology
• Medical Toxicology
• Pain Medicine
• Palliative Medicine
• Rehabilitation Medicine
• Respiratory Medicine and Pulmonology
• Rheumatology
• Sleep Medicine
• Sports and Exercise Medicine
• Clinical Neuroscience
• Community Medical Services
• Critical Care
• Emergency Medicine
• Forensic Medicine
• Haematology
• History of Medicine
• Browse content in Medical Dentistry
• Oral and Maxillofacial Surgery
• Paediatric Dentistry
• Restorative Dentistry and Orthodontics
• Surgical Dentistry
• Medical Ethics
• Browse content in Medical Skills
• Clinical Skills
• Communication Skills
• Nursing Skills
• Surgical Skills
• Medical Statistics and Methodology
• Browse content in Neurology
• Clinical Neurophysiology
• Neuropathology
• Nursing Studies
• Browse content in Obstetrics and Gynaecology
• Gynaecology
• Occupational Medicine
• Ophthalmology
• Otolaryngology (ENT)
• Browse content in Paediatrics
• Neonatology
• Browse content in Pathology
• Chemical Pathology
• Clinical Cytogenetics and Molecular Genetics
• Histopathology
• Medical Microbiology and Virology
• Patient Education and Information
• Browse content in Pharmacology
• Psychopharmacology
• Browse content in Popular Health
• Caring for Others
• Complementary and Alternative Medicine
• Self-help and Personal Development
• Browse content in Preclinical Medicine
• Cell Biology
• Molecular Biology and Genetics
• Reproduction, Growth and Development
• Primary Care
• Professional Development in Medicine
• Browse content in Psychiatry
• Addiction Medicine
• Child and Adolescent Psychiatry
• Forensic Psychiatry
• Learning Disabilities
• Old Age Psychiatry
• Psychotherapy
• Browse content in Public Health and Epidemiology
• Epidemiology
• Public Health
• Browse content in Radiology
• Clinical Radiology
• Interventional Radiology
• Nuclear Medicine
• Radiation Oncology
• Reproductive Medicine
• Browse content in Surgery
• Cardiothoracic Surgery
• Gastro-intestinal and Colorectal Surgery
• General Surgery
• Neurosurgery
• Paediatric Surgery
• Peri-operative Care
• Plastic and Reconstructive Surgery
• Surgical Oncology
• Transplant Surgery
• Trauma and Orthopaedic Surgery
• Vascular Surgery
• Browse content in Science and Mathematics
• Browse content in Biological Sciences
• Aquatic Biology
• Biochemistry
• Bioinformatics and Computational Biology
• Developmental Biology
• Ecology and Conservation
• Evolutionary Biology
• Genetics and Genomics
• Microbiology
• Molecular and Cell Biology
• Natural History
• Plant Sciences and Forestry
• Research Methods in Life Sciences
• Structural Biology
• Systems Biology
• Zoology and Animal Sciences
• Browse content in Chemistry
• Analytical Chemistry
• Computational Chemistry
• Crystallography
• Environmental Chemistry
• Industrial Chemistry
• Inorganic Chemistry
• Materials Chemistry
• Medicinal Chemistry
• Mineralogy and Gems
• Organic Chemistry
• Physical Chemistry
• Polymer Chemistry
• Study and Communication Skills in Chemistry
• Theoretical Chemistry
• Browse content in Computer Science
• Artificial Intelligence
• Computer Architecture and Logic Design
• Game Studies
• Human-Computer Interaction
• Mathematical Theory of Computation
• Programming Languages
• Software Engineering
• Systems Analysis and Design
• Virtual Reality
• Browse content in Computing
• Business Applications
• Computer Security
• Computer Games
• Computer Networking and Communications
• Digital Lifestyle
• Graphical and Digital Media Applications
• Operating Systems
• Browse content in Earth Sciences and Geography
• Atmospheric Sciences
• Environmental Geography
• Geology and the Lithosphere
• Maps and Map-making
• Meteorology and Climatology
• Oceanography and Hydrology
• Palaeontology
• Physical Geography and Topography
• Regional Geography
• Soil Science
• Urban Geography
• Browse content in Engineering and Technology
• Agriculture and Farming
• Biological Engineering
• Civil Engineering, Surveying, and Building
• Electronics and Communications Engineering
• Energy Technology
• Engineering (General)
• Environmental Science, Engineering, and Technology
• History of Engineering and Technology
• Mechanical Engineering and Materials
• Technology of Industrial Chemistry
• Transport Technology and Trades
• Browse content in Environmental Science
• Applied Ecology (Environmental Science)
• Conservation of the Environment (Environmental Science)
• Environmental Sustainability
• Environmentalist Thought and Ideology (Environmental Science)
• Management of Land and Natural Resources (Environmental Science)
• Natural Disasters (Environmental Science)
• Nuclear Issues (Environmental Science)
• Pollution and Threats to the Environment (Environmental Science)
• Social Impact of Environmental Issues (Environmental Science)
• History of Science and Technology
• Browse content in Materials Science
• Ceramics and Glasses
• Composite Materials
• Metals, Alloying, and Corrosion
• Nanotechnology
• Browse content in Mathematics
• Applied Mathematics
• Biomathematics and Statistics
• History of Mathematics
• Mathematical Education
• Mathematical Finance
• Mathematical Analysis
• Numerical and Computational Mathematics
• Probability and Statistics
• Pure Mathematics
• Browse content in Neuroscience
• Cognition and Behavioural Neuroscience
• Development of the Nervous System
• Disorders of the Nervous System
• History of Neuroscience
• Invertebrate Neurobiology
• Molecular and Cellular Systems
• Neuroendocrinology and Autonomic Nervous System
• Neuroscientific Techniques
• Sensory and Motor Systems
• Browse content in Physics
• Astronomy and Astrophysics
• Atomic, Molecular, and Optical Physics
• Biological and Medical Physics
• Classical Mechanics
• Computational Physics
• Condensed Matter Physics
• Electromagnetism, Optics, and Acoustics
• History of Physics
• Mathematical and Statistical Physics
• Measurement Science
• Nuclear Physics
• Particles and Fields
• Plasma Physics
• Quantum Physics
• Relativity and Gravitation
• Semiconductor and Mesoscopic Physics
• Browse content in Psychology
• Affective Sciences
• Clinical Psychology
• Cognitive Neuroscience
• Cognitive Psychology
• Criminal and Forensic Psychology
• Developmental Psychology
• Educational Psychology
• Evolutionary Psychology
• Health Psychology
• History and Systems in Psychology
• Music Psychology
• Neuropsychology
• Organizational Psychology
• Psychological Assessment and Testing
• Psychology of Human-Technology Interaction
• Psychology Professional Development and Training
• Research Methods in Psychology
• Social Psychology
• Browse content in Social Sciences
• Browse content in Anthropology
• Anthropology of Religion
• Human Evolution
• Medical Anthropology
• Physical Anthropology
• Regional Anthropology
• Social and Cultural Anthropology
• Theory and Practice of Anthropology
• Browse content in Business and Management
• Business Strategy
• Business History
• Business Ethics
• Business and Government
• Business and Technology
• Business and the Environment
• Comparative Management
• Corporate Governance
• Corporate Social Responsibility
• Entrepreneurship
• Health Management
• Human Resource Management
• Industrial and Employment Relations
• Industry Studies
• Information and Communication Technologies
• International Business
• Knowledge Management
• Management and Management Techniques
• Operations Management
• Organizational Theory and Behaviour
• Pensions and Pension Management
• Public and Nonprofit Management
• Strategic Management
• Supply Chain Management
• Browse content in Criminology and Criminal Justice
• Criminal Justice
• Criminology
• Forms of Crime
• International and Comparative Criminology
• Youth Violence and Juvenile Justice
• Development Studies
• Browse content in Economics
• Agricultural, Environmental, and Natural Resource Economics
• Asian Economics
• Behavioural Finance
• Behavioural Economics and Neuroeconomics
• Econometrics and Mathematical Economics
• Economic Systems
• Economic Methodology
• Economic History
• Economic Development and Growth
• Financial Markets
• Financial Institutions and Services
• General Economics and Teaching
• Health, Education, and Welfare
• History of Economic Thought
• International Economics
• Labour and Demographic Economics
• Law and Economics
• Macroeconomics and Monetary Economics
• Microeconomics
• Public Economics
• Urban, Rural, and Regional Economics
• Welfare Economics
• Browse content in Education
• Adult Education and Continuous Learning
• Care and Counselling of Students
• Early Childhood and Elementary Education
• Educational Equipment and Technology
• Educational Strategies and Policy
• Higher and Further Education
• Organization and Management of Education
• Philosophy and Theory of Education
• Schools Studies
• Secondary Education
• Teaching of a Specific Subject
• Teaching of Specific Groups and Special Educational Needs
• Teaching Skills and Techniques
• Browse content in Environment
• Applied Ecology (Social Science)
• Climate Change
• Conservation of the Environment (Social Science)
• Environmentalist Thought and Ideology (Social Science)
• Natural Disasters (Environment)
• Social Impact of Environmental Issues (Social Science)
• Browse content in Human Geography
• Cultural Geography
• Economic Geography
• Political Geography
• Browse content in Interdisciplinary Studies
• Communication Studies
• Museums, Libraries, and Information Sciences
• Browse content in Politics
• African Politics
• Asian Politics
• Chinese Politics
• Comparative Politics
• Conflict Politics
• Elections and Electoral Studies
• Environmental Politics
• European Union
• Foreign Policy
• Gender and Politics
• Human Rights and Politics
• Indian Politics
• International Relations
• International Organization (Politics)
• International Political Economy
• Irish Politics
• Latin American Politics
• Middle Eastern Politics
• Political Methodology
• Political Communication
• Political Philosophy
• Political Sociology
• Political Theory
• Political Behaviour
• Political Economy
• Political Institutions
• Politics and Law
• Public Administration
• Public Policy
• Quantitative Political Methodology
• Regional Political Studies
• Russian Politics
• Security Studies
• State and Local Government
• UK Politics
• US Politics
• Browse content in Regional and Area Studies
• African Studies
• Asian Studies
• East Asian Studies
• Japanese Studies
• Latin American Studies
• Middle Eastern Studies
• Native American Studies
• Scottish Studies
• Browse content in Research and Information
• Research Methods
• Browse content in Social Work
• Addictions and Substance Misuse
• Adoption and Fostering
• Care of the Elderly
• Child and Adolescent Social Work
• Couple and Family Social Work
• Developmental and Physical Disabilities Social Work
• Direct Practice and Clinical Social Work
• Emergency Services
• Human Behaviour and the Social Environment
• International and Global Issues in Social Work
• Mental and Behavioural Health
• Social Justice and Human Rights
• Social Policy and Advocacy
• Social Work and Crime and Justice
• Social Work Macro Practice
• Social Work Practice Settings
• Social Work Research and Evidence-based Practice
• Welfare and Benefit Systems
• Browse content in Sociology
• Childhood Studies
• Community Development
• Comparative and Historical Sociology
• Economic Sociology
• Gender and Sexuality
• Gerontology and Ageing
• Health, Illness, and Medicine
• Marriage and the Family
• Migration Studies
• Occupations, Professions, and Work
• Organizations
• Population and Demography
• Race and Ethnicity
• Social Theory
• Social Movements and Social Change
• Social Research and Statistics
• Social Stratification, Inequality, and Mobility
• Sociology of Religion
• Sociology of Education
• Sport and Leisure
• Urban and Rural Studies
• Browse content in Warfare and Defence
• Defence Strategy, Planning, and Research
• Land Forces and Warfare
• Military Administration
• Military Life and Institutions
• Naval Forces and Warfare
• Other Warfare and Defence Issues
• Peace Studies and Conflict Resolution
• Weapons and Equipment

International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer

• Cite Icon Cite
• Permissions Icon Permissions

International investment law has become increasingly prominent in the international legal order, spurred on by the explosion of Bilateral Investment Treaties between States and a sharp rise in international investment disputes. This rise to prominence has, however, not always been matched by academic reflection on the content of procedure of international investment law and its role within general international law. This book seeks to remedy this situation by providing careful analysis of every area of international investment law and its relationship with other legal fields. It is written in honour of one of the leading experts in the field of investment arbitration, Christoph Schreuer. The book explores specific and topical problems of international investment law and practice in a focused way. It also provides a forum for broader theoretical reflections on international investment law and its relation to general international law. The book includes chapters on jurisdictional questions, issues of procedure in investment proceedings, the relationship between investment arbitration and other forms of investment protection, problems of substantive investment law, regional aspects, interfaces between investment law and other areas of law, as well as the future of the law of investment protection.

Signed in as

Institutional accounts.

• Google Scholar Indexing
• GoogleCrawler [DO NOT DELETE]

Personal account

• Sign in with email/username & password
• Get email alerts
• Save searches
• Purchase content
• Activate your purchase/trial code

Institutional access

• Sign in with a library card Sign in with username/password Recommend to your librarian
• Institutional account management
• Get help with access

Access to content on Oxford Academic is often provided through institutional subscriptions and purchases. If you are a member of an institution with an active account, you may be able to access content in one of the following ways:

IP based access

Typically, access is provided across an institutional network to a range of IP addresses. This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account.

Sign in through your institution

Choose this option to get remote access when outside your institution. Shibboleth/Open Athens technology is used to provide single sign-on between your institution’s website and Oxford Academic.

• Click Sign in through your institution.
• Select your institution from the list provided, which will take you to your institution's website to sign in.
• When on the institution site, please use the credentials provided by your institution. Do not use an Oxford Academic personal account.
• Following successful sign in, you will be returned to Oxford Academic.

If your institution is not listed or you cannot sign in to your institution’s website, please contact your librarian or administrator.

Sign in with a library card

Enter your library card number to sign in. If you cannot sign in, please contact your librarian.

Society Members

Society member access to a journal is achieved in one of the following ways:

Sign in through society site

Many societies offer single sign-on between the society website and Oxford Academic. If you see ‘Sign in through society site’ in the sign in pane within a journal:

• Click Sign in through society site.
• When on the society site, please use the credentials provided by that society. Do not use an Oxford Academic personal account.

If you do not have a society account or have forgotten your username or password, please contact your society.

Sign in using a personal account

Some societies use Oxford Academic personal accounts to provide access to their members. See below.

A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions.

Some societies use Oxford Academic personal accounts to provide access to their members.

Viewing your signed in accounts

Click the account icon in the top right to:

• View your signed in personal account and access account management features.
• View the institutional accounts that are providing access.

Signed in but can't access content

Oxford Academic is home to a wide variety of products. The institutional subscription may not cover the content that you are trying to access. If you believe you should have access to that content, please contact your librarian.

For librarians and administrators, your personal account also provides access to institutional account management. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more.

Our books are available by subscription or purchase to libraries and institutions.

• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Rights and permissions
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

• Personal Profile
• See all online law products
• Subscriber Services
• Guided Tour

• Case reports
• International court decisions
• Domestic court decisions
• European court cases
• Arbitral cases
• Commentary and analysis
• Book content
• Encyclopedia entries
• International instruments and materials
• Supporting instruments
• Institutional rules
• Resolutions
• Declarations
• Air law and law of outer space
• Diplomacy and consular relations
• European Union
• History of international law
• Human rights
• Individuals and non-state actors
• International co-operation
• International criminal law
• International economic law
• International environmental law
• International humanitarian law
• International law and international relations
• International organizations
• International procedural law
• International responsibility
• Law of the sea
• Law of treaties
• Relationship between international and domestic law
• Settlement of disputes
• Sources, foundations and principles of international law
• Statehood, jurisdiction of states, organs of states
• Theory of international law
• Use of force, war, peace and neutrality
• Geographic Regions
• Organizations/Institutions
• American Organizations/Institutions
• African Organizations/Institutions
• Asian Organizations/Institutions
• European Organizations/Institutions
• International Organizations/Institutions
• Middle Eastern Organizations/Institutions
• Pacific Rim Organizations/Institutions

Recently viewed (0)

• Save Search

• Find at OUP.com

International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer

Edited by christina binder, ursula kriebaum, august reinisch, stephan wittich, bibliographic information, affiliations are at time of print publication..

Christina Binder, editor

Ursula Kriebaum, editor

August Reinisch, editor

Stephan Wittich, editor

• Share This Facebook LinkedIn Twitter
• SUMMARY CONTENTS
• LIST OF CONTRIBUTORS
• TABLE OF CASES
• CONVENTIONS, TREATIES, AND AGREEMENTS (GENERAL)
• MODEL AGREEMENTS
• CONCLUDED AGREEMENTS
• Czechoslovakia
• Netherlands
• Switzerland
• EUROPEAN SECONDARY LEGISLATION
• 1 CHRISTOPH SCHREUER: AN APPRECIATION
• 2 A TRIBUTE TO CHRISTOPH SCHREUER
• A Introduction
• B A Brief Reference to the Concept, Origin, and Purpose of MFN Clauses
• The MFN clause as a way to avoid BITs’ procedural requirements prior to resorting to arbitration: the Maffezini path
• Application of the MFN clause to expand subject-matter jurisdiction or allow the investor to appear before a different forum to that provided in the BIT
• Consent to arbitration as one of the key issues at stake
• The Most Favoured Nation standard
• Interpretation of MFN clauses
• The starting point
• Treatment of investments
• Treatment of investors
• Procedural rights v substantive rights
• Previous awards
• D Concluding Remarks
• B Territoriality Requirement in Investment Protection Treaties
• C Bayview v Mexico
• D The Canadian Cattlemen Claim
• Transfer of funds
• Activities of the investor
• F Relevance of the Territoriality Requirement in Investment Arbitration
• Contract-based consent
• Consolidation
• Disputes involving multiple claimants or respondents
• Institutional rule-based consent
• Post-dispute consent
• De facto consolidation
• Efficient administration of justice
• Coordinating related arbitrations to avoid inconsistent or contradictory results
• Arbitrator selection
• Protecting sensitive and confidential business information
• D Conclusion
• A The Venture
• The wording of the law
• The ordinary meaning
• The special meaning
• C Admissibility
• D The Requirement of a Prima Facie Case
• E Finally: When is an Objection of Inadmissibility Admissible?
• A Generic Treaty Dispute Settlement Clauses
• B Competence to Determine Contractual Claims
• Decisions against contractual jurisdiction for treaty-based tribunals
• Decisions in favour of contractual jurisdiction for treaty-based tribunals
• D Conclusions
• Are courts different?
• What may courts do wrong?
• Introduction
• Domestic tests
• International law
• Independent international test
• Identity of the parties
• Cause of action
• Free choice
• Favor arbitri
• Considerations
• Exhaustion of local remedies
• BIT standards
• F Conclusions
• The ICSID requirements
• UNCITRAL Rules
• Statute of the ICJ
• IBA Guidelines
• English law
• United States law
• European Convention on Human Rights
• B Relationship between an Arbitrator and a Party
• C Relationship between an Arbitrator and a Counsel
• D Issue and Subject Matter Conflict
• E Conclusion
• B The Power of an Arbitral Tribunal to Recommend or Order Provisional Measures under Article 47 of the ICSID Convention and ICSID Arbitration Rule 39
• C The Pre-requisites of Provisional Measures in ICSID Proceedings: Necessity, Urgency, and Irreparable Harm
• Non-aggravation of the dispute
• Non-frustration of the Award
• The procedural integrity of the arbitration process
• Obtaining evidence: discovery and production of documents
• Financial guarantees: bonds and pre-judgment securities
• Parallel domestic proceedings: injunctions against actions before local courts and arbitrations
• F Implementation of Provisional Measures and Failure to Comply
• G Conclusions
• General considerations
• Common law origin in domestic courts
• Introductory remarks
• Inherent or implied powers?
• On international courts and tribunals
• Orders staying proceedings
• Revision of awards
• Interim orders
• Proprio motu
• Reinstatement of claims
• D Some Concluding Remarks
• B The Three Generations
• CDC Group v Seychelles
• Mitchell v Congo
• Repsol v Empresa Estatal Petróleos del Ecuador (Petroecuador)
• MTD Equity v Chile
• Soufraki v United Arab Emirates
• Industria Nacional de Alimentos, SA (Lucchetti) et al v Peru
• CMS v Argentina
• A Introduction: Four Generations of Annulment Proceedings
• Annulment under the ICSID Convention: key concepts
• Revision of non-ICSID investment arbitration awards: comparative remarks
• Invocation of the annulment grounds in practice
• The issue of partial annulment
• C The Use of Precedent in ICSID Arbitration
• Annulment and quality of awards
• Annulment and consistency of awards
• ICSID Appeals Body
• Preliminary rulings
• Scrutiny of draft awards
• F Concluding Remarks
• Denunciation
• The function of Article 72
• Consent given by both parties to the dispute
• Consent by contract
• Consent by unilateral instrument
• Consent by national legislation
• Consent by treaty
• Obligations arising out of the State's consent
• Consent given only by the national of the denouncing State?
• Absence of consent by the denouncing State or its national
• D The Limits of the Contract Analogy
• E Conclusions
• B Foundation
• Clarification
• The meaning of ‘consent’
• Consent given by ‘one of them’: Whom?
• Rule permutation 1 (clarifying)
• Version 1.1 (list)
• Version 1.1.1 (bilateral)
• Version 1.1.2 (assumed unilateral)
• Version 1.2 (consenting)
• Version 1.2.1 (assumed unilateral)
• Version 1.2.2 (unilateral exception)
• Rule permutation 2 (abrogation)
• Version 2.1 (list)
• Version 2.1.1 (bilateral)
• Version 2.1.2 (assumed unilateral)
• Version 2.2 (consenting)
• Version 2.2.1 (assumed unilateral)
• Version 2.2.2 (unilateral exception)
• Vienna Convention on the Law of Treaties
• History of the ICSID Convention
• Textual ideals
• Investor protection and State sovereignty
• F Projection
• A Execution of Awards under the ICSID Convention
• B Enforcement of Awards under the New York Convention
• Argentina's response to ICSID claims arising from the financial crisis
• The Sedelmayer saga
• The Foreign Sovereign Immunities Act, the New York Convention, and the US Constitution
• B Text of the Convention
• C Negotiating History and Commentary
• E Consequences of an Alternative Interpretation
• F Conclusion
• A The Need for Diplomatic Protection
• B The Exhaustion of Local Remedies
• The nationality of corporations in international law
• The Barcelona Traction case
• The Diallo case
• D Substantive Standards in Customary Law
• E Concluding Remarks
• Barcelona Traction
• ILC draft Articles on diplomatic protection
• Decisions under other investment treaties
• C Conclusion
• The Financial Agreement
• The Civil Law Agreement
• C The 1921 Provisional Treaty
• D The 1922 Rapallo Treaties
• E The 1922 Genoa Conference
• F Early German-Soviet Concessions
• H The Junkers Concession
• I The Mologales Concession
• J 1923 Arbitration Agreement
• K 1923–1927
• L 1927 Arbitration Agreement
• M Post-Mortem
• N Conclusion
• The intuitive method
• The deductive method
• A fourth factor: the concept of contribution to the economic development of the host State?
• A fifth factor: the concept of positive and significant contribution to the economic development of the host State?
• The functions of the local remedies rule
• Is the local remedies rule a ‘substantive’ or a ‘procedural’ requirement?
• Denial of justice and the requirement to exhaust local remedies
• The waiver of the local remedies rule in Article 26 of the ICSID Convention
• Tribunals mentioning the requirement to resort to local remedies in the context of jurisdiction
• Generation Ukraine
• Waste Management
• Contracts—fair and equitable treatment and resort to local remedies
• Contracts—expropriation and resort to local remedies
• Forks in the road and resort to local remedies
• Resort to local remedies for finalizing an expropriation
• ICSID as an alternative dispute settlement mechanism endangered
• E Summary and Conclusions
• A Vivendi v Argentina
• Lauder v Czech Republic and CME v Czech Republic
• SGS v Philippines
• Waste Management v Mexico (No. 2)
• EnCana v Ecuador
• Parkerings-Compagniet v Lithuania
• Helnan v Egypt
• Conclusions
• Gami v Mexico
• Saluka v Poland
• Parkerings-Companiet v Lithuania
• D Umbrella Clauses
• A Umbrella Clauses
• B Unilateral Undertakings
• C The Practice of Tribunals
• B Exchange Restrictions
• C A Short History of Capital Account Convertibility
• D Transfer of Funds Provisions in Early Bilateral Treaties
• E Balance of Payment Safeguards in Multilateral Treaties
• F Transfer of Funds Clauses in BITs
• G Conclusion: The Silent Liberalization of the Capital Account
• 27 THE UNITED STATES 2004 MODEL BILATERAL INVESTMENT TREATY AND DENIAL OF JUSTICE IN INTERNATIONAL LAW
• Canada's signature of the Convention
• The early years
• Experience under the NAFTA
• Going forward: The ‘NAFTA-Plus’ Model
• Transparency and access
• Conditions precedent to dispute settlement: ‘gate-keeping’ provisions
• National treatment clause
• Right of establishment
• Free movement of capital
• Umbrella clause
• Fair and equitable treatment
• Expropriation
• C The Conflict of Obligations Stemming from the EU Legal Order and BITs in the Light of the Eastern Sugar BV v Czech Republic Award
• A European clause?
• A European investment court?
• B Bilateral Investment Treaties (BITs) versus Regional Trade Agreements (RTAs) with Investment Provisions
• Establishment of the Andean Pact (1969)
• Withdrawal of Chile (1976)
• Further evolution of the Andean Pact
• Establishment of the Andean Community (1997)
• Withdrawal of Venezuela (2006)
• Chile as an associate member (2006)
• Compatibility of the Sub-regional Andean Pact/Andean Community with the Latin American Free Trade Association (LAFTA) and its conformity with GATT
• The Latin American Free Trade Association (LAFTA) (1960)—a Regional Framework Agreement for the Sub-regional Andean Pact (1969)
• Strategy change in the Andean Pact with regard to the treatment of foreign investments
• The Cartagena Agreement (1969)
• The Cartagena Agreement as amended in 1997
• The Cartagena Agreement as amended in 2003
• Decision 24 (1970)
• Amendments to Decision 24
• Decision 220 (1987)
• Decision 291 (1991)
• The Andean Court of Justice—Proceso 158-IP-2006
• The Andean Development Corporation (ADC)/Corporación Andina de Fomento (CAF)
• Andean multinational enterprises as instruments of the regional industrialization programme model
• Andean Multinational Enterprises (AMEs)/Empresas Multinacionales Andinas (EMAs)
• Dual taxation
• The deregulation of services
• F Possible Reforms of the Current Regimes Governing Foreign Investments in the Andean Community
• G Final Considerations
• B The Meaning of Provisional Application
• The restricted application of the treaty
• The creation by unilateral acts
• Domestic law and provisional application
• D The Reasons for Provisional Application
• The effect of Article 45(1)
• The effect of Article 45(2)
• The relation between the two regimes
• The ipso jure effect of Article 45(1)
• The legal effect of declarations made under Article 45(1) and (2) ECT
• There is no need for declarations to be made under Article 45(1) ECT
• Relevant international standards
• ‘Interpretation/conflation approach’ (CMS, Enron, and Sempra cases)
• ‘Legitimization approach’ (LG&E case)
• ‘Separation/two-step approach’ (CMS decision on annulment, BG v Argentina)
• Generalities on Article 31(3.c) Vienna Convention on the Law of Treaties (VCLT)
• Article 31(3.c) VCLT in the Argentine cases
• Generalities on the lex specialis principle
• Application of the lex specialis principle to the Argentine cases
• Generalities on the relationship between primary and secondary rules, the law of treaties, and the law of State responsibility
• Do treaty-based emergency exceptions per se have any implications for the applicability of the necessity defence under customary international law?
• The different tribunals’ decisions in the light of these findings
• B The Objective Review of the Economic Emergency Security Defence in BITs
• C Approaches to Interpreting the Economic Emergency Provision in BITs
• D The Processes Involved in the Interpretation of the Economic Emergency Security Defence in BITs
• Bilateral investment treaties (BITs)
• Universal level
• Regional level
• General considerations—The ECHR and ICSID compared
• Protection of foreign property—the case law
• The principles derived from Article 1 P-1
• The main factual configurations under Article 1 P-1
• Compensation
• Enforcement/execution
• D Concluding Observations
• Interpretation of Article 1 of Protocol No. 1
• Enumeration of possessions which were found to be protected
• Legitimate expectations
• Social security claims
• Other cases
• De facto expropriations
• Restitution of property confiscated by communist regimes without compensation
• Insufficient or delayed indemnities for expropriations
• Excessively high fines or fees
• E On the Way towards a European Supreme Administrative Court in Charge of Fighting Arbitrariness
• External rules and discrete treaty terms
• Presumption of compliance with international law
• Interpretation or modification of treaties?
• ‘any […] rules of international law’
• (i) Customary international law and general principles
• (ii) Treaties
• D Linking International Human Rights Law and International Investment Law through External Rules
• A Investment Law and International Responsibility
• B CME v Czech Republic
• D Joint and Several Liability and Causation
• E Aid or Assistance
• F Plurality of Responsible States
• G Conclusions: Joint Tortfeasors and Investment Law
• A Introduction: Between International Arbitration, Classic International Law, and under the Increasing Shadow of the Vienna Rules
• B Pro-State and Pro-investor Approaches, the Dictionary versus Policy Approach, and the Fiction of the Competent but Mysterious Treaty Drafter
• C The Vienna Rules of Treaty Interpretation: A Single Order but with Different Styles
• D Special Interpretative Challenges Rooted in the Nature of Investment Treaties
• Article 31 general rule of interpretation
• Article 31(1): ‘ordinary meaning’
• Article 31(1) and (2): ‘context’
• Article 31(1): ‘object and purpose’
• Article 31(3)(a) and (b): subsequent interpretative agreements and practice
• Article 31(3)(c): Regressive restraint or progressive evolution through international law?
• Article 32: supplementary means
• The linguistic dimension: different languages and Esperanto
• The legal dimension: national laws and uniform law
• Investment arbitration and commercial arbitration
• General principles as sources of the lex mercatoria
• Public international law as source of the lex mercatoria?
• Does national law violate public international law?
• False friends
• Towards an acceptance of the supposed interchangeability?
• Commercial arbitration
• Investment arbitration
• Centralized administration of justice
• Transparency in commercial rules
• False friends recognized
• B The Acquis of 1899: International Dispute Settlement at the Time of the Hague Peace Conferences
• C Discontinuity in the Institutions of International Dispute Settlement
• D Continuity in the Institutions of International Dispute Settlement
• A A Pioneer of International Investment Law
• B The Past Decades: Winds of Change in Shifting Directions
• C International Law and the Genesis of ICSID: Searching for a Global Consensus at a Time of Global Policy Disarray
• D International Law Predominant in Negotiations on the ICSID Convention
• E Recent Investment Disputes outside ICSID: From Private Law to Public Law
• F ICSID Jurisprudence: International Law as the Framework
• G The Applicability of International Law Independent of ICSID
• H Recalling the Foundations: The Protection of a Foreign Investor by International Law
• I Contemporary Developments: The New Global Concern for the Protection of Foreign Investment
• J Conclusion
• B The Weight of Precedents
• C Precedent and Values
• D Doctrine and Precedent
• A The Res Judicata of an Arbitral Award: Recognition and Enforcement of ‘The Thing Adjudicated’ in an Individual Case
• B Precedent in the ICSID System
• Background: Argentina's economic reforms and ‘emergencies’
• The CMS Award and progeny: a split in the arbisprudence
• The CMS annulment proceedings and decision
• B Compliance with International Law
• Repeated (or ‘one-shot’) games
• Retaliatory measures
• Information
• Discount factor
• D The Liberal Approach and Compliance with Investment Treaties
• E The Constructivist Approach and Compliance with Investment Treaties
• A Human Rights Require Multilevel Constitutional Protection of International Division of Labour
• B Rule of International Law Must be Protected in Conformity with Multilevel Human Rights
• C Multilevel Economic Constitutionalism can Complement Multilevel Human Rights Law
• D Investor-State Arbitration Should Respect National and International Human Rights: Justice in Robes?
• E Need for a Constitutional Theory of Adjudication in International Economic Law
• F Constitutional Justice Requires more Inclusive ‘Public Reason’
• The availability of investment arbitration
• The enforceability of investment arbitration awards
• The indirect advantages of investment arbitration for host States
• The danger of poorly reasoned awards and decisions
• The danger of inconsistent awards and decisions
• Quality assurance
• An appellate mechanism for investment arbitration
• Preliminary references on investment issues
• Consolidation or similar pragmatic solutions
• Mechanisms to avoid re-litigation—a more liberal use of res judicata and lis pendens
• The self-regulatory power of arbitration—de facto precedent
• BIBLIOGRAPHY
• [66.249.64.20|185.80.149.115]
• 185.80.149.115

Advertisement

The myth of a multilateral framework in international investment law

• Published: 01 March 2017
• Volume 56 , pages 427–461, ( 2016 )

Cite this article

• Aniruddha Rajput 1 , 2  

470 Accesses

2 Citations

Explore all metrics

In past, various attempts at creating a multilateral treaty for the protection of foreign investment have failed. Yet, scholars have tried to fill in the void through theoretical arguments to the effect that even in the absence of a multilateral treaty, the bilateral investment treaties create a multilateral normative framework. This framework imposes external disciplines on States. These theoretical arguments do not find any basis in the treaty text and result into expanding the scope of standards of treatment provided in the bilateral investment treaties (BITs). The first part establishes that States are not ready for a multilateral treaty on investor protection and the reasons for this position based on past experiences. The theoretical arguments used as a substitute for a multilateral treaty have various aspects. It is claimed that the BITs have created a framework which is uniform due to a large number of BITs and consistency in their language. BITs allow corporate restructuring and contain Most Favoured Nation (MFN) clause, which allows any foreign investors to choose the most beneficial BIT to file a claim and most beneficial provision from the all the BITs entered into by the host state. This process is said to have resulted into multilateralization – another form of a multilateral framework. These arguments do violence to the treaty language and stretch the treaty text beyond its purview. The extravagant interpretations proposed by scholars and adopted by tribunals have forced the regime of investment arbitration into an uncertain future.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Price includes VAT (Russian Federation)

Instant access to the full article PDF.

Rent this article via DeepDyve

Institutional subscriptions

Similar content being viewed by others

The Future of International Investment Regulation: Towards a World Investment Organisation?

Nicolette Butler & Surya Subedi

In Defense of International Investment Law

India and Bilateral Investment Treaties: From Rejection to Embracement to Hesitance?

United Nations Conference on Trade and Development (UNCTAD), World Investment Report 2015 - Reforming International Investment Governance (UN Publication, Geneva, 2015) 106.

See generally, Stephan W Schill, Multilateralization of International Investment Law (CUP, Cambridge, 2009).

W Michael Reisman and Robert D Sloane, Indirect Expropriation and its Valuation in the BIT Generation, 74 British Yrbk Intl L (2003) 115.

Christoph Schreuer and Ursula Kriebaum, From Individual to Community Interest in International Investment Law, in, Ulrich Fastenrath & others, From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (OUP, Oxford, 2011) 14.

Efraim Chalamish, The Future of Bilateral Investment Treaties: A De Facto Multilateral Agreement?, 34 Brooklyn J Intl L (2008–09) 303; Rafael Leal-Arcas, The Multilateralization of International Investment Law, 35 North Carolina J Intl & Comp Regulation (2009–10) 33; See, Rafael Leal-Arcas, International Trade and Investment Law: Multilateral, Regional and Bilateral Governance (Edward Elgar, 2010); Andreas Kulick, Global Public Interest in International Investment Law (CUP, Cambridge, 2012).

The United States Trade Department describes the Trans Pacific Partnership as: ‘TPP’s chapter on Investment strengthens the rule of law in the Asia-Pacific region, deters foreign governments from imposing discriminatory or abusive requirements on American investors, and protects the right to regulate in the public interest. To this end, it ensures that American investors have effective remedies in the event of a breach of their rights, while reforming the investor-state dispute settlement (ISDS) system by providing for tools to dismiss frivolous claims and instituting a range of other procedural and substantive safeguards.’ The details of the TPP are available at < https://medium.com/the-trans-pacific-partnership/investment-c76dbd892f3a#.i10tnlcie > (last visited 18 April 2016).

C Brower & S Blanchard, What's in a Meme? The Truth about Investor- State Arbitration: Why It Need Not, and Must Not, Be Repossessed by States, 52 Columbia J Transnatl L (2014) 689, 696–7. According to Brower and Blanchard: ‘The investment protections and investor-State dispute settlement provisions in those treaties-the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership-therefore have the potential to immediately impact global governance of relations between foreign investors and host States as well as to influence future treaty negotiators.’ The political at the moment does not show bright prospects for the TPP.

See, AK Kuhn, The International Conference on the Treatment of Foreigners, 24 American J Intl L (1930) 570.

Gus Van Harten, Investment Treaty Arbitration and Public Law (OUP, Oxford, 2007) 19.

EM Borchard, ‘Responsibility of States’, at the Hague Codification Conference, 24 American J Intl L (1930) 517, 530.

The Havana Charter for the International Trade Organization, 1947, (‘Havana Charter’) Article 12 (1) (c), < http://www.wto.org/english/docs_e/legal_e/havana_e.pdf >.

Schill, supra note 2, 33.

Havana Charter, supra note 12, Article 12 (2).

Ivan Trofimov, The Failure of the International Trade Organization (ITO): A Policy Entrepreneurship Perspective, 1 J L & Pol (2012) 56, 63–65; Van Harten, supra note 10, 19–20.

Richard Toye, Developing Multilateralism: The Havana Charter and the Fight for the International Trade Organization, 1947–1948, 25 Intl History Rev (2003) 282, 301.

Ibid, 287–88.

See, Dattu, A Journey from Havana to Paris, 24 Fordham Intl L J (2000) 275, 288.

United States Model Bilateral Investment Treaty, 2012 < https://ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf >.

George Schwarzenberger, The Abs-Shawcross Draft Convention on Investments Abroad: A Critical Commentary, 9 J Public L (1960) 147.

See, G Schwarzenberger, Foreign Investments and International Law (Stevens, London, 1969) 109–34.

Van Harten, supra note 10, at 21.

Permanent Sovereignty over Natural Resources, Adopted by the UNGA on 14 December 1962 at its Seventeenth session, UN Doc A/5217, [1], [6].

Charter of Economic Rights and Duties of States, Adopted by the UNGA on 12 December 1974 at its Twenty-ninth session, UN Doc A/RES/29/3281, Article 2(2)(c).

Schill, supra note 2, at 38–39.

Rudolph Dolzer and Margarete Stevens, Bilateral Investment Treaties (M Nijhoff, Leiden, 1995) 2.

W Michael Reisman, The Future of International Investment Law and Arbitration, in, Antonio Cassese (ed) Realizing Utopia: The Future of International Law (OUP, Oxford, 2012) 285.

Canner, The Multilateral Agreement on Investment, 31 Cornell Intl L J (1998) 657, 666; Jürgen Kurtz, A General Investment Agreement in the WTO? 23 Univ Pennsylvania J Intl Econ L (2002) 713, 714.

Peter Muchlinski, The Rise and Fall of Multilateral Agreement on Investment: Where Now?, 34 Intl Lawyer (1999–2000) 1033, 1046–8.

Kurtz, supra note 29, at 758.

Muchlinski, supra note 30, at 1041–3.

Jürgen Kurtz, NGOs, the Internet and International Economic Policy Making: The Failure of the OECD Multilateral Agreement on Investment, 3 Melbourne J Intl L (2002) 213, 231–7.

Vattenfall sues Germany over Phase-out Policy, World Nuclear News (16 October 2014) < http://www.world-nuclear-news.org/C-Vattenfall-sues-Germany-over-phase-out-policy-16101401.html >.

Office of the United States Trade Representative, Engagement with The Trans-Pacific Partnership To Increase Exports, Support Jobs (2011) < https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2011/february/engagement-trans-pacific-partnership-increase-export >.

Reisman and Sloane, supra note 3, at 116–8.

K Vandevelde, Bilateral Investment Treaties: History, Policy, and Interpretation (OUP, New York, 2010) 108–12.

Ibid, 115, 144.

For example, Preamble, Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Panama for the Promotion and Protection of Investments, 7 October 1983, 1461 UNTS 141 (Registered by United Kingdom on 28 April 1987); UNCTAD, Scope and Definition: UNCTAD Series on Issues in International Investment Agreements II (UN Publication, Geneva, 2011) 120.

Reisman and Sloane, supra note 3, 115, 117.

Ibid, 117–8.

Thomas Waelde & Abba Kolo, Environmental Regulation, Investment Protection and ‘Regulatory Taking’ in International Law, 50 Intl &Comp L Q (2001) 811, 822–3.

M Sornarajah, India, China and Foreign Investment, in, M Sornarajah & Jiangyu Wang China, India and the International Economic Order (CUP, Cambridge, 2010) 136–9.

Atlantic Charter, 14 August 1941 < http://avalon.law.yale.edu/wwii/atlantic.asp >; Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, Adopted by the UNGA on 24 October 1970 at its Twenty-fifth session, UN Doc A/RES/25/2625; Declaration on the Inadmissibility of Intervention and Interference in the Domestic Affairs of States, Adopted by the on 9 December 1981 at its Thirty-sixth session, UN Doc A/RES/36/103.

See, M Sornarajah, Sovereign Wealth Funds and International Investment Law, 1 Asian J Intl L (2011) 267; See generally, Albert Badia, Piercing the Veil of State Enterprises in International Arbitration (Kluwer Law International, Alphen aan den Rijn, 2014).

Dolzer & Stevens, supra note 26, at 10–3; Kenneth Vandevelde, A Brief History of International Investment Agreements, 12 UC–Davis J Intl L & Pol’y (2005) 157, 162–6; Wolfgang Alschner, Americanization of the BIT Universe: The Influence of Friendship, Commerce and Navigation (FCN) Treaties on Modern Investment Treaty Law, 5 Goetting J Intl L (2013) 455, 463–8.

Treaty for Peace, Friendship, Commerce and Navigation between Bolivia and the USA, 13 May 1858, Article XIII, < http://avalon.law.yale.edu/19th_century/bolivia01.asp >.

Treaty of Friendship, Commerce and Navigation between Paraguay and the USA (1959), Article IX, para 3.

Ian Brownlie, Principles of Public International Law , 7 th edn (OUP, Oxford, 2008) 731–32.

Michael Waibel, Sovereign Defaults Before International Courts and Tribunals (CUP, Cambridge, 2011) 29–38.

Brownlie, supra note 51, at 732–3.

Waelde and Kolo, supra note 44, at 811–2.

Ibid, 819, 820.

Reisman and Sloane, supra note 3, at 116; Waelde and Kolo, supra note 44, at 811, 822.

Reisman & Sloane, supra note 3, at 118–9, 128–30.

Pope & Talbot Inc v The Government of Canada , UNCITRAL, Interim Award (26 June 2000) [92]; Medioambientales Tecmed SA v The United Mexican States , ICSID Case No ARB(AF)/00/2, Award, (29 May 2003) [114]; SD Myers, Inc v Government of Canada, UNCITRAL, Partial Award (13 November 2000) [286].

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase), Advisory Opinion of 18 July 1950, [1950] ICJ Rep 221, 229.

United Mexican States v Metalclad Corporation , 2001 BCSC 664 (Canada) 16–18 [66–80].

Marvin Feldman v Mexico , ICSID Case No ARB(AF)/99/1, Award, (16 December 2002) [113, 133].

Glaims Gold Ltd v United States of America , NAFTA Chapter 11 Tribunal (UNCITRAL), Award, (8 June 2009) [3].

WM Reisman, “Case Specific Mandates” versus “Systematic Implications”: How Should Investment Tribunals Decide?: The Freshfields Arbitration Lecture, 29 Arb Intl (2013) 131, 142.

Oscar Schachter, International Law in Theory and Practice: General Course in Public International Law, 178 Collected Courses of the Hague Academy of International Law  (1982) 21, 50.

Ibid, 49. Schachter gives a fitting example from the law of the law. The freedom of seas is a major “community policy”, but that cannot override rules of navigation or unlawful conduct on the high seas.

Schill, supra note 2.

SW Schill, The Multilateralization of International Investment Law: Emergence of a Multilateral System of Investment Protection on Bilateral Grounds, 2 Trade L & Dev (2010) 59.

SW Schill, Multilateralizing Investment Treaties through Most-Favored-Nation Clauses, 27 Berkeley J Intl L (2009) 496–569.

Schill, supra note 2, at 24.

Ibid, 16–17.

Ibid, 15–16.

Schill, supra note 69, at 67.

Kurtz, supra note 29, at 755–6.

Schill, supra note 2, at 89–90.

Ibid, 68–69.

M Sornarajah, Mutations of Neo-Liberalism in International Investment Law, 3 Trade, L & Dev (2011) 203; M Sornarajah, The Fair and Equitable Standard of Treatment: Whose Fairness? Whose Equity? In, Frederico Ortino, Lahra Liberti, Audley Sheppard and Hugo Warner (ed) Investment Treaty Law: Current Issues , vol 2 (BIICL, London, 2007).

Schill, supra note 2, at 107–108.

See the Indian Model BIT. For an analysis, see, Aniruddha Rajput, Shifting Treaty Practice of India: From 2003 Model BIT to 2015 Model BIT, 7 (2) Jindal Global L Rev (2016) 201.

For a discussion on balancing treaties, see Sornarajah (Mutations of Neo-Liberalism), supra note 80, at 228; J Alvarez, Return of the State, 20 Minnesota J Intl L (2011) 223; K Vandevelde, A Comparison of the 2004 and 1994 US Model BITs: Rebalancing Investor and Host Country Interests, 1 Yrbk Intl Investment L & Pol’y (2008–09) 283; G Gagne & J-F Morin, The Evolving American Policy on Investment Protection: Evidence from Recent FTAs and the 2004 Model BIT, 9 J Intl Econ. L (2006) 357, 363; M Kantor, The New Draft Model US BIT: Noteworthy Developments, 21 J Intl Arb (2004) 383, 385; S Schwebel, The United States 2004 Model Bilateral Investment Treaty: An Exercise in the Regressive Development of International Law, 3(2) Transnatl Disp Management (2006).

Schill, supra note 68, at 65.

In Pac Rim v El Salvador the Tribunal was posed with the interpretation of denial of benefits clause (discussed in detail below) under Article 10.12.2 of Dominican Republic – Central America – United States Free Trade Agreement (CAFTA). It declined to rely on interpretation of denial of benefits clause in Article 17 (1) of the Energy Charter, advanced by other Tribunals. Although the nature and purport of the clause was same, its contents were different and thus interpreted independently. Pac Rim Cayman LLC v The Republic of El Salvador , ICSID Case No ARB/09/12, Decision on the Respondent's Jurisdictional Objections, (1 June 2012) [4.1–4.5].

M Sornarajah, Pursuit of Nationalized Property M Nijhoff, Leiden, 1986 36–7.

Phoenix Action, Ltd v The Czech Republic , ICSID Case No ARB/06/5, Award, (15 April 2009) [54].

Sornarajah, supra note 88, 324; R Dolzer & C Scheruer, Principles of International Investment Law (OUP, Oxford, 2008) 45–46.

Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v Spain), Second Phase, Judgment of 5 February 1970, [1970] ICJ Rep 42 [70]; Sornarajah, supra note 88, 324.

Barcelona Traction case , ibid, [38].

Ibid, [41], [43].

Ibid, [44]. The requirement of direct injury to shareholders, independent of the corporation is codified in the Draft Articles on Diplomatic Protection, 2006. Article 12 specifies: ‘To the extent that an internationally wrongful act of a State causes direct injury to the rights of shareholders as such, as distinct from those of the corporation itself, the State of nationality of any such shareholders is entitled to exercise diplomatic protection in respect of its nationals.’< http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_8_2006.pdf >.

Dolzer and Schreuer, supra note 88, 56–59.

Schill, supra note 2, 202–203.

Ibid, 196–200.

Ibid, 217–218.

There is reference to the effect of Barcelona Traction in arbitral jurisprudence, but that is limited mostly to the standing of minority shareholders. See GAMI Investments Inc v The Government of the United Mexican States , UNCITRAL, Final Award, (15 November 2004) [29–38]. Interestingly, Schill acknowledges this problem of obscurity of substantive protection of shareholders’ rights. Schill, supra note 2, 209.

Schill, supra note 2, 207–208.

Ibid, 59, 68, 74.

Barcelona Traction, supra note 89, [56].

Tokios Tokelès v Ukraine, ICSID Case No ARB/02/18, Decision on Jurisdiction, (29 April 2004) [56].

See, A Alexeyev & S Vitocich, Tokios Tokele`s Vector: Jurisdictional Issues in ICSID Case Tokios Tokelés v Ukraine, 9 J World Investment & Trade (2008) 519.

Tokios Tokelès , supra note 103, at [21].

Ibid, [22]; Also, see, Report of the Executive Directors on the Convention on the Settlement of Disputes between States and Nationals of Other States, ICSID, April 2006, [28–30].

Ibid, [30].

Ibid, [31].

Ibid, [56].

Tokios Tokelès v Ukraine, ICSID Case No ARB/02/18, Dissenting Opinion (Chairman Prosper Weil, President), (29 April 2004), [1].

Ibid, [6], [11].

Ibid, [25].

Christoph Schreuer and others, The ICSID Convention: A Commentary , 2 nd edn (CUP, Cambridge, 2009) 137.

Schill, supra note 2, at 228.

Phoenix Action, Ltd v The Czech Republic , ICSID Case No ARB/06/5, Award, (15 April 2009), [106–113].

Standard Chartered Bank v The United Republic of Tanzania , ICSID Case No ARB/10/12, Award, (2 November 2012) [196–201].

Auguas del Tunari, SA v Republic of Bolivia , ICSID Case No ARB/02/3, Decision on Respondent’s Objections to Jurisdiction, (21 October 2005) [19].

ADC Affiliate Limited and ADC & ADMC Management Limited v The Republic of Hungary , ICSID Case No ARB/03/16, Award of the Tribunal, (2 October 2006) [358]; Saluka v Czech Republic , UNCITRAL, Partial Award, (17 March 2006) [222–42].

See Agreement between the Republic of Austria and the Republic of Uzbekistan for the Promotion and Protection of Investments, 2000, Article 10 < http://investmentpolicyhub.unctad.org/Download/TreatyFile/226 >; Agreement between the Hashemite Kingdom of Jordan and the Republic of Austria for the Promotion and Protection of Investments, 2001, Article 10 < http://investmentpolicyhub.unctad.org/Download/TreatyFile/194 >; Agreement between the Lebanese Republic and the Republic of Austria on the Reciprocal Promotion and Protection of Investments, 2001, Article 10 < http://investmentpolicyhub.unctad.org/Download/TreatyFile/198 >; Agreement between the Republic of Austria and the Great Socialist People’s Libyan Arab Jamahiriya for the Promotion and Protection of Investments 2002, Article 9 < http://investmentpolicyhub.unctad.org/Download/TreatyFile/199 >; Agreement between Japan and the Socialist Republic of Vietnam for the Liberalization, Promotion and Protection of Investment, 2003, Article 22 < http://investmentpolicyhub.unctad.org/Download/TreatyFile/1738 >.

Rachel Thorn and Jennifer Doucleff, Disregarding the Corporate Veil and Denial of Benefits Clauses: Testing Treaty Language and the Concept of “Investor” in Michael Waibel, Asha Kaushal, Kyo-Hwa Liz Chung and Claire Balchin (eds) The Backlash Against Investment Arbitration: Perceptions and Reality (Wolters Kluwer, 2010), 10.

Amco Asia Corporation and others v Republic of Indonesia , ICSID Case No. ARB/81/1, Decision on Jurisdiction, (25 September 1983) [105–8]; Autopista Concessionada de Venezuela, CA v Bolivarian Republic of Venezuela, ICSID Case No ARB/00/5, Decision on Jurisdiction, (27 September 2001), [51, 52, 63–6, 110–6].

Société Ouest Africaine des Bétons Industriels (SOABI) v Senegal , ICSID Case No ARB/82/1 Decision on Jurisdiction, (1 August 1984) [41–6].

Tokios Tokelès case, supra note 103, [36].

Ibid, [35].

Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Article 31.1.

Ibid, Article 31.2 (a).

Ibid, Article 31.2 (b).

United Nations, Draft Articles on the Law of Treaties with Commentaries, 2 ILC Yrbk (1966) 187, 221.

UNCTAD (Scope and Definition), supra note 40, at 38, 39; See Articles 1.3–1.5, Indian Model BIT 2015.

See Canada – Autos , WTO-AB, 31 May 2000 [69]; EC- Tariff Prefrences , WTO-AB, (7 April, 2004) [104]; US – Section 211 Appropriations Act , WTO-AB, (2 January 2002) [297]; See, J Jackson, W Davies and A Sykes, Legal Problems of International Economic Relations: Cases, Materials, and Text on the National and International Regulation of Transnational Economic Relations , 4 th edn (West Group, 2002) 415.

UNCTAD, Most-Favoured-Nation Treatment: UNCTAD Series on Issues in International Investment Agreements II (United Nations Publication, 2010) 13–14.

United Nations, Draft Articles on most-favoured-nation clauses with commentaries, 2 ILC Yrbk (1978) 16, Article 5. The Draft Articles were never adopted by the General Assembly and they remain of persuasive value.

Schill, supra note 68, at 70.

UNCTAD (Scope and Definition), supra note 40, at 3, 6.

John Jackson, The World Trading System: Law and Policy of International Economic Relations , 2 nd edn (MIT Press, Cambridge, 1997) 157–160.

Supra note 132, Article 7; Ibid, 2.

Supra note 132, Article 4.

UNCTAD (Scope and Definition), supra note 40, at 23.

Ibid, 26, 53–54; Parkerings-Compagniet AS v Republic of Lithuania , ICSID Case No ARB/05/8, Award, (11 September 2007) [368], [369].

UNCTAD (Scope and Definition), supra note 40, at 26, 54.

See, SD Myers, Inc v Government of Canada, UNCITRAL, Final Award, (30 December 2002).

See, Marvin Roy Feldman Karpa v United Mexican States , ICSID Case No ARB(AF)/99/1, Award, (16 December 2002). See, Champion Trading Company, Ameritrade International, Inc v Arab Republic of Egypt , ICSID Case No ARB/02/09, Award, (27 October 2006). See, United Parcel Service of America Inc v Government of Canada, UNCITRAL, Award on the Merits, (24 May 2007).

See, Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc v the United Mexican States , ICSID Case No ARB(AF)/04/5, Award, (21 November 2007); Corn Products International, Inc v the United Mexican State s, ICSID Case No ARB(AF)/04/1, Decision on Responsibility, (15 January 2008).

UNCTAD (Scope and Definition), supra note 40, 26.

See Pope & Talbot Inc v The Government of Canada , UNCITRAL, Award on the Merits of Phase 2, (10 April 2001).

Parkerings-Compagniet AS v Republic of Lithuania , ICSID Case No ARB/05/8, Award, (11 September 2007), paras 428–30.

UNCTAD (Scope and Definition), supra note 40, 29.

UNCTAD, (Most-Favoured-Nation Treatment), supra note 131, 45–53.

Annex IIII, Article 2 (2), Canada Model BIT, 2004.

Article 3 (3), Germany Model BIT, 2008.

Article 3 (4), Germany Model BIT, 2008.

Article 3 (2), Germany Model BIT, 2008.

Foot note 2 to Article 4, Norway Model BIT, 2007.

Annexure B, Norway Model BIT, 2007.

Article 14 (1) (c), United States Model BIT, 2012.

Article 14 (2), United States Model BIT, 2012.

Article 14 (3), United States Model BIT, 2012.

Article 14 (5) (a), United States Model BIT, 2012.

Article 14 (5) (b), United States Model BIT, 2012.

Técnicas Mediombientales Tecmed, SA v The United Mexican States , ICSID Case no ARB (AF)/00/02, Award, (29 May 2003) [69]; MCI Power Group LC and New Turbine, Inc v Republic of Ecuado r, ICSID Case No ARB/03/6, Award, (31 July 2007).

UNCTAD ( Scope and Definition ), supra note 40, at 24.

Hochtief AG v The Argentine Republic , ICSID Case No ARB/07/31, Decision on Jurisdiction, (24 October 2011) [81]; European American Investment Bank AG (EURAM) v Slovak Republic , UNCITRAL, Award on Jurisdiction, (22 October 2012) [446–56]; Les Laboratoires Servier, SAA, Biofarma, SAS, Arts et Techniques du Progres SAS v Republic of Poland , UNCITRAL, Award (redacted), (14 February 2012) [511]; Vannessa Ventures Ltd v Bolivarian Republic of Venezuela , ICSID Case No ARB(AF)/04/6, Award, (16 January 2013) [133]; Rafat Ali Rizvi v Republic of Indonesia , ICSID Case No ARB/11/13, Award on Jurisdiction, (16 July 2013) [220]; ST-AD GmbH v Republic of Bulgaria , UNCITRAL PCA Case No 2011–06 (ST-BG), Award on Jurisdiction, (18 July 2013) [396]; Metal-Tech Ltd v Republic of Uzbekistan , ICSID Case No ARB/10/3, Award, (4 October 2013) [145–163].

UNCTAD (Scope and Definition), supra note 40, iv.

Salini Costruttori SpA and Italstrade SpA v The Hasemite Kingdom of Jordan , ICSID Case No ARB/02/13, Decision on Jurisdiction, (9 November 2004) [115–8]; Plama Consortium Limited v Republic of Bulgaria , ICSID Case No ARB/03/04, Decision on Jurisdiction, (8 February 2005) [208–09, 212, 219]; Telenor Mobile Communications AS v The Republic of Hungary , ICSID Case No ARB/04/15, Award, (13 September 2006) [92–5]; Vladimir Berschader and Moïse Berschader v The Russion Federation , Arbitration Institution of the Stockholm Chamber of Commerce Case No 080/2004, Award, (21 April 2006) [178], [181].

Wintershall Aktiengesellschaft v Argentine Republic , ICSID Case No ARB/04/14, Award, (8 December 2008) [160 (3)].

UNCTAD (Scope and Definition), supra note 40, 4.

Société Générale In respect of DR Energy Holdings Limited and Empresa Distribuidora de Electricidad del Este, SA v The Dominican Republic , UNCITRAL LCAI Case No UN 7927, Award on Preliminary Objections to Jurisdiction, (19 September 2008) [41].

supra note 49, 62.

Daimler Financial Services v Argentine Republic , ICSID Case No ARB/05/1, Award, (22 August 2012), paras 232–3. The adhoc Annulment Committee declined to interfere with these observations Daimler Financial Services v Argentine Republic , ICSID Case No ARB/05/1, Decision on Annulment, (7 January 2015) [141–6].

Hochtief AG v. The Argentine Republic , ICSID Case No. ARB/07/31, 24 October 2011, Decision on Jurisdiction, para 81; International Law Commission, Final Reprot: Study Group on the Most-Favoured-Nation Clause < http://legal.un.org/ilc/reports/2015/english/annex.pdf > [106].

JA Maupin, MFN-Based Jurisdiction in Investor-State Arbitration: Is there any Hope for a Consistent Approach?, 14(1) J Intl Econ L (2011) 157.

Ibid, 176–77; Also, see, Wintershall Aktiengesellschaft v Argentine Republic , ICSID Case No ARB/04/14, Award, (8 December 2008) [88–91].

Telenor Mobile Communications AS v The Republic of Hungary , ICSID Case No ARB/04/15, Award, (13 September 2006) [92].

Telenor Mobile Communications case, supra note 175, at [93], citing Plama v Bulgaria .

Telenor Mobile Communications case , supra note 175, at [95–7].

Telenor Mobile Communications case , supra note 175, at [92].

Daimler Financial Services case , supra note 172, at [240–4].

UNCTAD, (Most-Favoured-Nation Treatment), supra note 131, at 84–7, citing examples of various treaties that have included the Maffezini clause.

Ibid; India recently issued a Model BIT and removed the MFN clause from the Model BIT altogether, available at < http://indiainbusiness.nic.in/newdesign/upload/Model_BIT.pdf > last visited 14 August 2016.

International Law Commission, Most-Favoured-Nation clause: Final Report of the Study Group on the Most-Favoured-Nation clause, 2015, Vol II (Part Two) ILC Yrbk (2015) [212–7].

AK Kanungo, India’s Overseas Investment in Africa: An Initiative for South-South Cooperation, 11 J World Investment & Trade (2010) 669, 796–798.

See, E Gillman, The End of ISA in Ecuador? An Analysis of Article 422 of the Constitution of 2008, 19 American Rev Intl Arb (2008) 269.

See, Ioan Micula, Viorel Micula, SC European Food SA, SC Starmill SRL and SC Multipack SRL v Romania , ICSID Case No ARB/05/20, Decision on Jurisdiction, (24 September 2008).

Damon Vis-Dunbar, NGOs Claim the Phillipines Japan Free Trade Agreement is Unconstitutional, Investment Treaty News, June 5, 2009 < www.iisd.org/itn/2009/06/05/ngos-claim-the-philippine-japan-free-trade-agreement-is-unconstitutional/ >.

LE Trakman, Investor State Arbitration or Local Courts: Will Australia Set a New Trend?, 46 J World Trade (2012) 83, 84.

Department of Foreign Affairs and Trade, Australian Government, Gillard Government Trade Policy Statement: Trading Our Way to More Jobs and Prosperity (14 April 2011) < http://www.dfat.gov.au/publications/trade/trading-our-way-to-more-jobs-and-prosperity.pdf >.

Article 29.5, Trans Pacific Partnership (TPP).

Damon Vis-Dunbar, Norway Shelves its Draft Model Bilateral Investment Treaty, Investment Treaty News , (8 June 2009) < http://www.iisd.org/itn/2009/06/08/norway-shelves-its-proposed-model-bilateral-investment-treaty/ >.

Author information

Authors and affiliations.

Member, United Nations International Law Commission, Geneva, Switzerland

Aniruddha Rajput

Advocate, Supreme Court of India, New Delhi, India

You can also search for this author in PubMed   Google Scholar

Corresponding author

Correspondence to Aniruddha Rajput .

Additional information

I thank Professor M Sornarajah and members of the Doctoral Reading Group at the Faculty of Law, the National University Singapore, for their comments. I would also like to thank Rouble Sorkkar for her efficient research assistance. The responsibility for the views expressed and errors are entirely mine.

Rights and permissions

Reprints and permissions

About this article

Rajput, A. The myth of a multilateral framework in international investment law. Indian Journal of International Law 56 , 427–461 (2016). https://doi.org/10.1007/s40901-017-0052-9

Download citation

Published : 01 March 2017

Issue Date : December 2016

DOI : https://doi.org/10.1007/s40901-017-0052-9

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• International investment law
• Investor State dispute resolution
• Investment treaty arbitration
• International economic law
• Find a journal
• Publish with us
• Track your research

Brill | Nijhoff

Brill | Wageningen Academic

Brill Germany / Austria

Böhlau

Brill | Fink

Brill | mentis

Brill | Schöningh

Vandenhoeck & Ruprecht

V&R unipress

Open Access

Open Access for Authors

Open Access and Research Funding

Open Access for Librarians

Open Access for Academic Societies

Discover Brill’s Open Access Content

Organization

Stay updated

Corporate Social Responsiblity

Investor Relations

Policies, rights & permissions

Review a Brill Book

Author Portal

How to publish with Brill: Files & Guides

Fonts, Scripts and Unicode

Publication Ethics & COPE Compliance

Data Sharing Policy

Brill MyBook

Ordering from Brill

Author Newsletter

Piracy Reporting Form

Sales Managers and Sales Contacts

Ordering From Brill

Titles No Longer Published by Brill

Catalogs, Flyers and Price Lists

E-Book Collections Title Lists and MARC Records

How to Manage your Online Holdings

LibLynx Access Management

Discovery Services

KBART Files

MARC Records

Online User and Order Help

Rights and Permissions

Latest Key Figures

Latest Financial Press Releases and Reports

Annual General Meeting of Shareholders

Share Information

Specialty Products

Press and Reviews

Share link with colleague or librarian

Stay informed about this journal!

• Get New Issue Alerts
• Get Advance Article alerts
• Get Citation Alerts

Multilateral Principles in a Bilateral World

Mandatory or consensual multilateralism in international investment law.

Multilateralism in international investment law is a multifaceted concept with a complex and eventful history. Multilateralism is a paradigm for international investment relations and is also present in the caselaw of investment arbitral tribunals, regardless of whether they consider bilateral or multilateral investment treaties. Indeed, in most cases, they interpret treaty provisions as part of a multilateral system. Further, multilateralism is present every time States act in concert with other States or consider other States’ investors’ legitimate interests.

It also emerges that, in some instances, multilateralism has become mandatory. For example, this is the case concerning sustainable development or climate change. In these areas, international law requires multilateralism. States are under an obligation to co-operate for purposes of achieving or promoting multilateral solutions. However, concerning the international investment law context, such a concept is not present. The general assumption is that States’ participation in multilateral practises is left to their discretion: it is voluntary or consensual. In this article, we question that assumption.

In this article, we offer a brief review of multilateral experiences in international investment law in the 20th century and provide an analysis of multilateralism in a historical context. Then we turn our attention to the current state of affairs to appreciate it in light of the past. Further, we discuss the future, and in particular, mandatory multilateralism in international law with respect to sustainable development. Here we identify the principles, which might justify mandatory multilateral approaches. Finally, we consider whether the principles justifying mandatory multilateralism in international law are applicable in the context of international investment law as well. We attempt to answer this question in the affirmative and point out further areas of research.

• 1 Introduction

Multilateralism in international investment law is a multifaceted concept with a complex and eventful history. Perhaps it is that very history that renders this concept so rich in different meanings. After all, as argued by Nietzsche, “only that which has no history can be defined”. 1 Multilateralism is one paradigm for international investment relations. 2 That is the case, in particular, for international lawyers who represent the view that international investment law is a uniform legal field and discipline. 3 At the same time, and as things stand, the content and primary sources of international law are multiple and often multilateral. They include treaties, which are international instruments, and customary international law. From an international coordination perspective the multilateral character of treaties is undisputable. 4 Perhaps, more interestingly, even bilateral treaties do contain provisions that reflect multilateral principles. 5 Customary international law is no doubt multilateral too: it arises from state practice and opinio juris . 6 Along the same lines, general principles of law (or internationally recognised general principles of law) are those shared by national legal systems worldwide. 7 Multilateralism is also present in the case law of international investment arbitral tribunals, regardless of whether they consider bilateral or multilateral investment treaties. Indeed, in most cases, they interpret treaty provisions as part of a multilateral system 8 – as they often refer to arbitral awards issued under the auspices of other treaties as persuasive authorities. Perhaps more importantly, multilateralism is present every time States act in concert with other States or consider other States’ investors’ legitimate interests. 9

The same holds true in the context of international law – international investment law is one of its sub-fields or disciples (rather than being a branch or subordinate of international economic law). However, in that context, it is possible to observe a further development. That is, in some instances, multilateralism has become mandatory. For example, this is the case concerning sustainable development or climate change. In these areas, international law requires multilateralism. States are under an obligation to co-operate for purposes of achieving or promoting multilateral solutions. However, concerning the international investment law context, such a concept is not present. The general assumption is that States’ participation in multilateral practises is left to their discretion: it is voluntary or consensual. In this article, we question that assumption. We consider whether any form of mandatory multilateralism is present or could be present, given the developments in international law concerning sustainable development.

Multilateralism is not universally accepted: some authors argue that it may undermine a libertarian internationalism, which has been prevalent for the better part of the second half of the twentieth century. 10 Such debates pertain particularly to international affairs and discussion of the role of global institutions. We focus our discussion on international investment law and hence will not debate the two paradigms.

Section 2 offers a brief review of multilateral experiences in international investment law in the 20th century. The purpose of this section is to provide an analysis of multilateralism in historical context. In Section 3 , we discuss the current state of affairs with a view of understanding it in light of the past. In section 4 , we discuss the future, and in particular, mandatory multilateralism in international law with respect to sustainable development. Here we identify the principles, which might justify mandatory multilateral approaches.

Further, we consider whether the principles justifying mandatory multilateralism in international law are equally applicable in the context of international investment law. We answer this question in the affirmative. In Section 4 , we conclude by summarising our argument.

2 Multilateralism’s Historical Trajectories

In this section, we consider multilateralism in international investment law in historical context. This section is descriptive and simply aims at tracing the trajectories of multilateralism. Our review starts from the period following the Second World War. Studying multilateralism before that period is relevant; however, it goes well beyond the scope of this article. Also, we simply consider how the interpreters of that period discuss multilateralism. Rather than define multilateralism and look for it in history, we do the opposite. We look at documents and authors at the time and see how they perceive and discuss multilateralism. 11

• 2.1 Multilateralism in the 20th Century

We thus start our analysis in the 1950s, where we find a consensus between capital-exporting and capital-importing countries concerning the need and desire of economic development for less developed areas. 12 The answer to such a need was twofold: a flow of capital-exporting States’ public funds; 13 and private international investments, i.e. foreign direct investment (“ fdi ”). At the same time, there appeared to be agreement on the need for an inevitable favourable investment climate. 14 Brandon summarised this point in his lecture to the International Law Conference – held in London and chaired by Fitzmaurice on 26 October 1957. 15 For the success of investment in underdeveloped areas, two were the ‘essentials’: “Firstly, an adequate and continuous availability of capital – both public and private – from the more developed countries, including within this context not only investment capital but also managerial and technical skills. Secondly, a welcoming attitude on the part of the less developed countries”. 16

Availability of public capital could take the form either of humanitarian/political aid or proper investment by capital-exporting States. However, the emphasis was more on private investment and fdi , of which the former would seem only complementary. This was, for example, the position of the United Kingdom, according to which: “[…] it is through the investment of privately owned funds in the Commonwealth that the United Kingdom has made in the past and should continue to make its most valuable contribution to Commonwealth Economic development”. 17

In these years, the United States and the United Kingdom directed most of the investment flow towards Canada and Latin America, which amounted to circa 5 billion dollars. 18 With almost no increase of investment flow in other areas, the discourse focused on how to increase investments towards areas like Asia, Africa, the Middle and Far East. 19 A number of international bodies suggested that a more favourable investment climate would have been necessary to reach such an objective. 20 At its Ninth Session on 21 December 1954, the UN General Assembly made a number of recommendations to countries which wished to attract foreign private capital. For example, according to one of them, those countries should:

“re-examine, wherever necessary, domestic policies, legislations and administrative practices with a view to improving the investment climate; avoid unnecessary burdensome taxation; avoid discrimination against foreign investment; facilitate the import by investors of capital goods, machinery and component materials needed for new investment; make adequate provisions for the remission of earnings and repatriation of capital”. 21

In line with the recommendation above, the literature of the time pointed out a number of risks international investment may encounter in ‘underdeveloped’ countries. 22 Above all and most prominently, expropriation – direct or indirect – without adequate or with inadequate compensation represents the main risk. 23 As a result of this preoccupation, different solutions were already in place. 24 Concerning multilateral approaches, we identify discussions at different levels on three potential options: an investment code, an insurance organisation, and an arbitration convention. 25

Concerning an investment code, there were different proposals. 26 However, the Draft Convention on Investments Abroad (“Abs/Shawcross Draft”) was, by far, the most influential one. 27 This draft results from the efforts of two exceptional figures with personal experience in expropriation cases, namely Herman Abs 28 and Lord Shawcross. 29 In particular, the Abs/Shawcross Draft incorporated an earlier draft convention prepared by the German Society – under the chairmanship of Herman Abs – and another draft convention written by a group of lawyers – under the chairmanship of Lord Shawcross. 30 Following their merge – and despite the lack of support from the respective governments 31 – the Abs/Shawcross Draft officially became an intergovernmental Draft Convention on the Protection of Foreign Property in November 1962, 32 when it was submitted to the oecd Council.

Also, it is noteworthy that the draft aspires, as aptly noted by Brandon, to codify “the generally accepted rules of international law, and at the same time, establish a system of international arbitration which would ensure the rapid and final settlement of disputes between sovereign states and private parties”. 33

The generally accepted rules of international law relevant in this regard were: pacta sunt servanda , protection against expropriation without compensation, non-discrimination of aliens. In line with this, the draft provided for fair and equitable treatment, protection against expropriation without compensation, most-favoured nation treatment, which had ‘a broad basis in the practice of civilized states and the findings of international tribunals’. 34 In so doing, its purpose is incorporating principles which are, in essence, multilateral, since they derive from State practice.

Further, it aimed at creating a system of neutral arbitration, which would have allowed investors to bring claims directly to States. 35 In the drafting of these provisions, Sir Elihu Lauterpacht’s contributions were particularly significant. Above all, the idea of a “right of direct recourse to some international remedial processes” is perhaps the most relevant one. Such a notion is line with his father’s concept of international law, according to which the individual is the ultimate unit of international law. 36 Sir Elihu promoted the draft before the oecd between 1960–1967. As a result, the oecd transposed his idea in oecd Draft.

Despite American opposition and the British more ambiguous hesitance towards the draft, the latter was sent to capital-importing States for consultation purposes. 37 In the meantime, Germany and Switzerland’s support for the draft started vacillating. They had been simultaneously negotiating Bilateral International Treaties (“ bit s”) and realised that it was easier to reach the desired protection by concluding such treaties. 38 By 1965, within the oecd , it was clear that bit s would replace the draft. In 1966, States decided to agree on a non-binding resolution acknowledging their agreement on the draft’s principles – with Turkey and Spain abstaining from the resolution. 39

States did not sign and ratify the oecd Draft, hence its failure. However, we should note here that, at the time, one could already find discussions in the literature on how bit s would create a multilateral treaty system. Brandon’ words in 1957 are clear:

“[…] [S]ince these treaties each contain the same general provisions, it is submitted that they may be regarded as a method whereby conventional international law may be evidenced by a quasi-multilateral treaty system composed of a series of bilateral treaties containing substantially similar terms and one party common to each”. 40

Also, according to Hyde, such treaties might be considered as reflecting international law rules – i.e. multilateral rules accepted by States. In other words, in his view, States included in those treaties what “those parties supposed to be the requirement of international law, rather than special concessions or undertakings involving commitments which that law did not call for”. 41 Similarly, Boas suggested that the oecd Draft’s principles “might serve as a restatement and a clarification of the international law on the subject of the treatment of foreign property and find their way into bilateral agreements and foreign investment laws”. 42 Without a doubt, this is what happened in the years to come. Indeed, since then, at different points in time, one can see that the oecd Draft has had a significant impact on the way States approach and draft their bit s. 43

A multilateral investment code did not receive much consensus from States, as seen above. On the contrary, States did endorse the creation of a multilateral insurance organisation during the 1960s. 44 However, such a consensus did not lead to the creation of an insurance organisation at the time. 45 Only in 1988, 172 States concluded the Multilateral Guarantee Agency (“ miga ”), 46 whose purpose was “to encourage the flow of investments for productive purposes among member countries”. Its insurance covers most investment risks, including, for example, expropriations and damages from war and civil unrest. Such a convention has been signed and ratified by a significant number of States, and it represents a successful multilateral initiative, which has created an international insurance framework.

An arbitration convention represents another expression of multilateralism in the 20th century. Contemporary to the attempts concerning a multilateral investment code, discussions were undergoing as to the possibility of concluding an arbitration convention. In this sense, one can point to the UN Progress Report by the Secretary-General in 1960. 47 This report underlines some solutions to address the “real problem”, namely the lack of “an effective forum in which to enforce [investors’ rights]”. 48 In particular, it suggested solutions to this issue “in view of the doubts regarding the practicality of the [ oecd drafts]”. 49 The primary alternative solution was an “international agreement limited to arbitration” for investor-state disputes and creating an arbitral institution. It also referred to the possibility of creating a multilateral framework through concluding bilateral treaties. In particular, it noted that:

“Where a government has different policies vis-à-vis investments from different capital-supplying countries, bilateral instruments might offer a more acceptable solution than multilateral agreements. Indeed the latter may conceivably develop from the emergence of a growing network of bilateral agreements or within the framework of a regional organisation”. 50

In the literature of the time, Brandon agreed with the report’s considerations, considering the possibility of concluding an arbitration convention separately from a multilateral agreement a viable solution. 51 As for the possibility of creating a multilateral framework through bilateral treaties, Brandon had somehow already put forward such a proposal in 1957. 52

In this context, the World Bank became involved with an arbitration convention, 53 and in 1961, Broches presented the first official proposal. 54 Unlike the oecd Draft, States received more favourably the idea of an arbitration convention under the auspices of the World Bank. 55 As a result, in 1965, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ icsid Convention”) opened for signature. 56

This multilateral convention created the International Centre for Settlement of Investment Dispute (“ icsid ”), an international organisation and an arbitration institution administering investment arbitrations between investors and States. In particular, Broches worked on a system of arbitration with treaty-based consent, domestic-law consent, and contract-based consent. 57 By including consent to icsid arbitration either in treaties – bilateral and multilateral – domestic laws and contracts, States would allow investors to bring claims against host States.

Furthermore, States have attempted other multilateral approaches to international investment law at the end of the 20th century. In particular, this was the case in two contexts, namely international trade and once again oecd . In the context of international trade, 58 evidence of these attempts is present in the conclusion of the Agreement on Trade-Related Investment Measures (“ trim s”), 59 the General Agreement on Trade in Services (“ gats ”), 60 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (“ trips ”). 61 In all these examples, however, the focus on investment matters is somewhat limited. Indeed, the trim s is limited to ”investment measures related to trade in goods only”. 62 The gats , though it facilitates access to foreign markets and foreign investment, only applies to matters in case of specific commitment by a State. 63 The trips limits its protection to only one aspect of foreign investment activities, namely intellectual property. 64

Further, at the First Ministerial Meeting in Singapore in 1996, it was decided not to provide “a mandate for future negotiations” 65 on investment matters in the wto ’s context – despite developed countries’ persistence. 66 In reaction to this decision, several developed countries decided to change forum for such discussions and went back to the oecd , 67 intending to negotiate the Multilateral Agreement on Investment (“ mai ”). 68 Despite its similarities with bit s in terms of protection offered to investors and dispute settlement provisions, the mai represented another failure of multilateralism in the 20th century, partly because the oecd was perceived by some as being controlled by developed countries and as not having adequate participation from developing countries. Continuing disagreement between States, coupled with opposition from the public – expressed by several ngo s – contributed to such a result. 69

• 2.2 Multilateralism in the 21st Century in International Investment Law

Having described multilateralism in the past, here we move to consider multilateralism at present. In doing so, we are interested in identifying its contemporary expression in international investment law and the legal discourse concerning it.

As mentioned above, in the 1960s, while discussing a multilateral investment code, States started concluding bilateral investment treaties, in which the protection of investment was the primary goal. 70 Since then, they have created an investment treaty regime by concluding more than 3500 agreements – including bit s, a few plurilateral investment treaties, and free trade agreements providing an investment protection chapter (“ iia s”). 71 These treaties generally contain similar clauses, which resemble the provisions of the oecd Draft. In most cases, they also include dispute settlement provisions.

The prevalent use of treaties of a bilateral character, unsurprisingly, has raised the question of whether a system or network of international investment law is conceivable or one has to consider each treaty separately. 72 On this question, one can identify two competing positions. On the one hand, some argue that there is no multilateral order 73 and each bilateral or multilateral agreement creates a micro-system for its signatories. It is posited that there is an “unstructured process of privatised legal entrepreneurship which seeks to further a professional interest in developing an extensive, investor friendly, regime of bit s.” 74 According to this view, there is no evidence that the mass of international investment agreements is other than a ”relatively uncoordinated system of bilateral, regional and plurilateral instruments”. 75 Furthermore, according to this view, there are no “generalised rules” concerning international investment law. Generalised rules would imply customary rules, and the entirety of international investment agreements would not create such rules.

On the other hand, some consider international investment law as a uniform system, or at least a network of treaties. The main representative of this view is, without a doubt, Professor Schill. In support of this argument, he points out that there appears to be an undergoing process towards accepting multilateralism as a paradigm. 76 In his view, treaty-making and investment arbitration case law would support this argument. Concerning treaty-making, he refers to an argument he has put forward, for the first time, in his work The Multilateralization of International Investment Law . In this book, he points out that historically, the similarities between international investment agreements result from capital-exporting States’ intention to create a multilateral framework. 77 In substance, we can consider this position in terms of continuity with the legal discourse contemporary to the oecd Draft discussion. It reflects an argument, which, for the first time, the UN Progress Report by the Secretary-General put forward in 1960, as shown above.

Furthermore, we identify multilateral approaches for purposes of reforming the investment arbitration regime. Such approaches are evident under uncitral Working Group iii (“ wgiii ”). In particular, these solutions are the introduction of: a) Multilateral Permanent Court, namely a two-tiered standing court, which would replace the current system; 78 or b) an appellate system, which would be hearing/deciding appeals. 79 Reform discussions derive from the necessity to address different issues. Among them is inconsistency, on which wgiii is particularly focussing. The focus is, of course, on unjustified inconsistency in cases, for instance, “where the same investment treaty standard or same rule of customary international law was interpreted differently in the absence of justifiable ground for the distinction”. 80 The issue of unjustified inconsistency implies that regardless of the bilateral/multilateral character of treaties, one should interpret the same treaty standards and customary law rules consistently. 81 In doing so, it accepts that such rules and standards do relate to each other, hence there should be an inevitable convergence of meaning, absent any ground which would suggest otherwise. Finally, the authors of this article have also represented the view of the need for multilateral approaches in a Policy Brief prepared for the 2020 T20 which was also endorsed and submitted to the G20. 82 In particular, the policy brief advocates the need for a holistic reform agenda and multilateral consensus building, supported by a new institution.

3 Mandatory Multilateralism in International Investment Law

In this section, we answer the question set at the beginning. That is, whether we can identify mandatory multilateralism in the field of international investment law, given that in most instances multilateralism appears to be consensual and voluntary. Before answering such a question, we need to define mandatory multilateralism. In particular, we refer to “multilateralism” from an international coordination perspective, which includes more than three States. “Mandatory” implies a lack of discretion on the States’ part.

In our view, mandatory multilateralism has always been present in the field of international investment law to a certain extent, even if not in a manifest fashion. In support of this argument, we rely on history, and in particular on the multilateral principles under customary international law underlying international investment agreements States have started concluding in the 1960s. In our view, those principles – mandatory insofar as part of customary international law – are clear manifestations of creeping mandatory multilateralism.

Furthermore, in international law, it is possible to identify mandatory multilateralism in other areas. We briefly discuss mandatory multilateralism concerning sustainable development. We argue that international law might require mandatory multilateralism in international investment law with respect to matters concerning sustainable development. A limitation would apply here: we do not discuss the requirements of this mandatory multilateralism. We focus more on the conceptual foundations of this argument.

• 3.1 Mandatory Multilateralism in International Investment Law – Customary International Law Rules

Here we consider more specifically whether we can identify mandatory multilateralism in international investment law. We answer this question in the affirmative by drawing attention to past and present practices.

First, mandatory multilateral rules constitute the backbones of the international investment law regime. It was so even before States started concluding international investment agreements. 83 In support of this argument, we consider the Abs/Shawcross Draft insofar it included mandatory multilateral rules. Those rules were: pacta sunt servanda , protection against expropriation without compensation, non-discrimination of aliens and their property. For instance, when Brandon examined the draft, he concluded that it included those principles. 84 Similarly, Schwarzerbenger’s critical commentary considered to what extent the draft reflected customary international law. In his view, it included the principles referred above. For example, Article I incorporated the definition of property rights in international law. 85 Also, it included the minimum standard of treatment under international law – expressed by “the positive obligation to ensure the ‘most constant protection and security’ for property.” 86 Furthermore, Article ii reflected the principle of pacta sunt servanda . In international law, States are under an obligation to comply with their undertakings towards investors. 87 Article iv included the protection against expropriation without compensation. 88

As we already alluded to, States did not sign the Abs/Shawcross Draft – which became the oecd Draft 89 – for a variety of reasons. 90 However, the oecd Draft’s failure did not jeopardise or undermine the existence of the principles above. Brandon considered this point when commenting on the Abs/Shawcross Draft. He specifically referred to capital-exporting States’ fear of jeopardising customary law rules by negotiating them in a multilateral convention. In his view, that was not an issue. In his words:

“First, there would be no question of negotiating customary rules. They exist and are generally accepted. Second, since the object of the exercise is to improve the investment climate, if investors would prefer to see the customary rules conventionalized-and there is no objection from the standpoint of the capital-importing countries-why should the governments of the industrialised countries not agree?” 91

Indeed, when States realised that they would not sign a multilateral treaty, they also considered whether such a failure would have impacted on the relevant customary international law; 92 the acceptance in principle of the draft was aimed at avoiding any such consequences. 93

These rules are part of customary international law; hence, they are of a mandatory character. They apply regardless of their inclusion in a treaty. 94 For this reason, they fall within the realm of the prohibition of unilateralism. 95 States cannot derogate from them unless otherwise agreed in a treaty. This conclusion is in line, for example, with Kelsen’s idea of sovereign equality – which is the cornerstone of the international legal order – according to which “[s]overeignty in the sense of international law can mean only the legal authority or competence of a State limited and limitable only by international law and not by the national law of another State”. 96 As a corollary of their mandatory character, States are under an obligation to coordinate their policies with respect to those principles. 97 In our view, this instance would clearly represent a form of mandatory multilateralism from an international co-operation perspective.

Furthermore, States have incorporated these mandatory multilateral rules in a growing and evolving international investment agreement network – either in bilateral or multilateral treaties. Despite going beyond the scope of this article, in our view, the argument above also reinforces the idea of multilateralism as an ordering paradigm in international investment law, which Schill convincingly argues. 98 Indeed, focusing on the underlying principles of international agreements, the logical conclusion is that there is a mandatory multilateral framework under relevant customary international law norms. Concerning optional treaty standards – such as national treatment or most-favoured-nation clauses – the conclusion is similar: those provisions derive from certain general principles. This consideration allows assimilating, from a conceptual perspective, different provisions across multiple treaties.

Of course, different wording might correctly lead to varying interpretations of these provisions. However, it does not exclude the existence of a multilateral network of principles of international investment law and an ensuing dialogue amongst treaties. 99 The current reform discussions under the auspices of uncitral Working Group iii confirm this argument. Indeed, States consider consistency fundamental concerning the same treaty standards and customary international law rules’ interpretation. Thus, they impliedly accept the existence of this multilateral framework of principles – either under international law or treaties – and the existence of a dialogue amongst those instruments.

• 3.2 Mandatory Multilateralism in International Investment Law Concerning Sustainable Investment

Most pertinently, international law, in some instances, would require mandatory multilateralism. This consideration applies to different areas, of which we have selected one. In particular, we refer to sustainable development. In international investment law, the legal discourse has been increasingly focussing on it, for good reasons.

Intending to contribute to the debate, in this section, we consider whether, from a conceptual perspective, it is arguable that international law requires mandatory multilateralism beyond customary international law norms in the field of international investment law with respect to sustainable development. In order to avoid any possible doubt, we refer to mandatory multilateralism from an international co-operation perspective. That is, the question is whether international law requires States to co-operate and thus prohibits unilateralism. We attempt to argue that since international law requires mandatory multilateral co-operation between States on matters concerning sustainable development, such a co-operation would be equally mandatory in international investment.

Our analysis’s starting point is the increasing trend – in international investment law – to recognise the relevance of sustainable development and environmental protection. This trend is evident in the literature, 100 treaties, 101 and case law. 102 For example, Baltag aptly points out that the reform of the international investment regime is underway. 103 In particular, she notes that there is a shift in recent treaties from investment protection towards investment regulation. 104 This change can take different forms. For example, as noted by Chi, States can incorporate sustainable development provisions in the preamble of international investment treaties, both substantive and procedural. 105 The relevance of these measures is undeniable. Indeed, the international investment law regime must “go beyond mere investment/investor protection to a more comprehensive set of objectives”. 106

However, here we do not intend to focus on how desirable these objectives are. Instead, we want to explore whether it is arguable that international law does require States to co-operate in international investment law with respect to matters concerning sustainable development. The first point we should note is that there are cases in which international law requires co-operation between States. This is the case, for example, with resources, which international law considers “commons”. The concept of global commons applies in different contexts, such as “common areas”, ”common heritage”, or “common concerns” of mankind. 107 For example, high seas under the UN Convention on the Law of the Sea (“ unclos ”) are commons. As a result, States are under an obligation to co-operate for the conservation and management of living resources in the high seas; and establish, through negotiation, multilateral frameworks to guarantee the sustainable exploitation of fisheries and living resources. 108 The concept of common areas also concerns outer space, which includes the moon and other celestial bodies. In light of this, States, under the Treaty on Outer Space 109 must co-operate by giving due regard to the “corresponding interests of all States”. 110

Furthermore, we should note that under the Rio Declaration on Environment and Development, 111 States have to co-operate “in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystems”. Similarly, the UN Framework Convention on Climate Change provides the “widest possible co-operation by all countries and their participation in an effective and appropriate international response”. 112 Such a duty of co-operation finds support in the international jurisprudence of the icj with respect to sustainable development as well. 113

To the extent that sustainable investment is interwoven with international investment – which is directly related to economic development 114 – in principle, one could argue that the same duty of co-operation might arise in international investment law. To explain and support this view, we employ Criddle and Fox-Decent’s interpretative theory concerning mandatory multilateralism in international law. 115 In their article, Mandatory Multilateralism , they argue that manifestations of mandatory multilateralism – such as the ones we have briefly considered above – can be explained by the principles of sovereign equality and joint stewardship. The corollary of this argument would be that mandatory multilateralism is “an emerging institutional feature of international law that brings the institutions of international law into the deepest conformity possible with its fundamental normative principles”. 116

In particular, concerning common resources and sustainable development more in general, they point out the relevance of the concept of joint stewardship. This idea provides “a framework for apprehending cases where the care of a common concern is expressly consigned (usually via treaty) to multiple parties”. 117 In its essence, this concept applies when global commons are at stake and its function is two-fold: it prohibits a State unilateral assertion over a global common and it requires States to negotiate in good faith with regards to its collective use. 118 Accordingly, for the purpose of arguing that international law requires mandatory multilateralism in international investment law, we would need to identify multilateral treaties on global commons – which might enter in contact or interaction with international investment law. For example, the UN Framework Convention on Climate Change 119 – which we mentioned above – would fall within that definition. Therefore, it would be arguable, in principle, that international law might require in certain cases a duty to co-operate in international investment law – unless we want to deny the potential relationship/interference between investments and common resources.

• 4 Concluding Remarks

Multilateralism, very much like pluralism of norms, is embedded in the architecture of international investment law. Even before the conclusion of international investment agreements, it was already there – in few, limited but well defined, mandatory multilateral rules. During the 1960s, multilateralism’s dimensions involved the project of a multilateral treaty on investment protection, an investment insurance organisation, and an arbitration convention – yet only the last two survived. Simultaneously, those few multilateral rules were being incorporated in bilateral treaties, which States considered apt to replace a multilateral treaty.

During the 1970s, the existence of those few mandatory multilateral rules was contested but eventually confirmed. Between 1980–2000, other attempts to create a multilateral treaty were made, yet they failed. By 2010, multilateralism was a paradigm that would assist international lawyers and academics in making sense of a system constituted of norms deriving by general principles but contained in different treaties – with potentially different wording. In 2021, multilateral approaches to procedural aspects appear the only viable solutions to ensure consistency of interpretation of those provisions.

In sketching multilateralism’ conceptual change, this article has tested a general assumption on multilateralism. That is, States’ participation in multilateral practises is left to their discretion: it is primarily consensual and voluntary. This article has questioned that assumption and pointed out that a form of mandatory multilateralism has always been present in international investment law, at the very least as a creeping mandatory multilateralism. Then, we considered whether it is possible to argue and justify the extension of mandatory multilateralism, whether creeping or outright, to sustainable development matters in international investment law. We have attempted to answer that question in the affirmative by employing Criddle and Fox-Decent theory on mandatory multilateralism in international law.

At the outlook of this article, we also wish to identify – as areas for future research – a few other prominent manifestations of emerging or creeping mandatory multilateralism in international investment law. These would include, inter alia , the multilateral dimension of the rule of law, international condemnation of corruption and bribery, and the requirement that business respect human rights and the safeguarding of the right to state to regulate. The very fact that mandatory multilateralism is creeping does not undermine its existence or significance: it merely presents the surmountable challenge of having to engage in the intellectual and practical exercise of identifying its parameters and content. At the same time, mandatory multilateralism does not require universal acceptance of its content: it suffices to establish that States, international organisations and other stakeholders voluntarily accept the existence of the multilateral norms and make steps to either consensual follow them or at the very least not breach them.

nietzsche , On the Genealogy of Morals , London, 2013 , p . 81.

schill , “Ordering Paradigms in International Investment Law: Bilateralism—Multilateralism—Multilateralization”, in douglas, Pauwelyn , and viÑuales (eds.), The Foundations of International Investment Law , Oxford, 2014, p. 109 ff., pp. 109–141.

See for example, schill , The Multilateralization of International Investment Law , Cambridge, 2009; chalamish , “The Future of Bilateral Investment Treaties: A de facto Multilateral Agreement?”, Brooklyn Journal of International Law, 2009, p. 303; montt , State Liability in Investment Treaty Arbitration—Global Constitutional and Administrative Law in the BIT Generation , London, Hart, 2009; salacuse , The Law of International Investment Treaties , Oxford, 2010; avi-Yonah , “National Regulation of Multinational Enterprises: An Essay on Comity, Extraterritoriality, and Harmonization”, Columbia Journal of Transnational Law, 2003, p. 5; muchlinski , “The Rise and Fall of the Multilateral Agreement on Investment: Where Now?”, The International Lawyer, 2000, p. 34.

If one considers the distinction between unilateral and non-unilateral actions, multilateralism includes any form of potential non-unilateral action, as a result of joint activity by two or more States. This would cover the full spectrum of international co-operation from thin bilateralism to robust unilateralism. This reflects Keohane’s nominal definition of multilateralism, which he defines as: “the practice of co-ordinating national policies in groups of three or more states”. keohane , “Multilateralism: An Agenda for Research”, International Journal, 1990, p. 731. However, multilateralism has a qualitative dimension as well. In the words of Ruggie: “[…] what is distinctive about multilateralism is not merely that it coordinates national policies in groups of three or more states, which is something that other organizational forms also do, but that it does so on the basis of certain principles of ordering relations among those states.” ruggie, “ Multilateralism – The Anatomy of an Institution”, International Organization, 1992 , p . 567. On this point, see also criddle and Fox-Decent , “Mandatory Multilateralism”, The American Journal of International Law, 2019, p. 272. In this article, Criddle and Fox-Decent consider whether States in international law are always free to choose whether to participate in multilateral regimes. Their article suggests this is not always the case; they identify the principles supporting mandatory multilateralism and applies the latter to three controversies, namely: the South China Sea dispute, the United States’ withdrawal from the 2015 Paris Agreement, and Bolivia’s case against Chile in the International Court of Justice. In this article, we transpose that question in the context of international investment law.

For example, as suggested by Schill, mfn clauses do represent an element of a multilateral structure. schill , cit . supra note 2 , p . 121. Indeed, at the very least, depending on the words of the treaty, they do imply considering treatment granted to a third State.

Judge Read has defined customary international law as ‘the generalization of the practice of States’. Fisheries (UK v Norway ), Judgment of December 18, 1951, Judge Read, icj Reports, 1951, p. 191.

lauterpacht , Private Law Sources and Analogies of International Law , London, 1927, p. 71. According to him: “[…] the actual will of States as evidenced by custom and treaty may, when necessary, be supplemented by such rules and principles as correspond to the nature of the legal relations between them, to rules of justice, and to general principles of law; and finally, that those general principles of law are for most practical purposes identical with general principles of private law.”

In the ongoing reforms discussion under uncitral Working Group iii , States agree that there is need for consistency in the case law of investment tribunals. In so doing, they confirm the multilateral character of the current investment regime. The interpretation of similar provisions in a consistent way does imply the existence of a multilateral framework. In most cases, this is present in the caselaw, even when there is a disagreement in terms of interpretative conclusions. See for example, sgs Société Générale de Surveillance S.A. v Republic of the Philippines , icsid Case No. arb /02/ 6, Decision of the Tribunal on Objections to Jurisdiction of January 29, 2004, para. 97. In the words of the Tribunal: “[A]lthough different tribunals constituted under the icsid system should in general seek to act consistently with each other, in the end it must be for each tribunal to exercise its competence in accordance with the applicable law, which will by definition be different for each bit and each Respondent State. Moreover, there is no doctrine of precedent in international law, if by precedent is meant a rule of the binding effect of a single decision. There is no hierarchy of international tribunals, and even if there were, there is no good reason for allowing the first tribunal in time to resolve issues for all later tribunals. It must be initially for the control mechanisms provided for under the bit and the icsid Convention, and in the longer term for the development of a common legal opinion or jurisprudence constante, to resolve the difficult legal questions discussed by the sgs v. Pakistan Tribunal and also in the present decision.” On internal and external coherence in the context of international investment law, see for example Z arra , “The Issue of Incoherence in Investment Arbitration: Is There Need for a Systemic Reform?”, Chinese Journal of International Law, 2018, pp. 137–185.

A good example of a multilateral approach is presented by the ongoing reform efforts under uncitral Working Group iii , which is considering potential procedural reforms of the current investment arbitration regime. On the reform discussions, see generally, langford et al., “Special Issue: uncitral and Investment Arbitration Reform: Matching Concerns and Solutions”, The Journal of World Investment & Trade, 2020.

See druzin , and ikenberry , “The End of the Liberal International Order?”, International Law Affairs, 2018.

We employ a contextualistic approach along the line of Skinner’s approach, see generally skinner , “Meaning and Understanding in the History of Ideas”, History and Theory, 1969, p. 3.

See for example United Nations Secretary-General, Information Concerning International Economic Assistance for the Less Developed Countries, UN Doc. E/3047, 1957, para. 5, in which “under-developed countries” ”have been defined to include all countries in Africa, except the Union of South Africa, in North and South America, except Canada and the United States and in Asia, except Japan”. This survey considers the magnitude and geographical distribution of countries bilateral assistance to under-developed countries; it also indicates each country’s contributions to international governmental agencies engaged in the economic assistance to under-developed countries. On the concept of economic development in general in this period, see buchanan and ellis , Approaches to Economic Development , New York, 1955, pp. 3–22; leibenstein , Economic Backwardness and Economic Growth , New York, 1957, pp. 7–14; higgins , Economic Development , New York, 1959, pp. 3–24.

On public aids, see United Nations Secretary-General, Information Concerning International Economic Assistance for the Less Developed Countries, UN Doc. E/3047, 1957. On private investment flow, see United Nations Secretary-General , The International Flow of Private Capital 1956–1958 , UN Doc. E/3021, 1959.

brandon , “Legal Deterrents and Incentives to Private Foreign Investments”, Grotius Society Transactions, 1957, p. 41; brandon , “Survey of Current Approaches to the Problem”, in The Encouragement and Protection of Investment in Developing Countries , International & Comparative Law Quarterly Supplement, 1962; fatouros , “Legal Security for International Investment”, in friedmann and pugh (eds.), Legal Aspects of Foreign Investment , Boston, 1959, p. 699; miller , “Protection of Private Foreign Investment by Multilateral Conventions”, American Journal of International Law, 1959, p. 375; metzger , “Multilateral Conventions for the Protection of Private Foreign Investment”, Journal of Public Law, 1960, p. 133; fatouros , “An International Code to Protect Private Investment”, Toronto University of Law Journal, 1961, p. 78.

See, brandon , cit . supra note 14, p. 39.

UK Command Paper No. 237 (July 1957), para 17 as cited by Brandon, cit. supra note 14, p. 40.

On United States’ investment flow see U.S. Department of Commerce, Survey of Current Business, August 1957; on United Kingdom’s investment flow see Economic and Social Council, Financing of Economic Development – The International Flow of Private Capital, UN Doc. E/3021, 1957, p. 22.

brandon , cit . supra note 14, p. 41. In the words of the President of the International Finance Corporation at its first Annual Meeting: “If private investment is to spread and grow to its full potential, it is important, on the one hand, that there should be an increasing understanding by the governments and the peoples of the developing countries of what private business is and how it operates; and on the other hand, a recognition by business of its responsibilities as well as its essential rights. The long-term mutuality of interest needs to be kept in mind – the worthy motives and rights of all parties deserve respect. For the country desiring the benefits which can flow from vigorous, expanding private business, I consider the prime essential to be the development of an attitude of friendliness and co-operation, rather than of suspicion and obstruction. This may sound too obvious to mention, yet we see too many examples of legislation, regulations and administration which reflect, at the best, mere tolerance to business, and frequently actual hindrance.” International Finance Corporation, Board of Governors, Summary Proceedings, Annual Meeting of the Board of Governors, 1956, p. 10.

See for example, Economic and Social Council, Economic Development of Under-Developed Countries, International Flow of Private Capital for The Economic Development of Under-Developed Countries – Memorandum by Secretary General on Action Taken to Stimulate the International Flow of Private Capital, UN Doc. E/2546, 1954, pp. 24–30. This is the case for example of the World Bank, p. 24 and the International Monetary Fund, p. 30.

UN General Assembly, Resolution 824( ix )(1954), UN Doc. a/res /824( ix ), 1954.

As summarised by fatouros: “Foreign enterprises operating in underdeveloped countries are today subject to a high degree of government control, direct or indirect. The entry of foreign capital often depends upon the approval of the government of the country of investment and the business activities of aliens or of foreign owned corporations are in many cases severely limited. The existence of exchange controls makes the repatriation of the foreign investor’s capital or earnings difficult or, sometimes, impossible. And the possibility of expropriation, of the taking over of the whole enterprise by the government of the host country, with inadequate or no compensation, is always present. The businessmen of the capital-exporting countries are therefore reluctant to invest in the underdeveloped areas, unless the expected profits are high enough to compensate them for the risks they are taking. The chief underlying cause of the insecurity of private investment is the general political and economic instability which prevails in most underdeveloped countries and is one of the causes as well as one of the effects of their underdevelopment”. fatouros , cit . supra note 14, p. 78; see generally brandon , “Legal Deterrents and Incentives to Private Foreign Investments”, cit. supra note 14, p. 41; brandon , “Survey of Current Approaches to the Problem”, cit . supra note 14, p. 2; fatouros , “Legal Security for International Investment”, in friedmann and pugh (eds.), cit . supra note 14, p. 699; metzger , cit . supra note 14, p. 133.

See brandon , “Legal Deterrents and Incentives to Private Foreign Investments”, cit. supra note 14, p. 43.

Solutions included: introducing legislation granting a minimum of legal protection and incentives to foreign investors; offering insurance to foreign investors on the part of capital-exporting States; concluding bilateral treaties providing for the protection of foreign investment. On these solutions, see fatouros , “Legal Security for International Investment”, in friedmann and pugh (eds.), cit . supra note 14, p. 699.

These three solutions were being discussed together in most cases, by literature and States in multilateral settings. On this point, see for example, st John , The Rise of Investor-State Arbitration: Politics, Law, and Unintended Consequences , Oxford, 2018, p. 70.

brandon, “ Recent Measures to Improve the International Investment Climate”, Journal of Public Law, 1960. He discusses different proposals, which are the proposal in the Council of Europe of an investment statute and guarantee fund for development in African States; and a British Parliamentary Group’s Commission concerning a World Investment Convention.

unctad , International Investment Instruments: A Compendium – Volume V , 2000, p. 300. For a contemporary commentary of it, see georg Schwarzenberger , “The Abs-Shawcross Draft Convention on Investments Abroad: A Critical Commentary”, Journal of Public Law, 1960.

Herman Abs, at the time, was the Chairman of Deutsche Bank. An analysis of this figure goes beyond the scope of this article. Suffice it to say that historians consider him a very complex figure, who has been involved in expropriations both as expropriator and expropriatee. See lothar Gall , “Hermann Josef Abs and the Third Reich: ‘A Man for all Seasons’?”, Financial History Review, 1999, pp. 147–202; harold , The Deutsche Bank and the Nazi Economic War against the Jews: The Expropriation of Jewish-Owned Property , Cambridge, 2001; st John , cit. supra note 25, p. 79. Abs’ writings on investment protection include, for example: abs , “The Safety of Capital”, in D aniel , Private Investment: The Key to International Industrial Development ; A Report of the San Francisco Conference, October 14–18 , New York, 1957; abs , Proposals for Improving the Protection of Private Foreign Investments , Rotterdam, 1958.

Lord Shawcross, Chief Prosecutor for the United Kingdom at the Nuremberg Trials, has served as director at Shell between 1959 and 1972; st John , cit. supra note 25, p. 84. In terms of expropriation experience, he was involved as counsel in the Abadan Refinery Case. See mostafa , Oil, Power, and Principle: Iran’s Oil Nationalization and Its Aftermath , New York, 1992.

brandon , cit . supra note 26, p. 127.

See st John , cit. supra note 25, pp. 80- 88.

Ibid. , p. 87.

brandon , cit. supra note 26, p. 128.

abs and shawcross , “The Proposed Convention to Protect Foreign Investment: A Round Table”,’ Journal of Public Law, 1960, p. 119. In general, on the draft, see schwarzenberger , cit. supra note 27, p. 147. On the key role Sir Elihu Lauterpacht played in shaping the dispute settlement provisions, see chernykh , “‘The gust of wind: The unknown role of Sir Elihu Lauterpacht in the drafting of the Abs-Shawcross Draft Convention”,’ in schill, Taims, Hoffman (eds.) , International Investment Law and History , Cheltenham, 2018, pp. 239–284.

However, it should be noted that these provisions were optional. That is, even if the draft had been signed and ratified, States would have had to consent to arbitration.

See chernykh , cit. supra note 34, p. 279; lauterpacht , “‘The World Bank Convention on the Settlement of International Investment Disputes”, in lalive and freymond (eds.), Recueil d’études de droit international en hommage à Paul Guggenheim , 1998, p. 664; lauterpacht , “International Law and Private Foreign Investment ” , Indiana Journal of Global Legal Studies, 1997 , p . 274.

See st John , cit. supra note 25, p. 89.

brandon , “Legal Deterrents and Incentives to Private Foreign Investments” cit. supra note 14, pp. 45–46.

hyde , International Law Chiefly as Interpreted and Applied by the United States , Boston, 1951, p. 714.

boas , “The O.E.C.D. Draft Convention on the Protection of Foreign Property”, Common Market Law Review, 1963, p. 289.

See for example, denza and brooks , “Investment Protection Treaties: United Kingdom Experience”, International & Comparative Law Quarterly, 1987, p. 910; gudgeon , “United States Bilateral Investment Treaties”, International Tax & Business Law, 1986, p. 111; schill , cit. supra note 3, p. 39.

On States’ consensus on this proposal see st John , cit. supra note 25, p. 99.

For a chronological review of the events leading to the creation of miga , see shihata , “Towards a Greater Depoliticization of Investment Disputes: The Roles of icsid and miga ”, ICSID Review – Foreign Investment Law Journal, 1986, p. 17.

On the miga , see generally, alsop , “The World Bank’s Multilateral Investment Guaranty Agency”, Columbia Journal Transnational Law, 1986; chatterjee , “The Convention Establishing the Multilateral Investment Guarantee Agency”, International & Comparative Law Quarterly, 1987; shihata , cit. supra note 45, p. 17; shihata , “The Multilateral Investment Guarantee Agency”, RCADI, Vol. 203, 1986, p. 487; shihata , “The Multilateral Investment Guarantee Agency ( miga ) and the Legal Treatment of Foreign Investment”, RCADI, Vol. 203, 1987, p. 95; shihata , “ miga and Foreign Investment”, The International Lawyer, 1988; schill , cit. supra note 3, p. 48.

United Nations Secretary-General, The Promotion of the International Flow of Private Capital – Progress Report, UN Doc. E/3325, 1960, para 200.

Ibid. , para. 203.

Ibid. , para. 206.

brandon , cit. supra note 26, p . 128.

brandon , cit. supra note 14, p. 45.

See st John , cit. supra note 25, pp. 131–140. In particular, St John suggests that the World Bank was involved with the idea of an arbitration convention before the Progress Report of the UN secretary General in 1960. Here, we should also note that St John has shown that the following individuals were involved in drafting the first version of the convention: Aron Broches, Georges Delaume, Elihu Lauterpacht, Clifford Hynning, George Haight, L. Sandberg, and John Blair.

icsid , History of the Convention: Documents Concerning the Origin and the Formulation of the Convention in English , Volume ii , Part 1, 1970, SecM 61–192.

Ibid. , SeCM 62-68 p. 13, point 17.

Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, entered into force 14 October 1966.

On this point see, parra , The ICSID Convention: A History , Oxford, 2017, p. 51; st John , cit. supra note 25, p. 151. On the icsid Convention, see parra , The ICSID Convention: A History , Oxford, 2012; parra , “Participation in the icsid Convention”, ICSID Review, 2013, pp. 169–78; parra , “‘Black’s Bank’ and the Settlement of Investment Disputes”, in Practising Virtue: Inside International Arbitration , caron , schill , smutny , and triantafilou , Oxford, 2015; parra , “Remembering Aron Broches”, Investment Claims, 2016; baltag , “The icsid Convention: a successful story – the origins and history of the icsid ”, in baltag (ed.) ICSID Convention after Fifty Years: Unsettled Issues , The Netherlands, 2017 , pp. 1–24.

See generally schill , cit. supra note 3, p. 50; dattu , “A Journey from Havana to Paris: The Fifty-Year Quest for the Elusive Multilateral Agreement on Investment”, Fordham International Law Journal, 2000, p. 275.

Agreement on Trade-Related Investment Measures, adopted 15 April 1994, entered into force 1 January 1995.

General Agreement on Trade in Services, adopted 15 April 1994, entered into force 1 January 1995.

Agreement on Trade-Related Aspects of Intellectual Property Rights, adopted 15 April 1994, entered into force 1 January 1995.

Article 138. This agreement has been criticised for this limitation. See schill , cit. supra note 3, p. 51; dattu , cit. supra note 58, p. 291; civello , “The trim s Agreement: A Failed Attempt at Investment Liberalization”, Minnesota Journal of Global Trade, 1999, p. 97.

schill , cit. supra note 3, pp. 51–52

World Trade Organization, Ministerial Declaration, wt / min (96)/ dec , adopted December 13, 1996, para. 20.

schill , cit. supra note 3, p. 52; burt , “Developing Countries and the Framework for Negotiations on Foreign Direct Investment in the World Trade Organization”, American University of International Law Review, 1997, p. 1049.

dattu , cit. supra note 58, p. 295.

On the mai , see for example, canner , “The Multilateral Agreement on Investment”, Cornell International Law Journal, 1998, pp. 657–682; rainer , “Towards a Multilateral Agreement on Investment”, Cornell International Law Journal, 1998, pp. 467–476; daly , “Investment Incentives and the Multilateral Agreement on Investment”, Journal of World Trade, 1998, pp. 5–26; baumgarten , “The Demise of the Multilateral Investment Agreement on Investment”, Colorado Journal of International Environmental Law and Policy, 1990, pp. 40–47.

schill , cit. supra note 3, p. 55.

vandevelde , “A Brief History of International Investment Agreements”, University of California Davis Journal of International Law and Policy, 2005, p. 166.

See the comprehensive list of International Investment Agreements (“ iia s”), most of which are in force, at https://investmentpolicy.unctad.org/international-investment-agreements (last accessed on 17 May 2021).

On bit s and customary international law, see for example, lowenfeld , “Investment Agreements and International Law”, Columbia Journal of Transnational Law, 2003, p. 123; schwebel , “Investor-State Disputes and the Development of International Law: The Influence of Bilateral Investment Treaties on Customary International Law”, Proceedings of the American Society of International Law, 2004, p. 27; hindelang , “Bilateral Investment Treaties, Custom and a Healthy Investment Climate—The Question of Whether bit s Influence Customary International Law Revisited”, Journal of World Investment & Trade, 2004, p. 789; alvarez , “A bit on Custom”, New York University Journal of International Law & Politics, 2009, p. 17; sornarajah , The International Law On Foreign Investment , Second edition, Cambridge, 2004, pp. 205- 213; yackee , “Pacta Sunt Servanda and State Promises to Foreign Investors Before Bilateral Investment Treaties: Myth and Reality”, Fordham International Law Journal, 2009, pp. 1550–1552; porterfield , “An International Common Law of Investor Rights?”, University of Pennsylvania Journal of International Law, 2006, p. 79.

As a representative of this view, see for example, muchlinski , “Corporations and the Uses of Law: International Investment Arbitration as a ‘Multilateral Legal Order’”, Oñati Socio-Legal Series, 2011, p. 1.

Ibid. , p. 1.

Ibid. , p. 7.

schill , cit. supra note 2, pp. 109–141.

Schill, cit. supra note 3, p. 40. Of course it can be argued that douglas in his book, The International Law of Investment Claims , Cambridge, 2009, which is drafted as a restatement of international law, effectively also espouses this view.

uncitral , Submission from the European Union and its Member States, UN Doc. a / cn .9/ wg.iii/wp .159/Add.1, 2019.

uncitral , Submission from the Government of China, UN Doc. a/cn.9/wg.iii/wp .177, 2019.

uncitral Working Group iii , Report of Working Group iii (Investor-State Dispute Settlement Reform) on the work of its thirty-fifth session, UN Doc. a/cn .9/935, 2018, para 21.

We use here the term consistency as a synonym of coherence. On consistency, see arato , brown , ortino , “Parsing and Managing Inconsistency in Investor-State Dispute Settlement”, Brooklyn Law School Legal Studies Research Paper no. 631, 2020, p. 4; diel-Gligor , Towards Consistency in International Investment Jurisprudence: A Preliminary Ruling System for ICSID Arbitration , Leiden, 2017, p. 105; brower and sharpe , “Multiple and Conflicting International Arbitral Awards”, Journal of World Investment, 2003, p. 211; crawford , “Similarity of Issues in Disputes Arising under the Same or Similarly Drafted Investment Treaties”, in gaillard and banifatemi (eds.), Precedent in International Arbitration , New York, 2008, pp. 97–103; kaufmann-Kohler , “Is Consistency A Myth?”, in gaillard and banifatemi (eds.), Precedent in International Arbitration , New York, 2008; dimsey , The Resolution of International Investment Disputes: Challenges and Solutions , Utrecht, 2008, pp. 35–100; schreuer , “Coherence and Consistency in International Investment Law”, in echandi and sauvé (eds.), Prospects in International Investment Law Cambridge , 2013, pp. 391–402; dolzer , “Perspectives for Investment Arbitration: Consistency as a Policy Goal?”, in echandi and sauvé (eds.), Prospects in International Investment Law Cambridge , 2013, pp. 403–410; harhay , “Investment Arbitration in 2021: A Look to Diversity and Consistency”, Southwestern Journal of International Law, 2011, pp. 89–102; reinish , “The Proliferation of International Dispute Settlement Mechanisms: The Threat of Fragmentation vs. the Promise of a More Effective System? Some Reflections from the Perspective of Investment Arbitration”, in buffard (ed.), International Law between Universalism and Fragmentation , Leiden, 2008 p. 107; schreuer , “Revising the System of Review for Investment Awards”, BIICL Paper 1, 2009, pp. 1–8; tams , “An Appealing Option? The Debate about an icsid Appellate Structure”, Essays in Transnational Economic Law, 2006, pp. 17–23; arato et al., Working Group No 3: Lack of Consistency and Coherence in the Interpretation of Legal Issues : Concept Paper on Issues of ISDS Reform , 2019, p. 1 ff.; ridi , “Approaches to External Precedent: The Invocation of International Jurisprudence in Investment Arbitration and wto Dispute Settlement”, in gáspár-Szilágyi , behn langford , Cambridge, 2020, pp. 121–148.

See, mistelis et al ., “ Reforming investor-state dispute settlement and promotion of trade and investment co-operation”, G20 Insights, November 22, 2020 | Last updated: December 10, 2020, available at https://www.g20-insights.org/policy_briefs/reforming-investor-state-dispute-settlement-and-promotion-of-trade-and-investment-co-operation/ (last accessed on 20 May 2021).

Admittedly, in the context of the United Nations General Assembly, during the 1970s, there were attempts to exclude the element of compensation for expropriation from customary international law. However, these attempts were unsuccessful. On this point, see, for example, alvarez , cit. supra note 72, p. 39; schill , cit . supra note 3 , pp. 37-38.

See brandon , cit. supra note 26, pp. 129–130. Similarly, he reached the same conclusions with respect to the reports of the Council of Europe and the British Parliamentary Group for World’s Government Commission; schwarzenberger , cit. supra note 27, p. 147.

schwarzenberger , cit. supra note 27, p. 152; for discussions on expropriation at the time, see for example wortley , Expropriation in Public International Law , Cambridge, 1959.

schwarzenberger , cit. supra note 27, p. 153.

schwarzenberger , cit. supra note 27, pp. 154–155. Of course, on this point, he noted that the draft did not provide for the exhaustion of local remedies, which it represented a derogation from international law. However, this consideration does not exclude that, in essence, Article ii reflected the principle of pacta sunt servanda.

schwarzenberger , cit. supra note 27, p. 156. cheng , General Principles of Law , London, 1953, p. 37. Here we have to note that Schwarzenberger correctly pointed out the omission of the “public interest” element in the provisions concerning expropriation under international law.

On the relationship between the Abs/Shawcross draft and the oecd Draft, see chernykh , cit. supra note 34, pp. 280–284. As already mentioned, Sir Elihu Lauterpacht was involved in the work of the oecd Draft as well. For example, he answered a question as to whether a limited acceptance of the draft would have weakened the customary international law concerning foreign investments. He replied that: “I do not think concern about the effect of non-acceptance of the relevant rules of customary international law should be allowed to influence the decision whether or not to open the Convention for ratification. To my mind, considerations which are so theoretical or, if real, so marginal in their effect, should not be permitted to obscure the undoubted advantage of extending the network of compulsory jurisdiction links between States in matters affecting property. In my estimate, it would be a positive, even though slight, gain if the Convention were to become operative between even as few as two States”, cit. supra note 34, p. 283.

See brandon , cit. supra note 26, p. 128.

Amongst them was for example, the fear of being on the receiving end of claims before arbitral tribunals – which was expressed by UK officials with respect to the Shawcross draft. See st John , cit. supra note 24, p. 86. Also, the US did not welcome the focus of the draft on substance, See icsid , cit. supra note 54, p. 16, point 17.

st John , cit. supra note 25, p. 95, where she referred to a 1963 letter to the Swiss Government arguing that if the Draft failed, it would degrade investment protection because it could be concluded that the draft did not codify existing norms of international law.

Ibid . For some consideration on the relationship between customary international law and U.N. resolutions see for example, R oucounas , “Engagements parallèles et contradictoires”, RCADI, Vol. 206, 1987, paras. 343–347.

See for example, akehurst , “Custom as a Source of International Law”, British Yearbook of International Law, 1974–5, pp. 24–26. For a critical view on this, see bradley and gulati , “Withdrawing from International Custom”, Yale Law Journal, 2010, p. 202. In response to Bradley and Gulati, see for example, brilmayer and tesfalidet, “ Treaty Denunciation and ‘Withdrawal’ from Customary International Law: An Erroneous Analogy with Dangerous Consequences”, Yale Law Journal, 2011.

See for example , North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark / Federal Republic of Germany v. Netherlands ), ICJ Reports 1969, para. 63. In the words of the icj : “[…] by their very nature, [customary rules] must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its favour”.

kelsen , “The Principle of Sovereign Equality of States as a Basis for International Organization”, Yale Law Journal, 1944, p. 208.

On the hierarchy of international law norms, see for example’ roucounas , cit. supra note 93, at paras. 275–279 and more in general roucounas , A Landscape of Contemporary Theories of International Law , Leiden, 2019, at pp. 316 and 358.

Schill, cit. supra note 2.

See, for example, Parkerings-Compagniet as v. Lithuania , icsid Case No. arb /05/8, Award of September 11, 2007, para. 367, where the Tribunal observed, for example, that the principle of non-discrimination is underlying National treatment and Most-Favoured-Nation Treatment.

See for example, schrijver , “The Rise of Sustainable Development in International Investment Law”, in quayle , Yearbook of International Law , 2020, pp. 297–314; beharry and kuritzky , “Going Green: Managing the Environment through International Investment Arbitration”, American University International Law Review, 2015, p. 383; butler and subedi , “The Future of International Investment Regulation: Towards a World Investment Organisation?”, Netherlands International Law Review, 2017, pp. 43–72; chi , Integrating Sustainable Development in International Investment Law: Normative Incompatibility, System Integration and Governance Implications , London, 2018; icc , “Business Charter for Sustainable Development—Business Contributions to the UN Sustainable Development Goals”, Doc. No 213/18-13, 2015; marley , “The Environmental Endangerment Finding in International Investment Disputes”, New York University Journal of International Law and Politics, 2014, p. 1003; sands and peel , Principles of International Environmental Law , Cambridge, 4th edition, 2018. sands , “International Courts and the Application of the Concept of Sustainable Development”, Max Planck Yearbook of United Nations Law Online, 1999, p. 389; sands , “International Courts and the Application of the Concept of Sustainable Development”, Max Planck Yearbook of United Nations Law Online, 1999; subedi , International Investment Law: Reconciling Policy and Principle , London, Third edition, 2016; vasani and allen , “No Green without More Green: The Importance of Protecting fdi through International Investment Law to Meet the Climate Change Challenge”, European Investment Law, 2020, pp. 3–39.

See for example, Comprehensive Economic and Trade Agreement between EU and Canada (‘ ceta ’), adopted 30 October 2016; Comprehensive and Progressive Agreement for the Trans-Pacific Partnership (‘ cptpp ’), adopted 8 March 2018, entered into force 30 December 2018, see Chapters 20 on environment and 23 on development.

Cases related to sustainable development, for example, are: Bear Creek Mining Corporation v. Republic of Peru , icsid Case No. arb /14/2, Award of November 30, 2017; Eiser Infrastructure Limited and Energia Solar Luxembourg S.à.r.l v. Kingdom of Spain , icsid Case No. arb /13/36, Award of May 4, 2017; Burlington Resources Inc. v. Republic of Ecuador , icsid Case No arb /08/5, Decision on Liability of December 14, 2012; Interim Decision on Environmental Counterclaim of August 11, 2015; Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic , icsid Case No. arb /07/26, Award of December 8, 2016; Churchill Mining plc and Planet Mining Pty Ltd v. Republic of Indonesia , icsid Case No arb /12/14 and 12/40, Award of December 6, 2016; Pac Rim Cayman llc v. Republic of El Salvador , icsid Case No arb /09/12, Award of October 14, 2016; Philip Morris Brands sàrl , Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay , icsid Case No. arb /10/7, Award of July 8, 2016; Crystallex International Corporation v. Bolivarian Republic of Venezuela, icsid Case No arb ( af )/11/2, Award of April 4, 2016; William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada , pca Case No 2009-04, Award on Jurisdiction and Liability of March 17, 2015 ; Metal-Tech Ltd. v. The Republic of Uzbekistan , icsid Case No. arb /10/3, Award of October 4, 2003.

baltag , “From investment promotion and protection to investment regulation”, Columbia fdi Perspectives, 2020, p. 1.

Ibid. , p. 2.

chi , cit. supra note 100, Part 2.

In a recent policy paper, we have submitted that the reformed international investment system should cover “sustainable development, dispute prevention, environmental protection, and protecting sme investments”. See, mistelis et al., “Reforming Investor-State Dispute Settlement and Promotion of Trade And Investment Co-operation”, G20 Insights, 2020, note 82.

On this point see criddle and fox-Decent , cit. supra note 4, p. 280; brunnée , “Common Areas, Common Heritage, and Common Concern”, in bodansky , brunnée and hey (eds.), The Oxford Handbook Of International Environmental Law , Oxford, 2007 p. 550; brunnée , “International Environmental Law: Rising to the Challenge of Common Concern?”, Proceedings of the 114th ASIL Annual Meeting, 2006, pp. 307–310.

UN Convention on the Law of the Sea, adopted 10 December 1982, entered into force 16 November 1994, Art. 118.

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, adopted 27 January 1967, entered into force 10 October 1967, Art. ii .

Ibid. , Art. ix .

Rio Declaration on Environment and Development, adopted 14 June 1992, UN Doc. a / conf .151/26, Principle 7.

UN Framework Convention on Climate Change, 9 May 1992, entered into force 21 March 1994.

Gabčikovo-Nagymaros Project (Hungary v. Slovakia) , Judgment of 25 September 1997, icj Reports, 1997, p. 78, para. 141; North Sea Continental Shelf Cases (Federal Republic of Germany v. Netherlands and Federal Republic of Germany v. Denmark ), Judgment of 20 February 1969, icj Reports, 1969, pp. 46–47, para. 85; Pulp Mills on the River Uruguay (Argentina v. Uruguay. ), Judgment of 20 April 2010, icj Reports, 2010, para. 184.

Ibid., Gabčikovo-Nagymaros Project , para. 140. The icj did not consider the relationship between investment and sustainable development. However, it did consider the relationship between economic development and sustainable development. In the words of the icj : “Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind – for present and future generations – of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.”

criddle and fox-Decent , cit. supra note 4, p. 280.

Ibid. ,p. 287.

Ibid. ,p. 298.

Paris Agreement to the United Nations Framework Convention on Climate Change, 12 December 2015, entered into force 4 November 2016.

Content Metrics

Reference Works

Primary source collections

COVID-19 Collection

How to publish with Brill

Open Access Content

Contact & Info

Sales contacts

Publishing contacts

Stay Updated

Newsletters

Social Media Overview

Terms and Conditions  

Privacy Statement  

Cookie Settings  

Accessibility

Legal Notice

Terms and Conditions   |   Privacy Statement   |  Cookie Settings   |   Accessibility   |  Legal Notice   |  Copyright © 2016-2024

Copyright © 2016-2024

• [66.249.64.20|185.80.149.115]
• 185.80.149.115

Character limit 500 /500

Previously known as Law portal

International Investment Law

International investment law is the arena of international law that oversees relationships between states and foreign investors. The system of international investment law has no central treaty or institution unlike the WTO Trade System. This field of law contains more than 3200 bilateral investment treaties (BITs) and investment chapters in preferential trade agreements (jointly referred to here as investment treaties).

Investment treaties frequently permit foreign investors to straight away bring legal challenges against the government of the state, in which their investment is held, through a process known as investor-state dispute settlement (ISDS) .  Bilateral Investment Treaties are a very critical part of International Investment Law. Despite their innumerable number, investment treaties follow a sufficiently uniform structure and lay down relatively uniform principles for the treatment of foreign investors as well as build on a mutual dispute settlement mechanism which debatably results in a regime that is largely comparable to a multilateral system [1] . Investment treaties typically grant investors the right not to be stolen from without compensation, to be treated fairly and equitably, to enjoy full protection and security, and to be treated no less favorably than national investors or investors from any third state. In addition, investment treaties offer foreign investors access to arbitration against the host state in order to bring claims, usually for damages, for breach of the obligations so laid down in the treaty. This permits them to opt out of domestic courts and to bring a claim under international law without the need for the investor’s home state to exercise diplomatic protection [2] .

It would seem rational to think that the companies undertaking such businesses would only have to deal with local laws of the states and thus only have remedy in local courts, however, an increasing trend is to go to international panels, arbitration tribunals and courts set up specifically to deal with issues of foreign investment.

International investment law saw the major growth post-industrialization despite being one of the oldest aspects of international law and particularly during the present era of globalization. Post 1990s, the law has witnessed the rise of treaty law and mechanisms for investor-state dispute resolutions. Today it is one of the fastest rising branches of international law. The rationale behind the exponential growth in the present decade of this part of international law is owed to the high economic importance which foreign investment brings to the host state and the inclusive global economic development.

First BIT of India in 1993 was based on a model produced by a developed country where importance lied on protection of foreign investment, rather than internationally recognized regulatory powers of the state. In 1994, India signed its first BIT with the United Kingdom. The India-UK BIT served as the base model for India to negotiate further BITs. The Indian model of BIT, 2003 contained close semblance with the India-UK BIT. From 1994 to 2011, India had signed more than 80 BITs and ratified over 70.

After the White Industries case [3] in 2011, India’s method to investment treaties began to undergo a change. The government detached India’s bilateral investment treaties with 58 countries – all pacts had been based on the 1993 pattern. From the period between 2011 and 2015, India signed only one BIT with the UAE.

In 2016, India lost its arbitration case in an international tribunal against Bengaluru-based Devas Multimedia Private Ltd for cancelling its space/satellite contract with the government-owned Antrix Corporation. This is a subsequent international tribunal to rule against the Indian government in the Antrix-Devas scam [4] . The International Chamber of Commerce (ICC) tribunal found unanimously that Antrix’s violation of the contract was unlawful, and awarded Devas damages and pre-award interest of approximately 672 million US dollars, plus post-award annual interest accruing at 18 percent until the award is paid in full in an earlier decision of 2015. The Hague-based tribunal, which regularly takes cases involving states, including investment treaty claims brought under arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL), also found that India dishonored its treaty commitments to accord fair and equitable treatment to Devas’s foreign investors.

The government brought a new Model BIT in 2016 which came into force from April 2017 onwards. Special features of the New Model BIT are:

• The Model has implemented an ‘enterprise-based’ definition of investment under which investment is treated as the one made by an enterprise incorporated in the host state and hence, intellectual property assets are not considered.
• It let go of the Most Favoured Nation (MFN) status which was previously included.
• Actions of the state governments have been included.
• It connects the “Fair and Equitable Treatment” to international laws, intended at countering a broad interpretation and risk misuse.
• It comprises a new clause on non-discriminatory treatment for compensation of losses in situations like armed conflict, natural disasters and in the state of national emergency.
• It comprises a clause for transparency, demanding the Parties to ensure that all the laws, regulations, procedures and administrative rulings regarding matters covered in the BIT are published.
• It commands foreign investors to voluntarily adopt internationally recognized standards of corporate social responsibility (CSR).
• It stipulates that the aggrieved investor should use all local remedies as well as negotiations and consultations initiating arbitrations against the host State.

The change in the Investment policy imitates on the economy of the country as well as the International Commercial transactions. The GDP growth rate is at a five-year low. Domestic consumption is tumbling as well as the business confidence index has plunged. India has logged its highest unemployment rate in the last 45 years. Foreign direct investment (FDI) equity inflows to India in 2018-19 fell down by 1%. After an increase of 22% and 35% in 2014-15 and 2015-16, respectively, FDI equity inflows began narrowing down since 2016-17 [5] . The growth rate in this indicator has dropped to 9% and then to 3% in 2017-18.

BIT – The well-advertised improvement in India’s ease of doing business rankings has not meaningfully contributed to any rise in FDI. Particularly, this coincided with India’s decision, in 2016, to unilaterally terminate bilateral investment treaties (BITs) with more than 60 countries. This is around 50% of the total unilateral termination of BITs globally from 2010 to 2018. Unilateral termination of BITs on such a huge scale projects India as a country that does not respect international law. India has also recognized a new inward-looking Model BIT in 2016 that prioritizes state interests over protection to foreign investment. It came as a response to India being sued by several foreign investors before international arbitration tribunals.

It is suggested that a study be organized by the Government to look into the effect of the New Model BIT on the investment in the country. If the effect is adverse then changes and amendments may be made in the Model BIT to ensure that investment remains optimum in the nation so as to increase the international trade as well as the international commercial transactions.

Submitted by-

Akanksha Yadav

Intern at Law Portal

Mail: [email protected]

College: Vivekananda Institute of Professional Studies, GGSIPU

[1] Stephan W Schill, The Multilateralization of International Investment Law (Cambridge University Press, 2009)

[2] Generally on investment treaties see Campbell McLachlan, Laurence Shore and Matthew Weiniger, International Investment Arbitration – Substantive Principles (Oxford University Press, 2007); Andrew Newcombe and Luis Paradell, Law and Practice of Investment Treaties (Kluwer Law International, 2009); Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (2nd edn, Oxford University Press, 2012)

[3] White Industries v. Republic of India, Final Award, November 30 th , 2011.

[4] Antrix Corpn. Ltd. v. Devas Multimedia Pvt. Ltd., 2018 SCC OnLine Del 9338

[5] https://www.ibef.org/economy/indian-economy-overview

Author: Akanksha Yadav, Vivekananda Institute of Professional Studies, GGSIPU, Law Student

You may also like

Leave a comment cancel reply.

Save my name, email, and website in this browser for the next time I comment.

Notify me of follow-up comments by email.

Notify me of new posts by email.

Institute of Brand and Innovation Law

• Future Events
• Past Events
• Patent Fact Check

UCL LLM graduate, Dheemanth Vangimalla, wins an international research essay prize

3 April 2024

UCL Laws LLM graduate, Dheemanth Vangimalla, wins the top award in the 4iP Council Research Awards 2023 for a paper based on his LLM research dissertation.

We are delighted to announce that Dheemanth Vangimalla, a recent UCL Laws graduate of the LLM in Intellectual Property Law has received the top award in the prestigious 4iP Council Research Awards for 2023 for his paper entitled ‘Plausibility and the flotilla: have the English courts drifted from the commodore’s approach to the evidential requirement for patent validity, and if so, is this divergence justified?’

The 4iP Council Research Award is an international research competition for European University students studying at Masters and PhD levels. It seeks to promote new ideas on topics pertinent to the interplay between intellectual property rights and innovation. Submissions, based on a student’s Masters or PhD research, are assessed by 4iP Council’s Research Award Jury made up of intellectual property experts from academia, government and industry. The papers are evaluated based on criteria including:

• Original thinking that broadens the debate on the chosen topic;
• High quality written expression; and
• Relevance to current IP problems and debate

and up to three prizes are awarded (winner and two runners-up).

In his winning paper, Dheemanth considered the origins of ‘plausibility’ and explored the evidential requirement that the term represents. His research revealed that there is divergence between the EPO and English courts in the evidential standard applied by the two decision-making bodies when assessing patent validity. He argues that the English courts adopting a higher standard lacks cogent justification as the standard neither reflects a balance between the competing objectives of the patent system nor limits a plausibility assessment to its targeted mischief. 

This paper was based on Dheemanth’s dissertation for his LLM in Intellectual Property Law, which was also recently awarded the IBIL Prize for Top Performance in an IP-related Research Essay on the LLM . During his LLM, Dheemanth was supervised by our IBIL scholarship PhD researcher, Joshua Bradley .

As part of the prize, the winning essay has been published on 4iP Council’s website , which will be accompanied by a podcast interview with the winners in due course.

Having completed his LLM in the summer of 2023, Dheemanth has been working as a Research Assistant at the UCL Institute of Brand and Innovation Law  (IBIL), while also completing his bar exams. He will join Three New Square Chambers in the autumn as a pupil barrister.

• Read Dheemanth’s paper here .
• Find out more about the 4iP Council Research Awards .

Rating Report

Nizhniy Novgorod Region

Wed 17 Dec, 2008 - 12:00 AM ET

Rating Rationale · The ratings of Nizhniy Novgorod Region reflect its well‐diversified local economy, sound budgetary performance and moderate debt burden. The ratings also factor in the expected debt burden increase and the deceleration of the national economy. · The region has a well‐diversified local economy with a strong industri...

We've detected unusual activity from your computer network

To continue, please click the box below to let us know you're not a robot.

Why did this happen?

Please make sure your browser supports JavaScript and cookies and that you are not blocking them from loading. For more information you can review our Terms of Service and Cookie Policy .

For inquiries related to this message please contact our support team and provide the reference ID below.