The formation and identification of rules of customary international law in international investment law / Patrick Dumberry (Assoicate professor at the University of Ottowa ; Faculty of Law (Civil Law Section), Canada).
2016
K3830 .D86 2016 (Map It)
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Author
Title
The formation and identification of rules of customary international law in international investment law / Patrick Dumberry (Assoicate professor at the University of Ottowa ; Faculty of Law (Civil Law Section), Canada).
Published
Cambridge, United Kingdom : Cambridge University Press, 2016.
Copyright
©2016
Call Number
K3830 .D86 2016
ISBN
9781107138520 (hardback)
1107138523 (hardback)
1107138523 (hardback)
Description
xxix, 496 pages ; 24 cm.
System Control No.
(OCoLC)933211528
Summary
"Rules of customary international law provide basic legal protections to foreign investors doing business abroad. These rules remain of fundamental importance today despite the growing number of investment treaties containing substantive investment protection. In this book Patrick Dumberry provides a comprehensive analysis of the phenomenon of custom in the field of international investment law. He analyses two fundamental questions: how customary rules are created in this field and how they can be identified. The book examines the types of manifestation of State practice which should be considered as relevant evidence for the formation of customary rules and to what extent they are different from those existing under general international law. The book also analyses the concept of States' opinio juris in investment arbitration. Offering guidance to actors called upon to apply customary rules in concrete cases, this book will be of significant importance to those involved in investment arbitration"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 425-473) and index.
Record Appears in
Table of Contents
Foreword / Michael Wood
xv
Preface
xix
Acknowledgments
xxiii
List of abbreviations
xxv
Introduction
1
1.1.
scope of this book
1
1.2.
structure of this book
11
1.
concept of customary international law
14
1.1.
Introductory remarks: this book examines custom in the context of general international law
15
1.2.
nature of custom
18
1.2.1.
Custom is one of the sources of international law
18
1.2.2.
informal (and mysterious) way by which customary rules emerge
21
1.2.3.
role of consent in the development of customary rules
24
1.2.4.
Is there such a thing as `tacit' consent?
26
1.3.
double requirement of State practice and opinio juris
30
1.3.1.
traditional and modern approaches regarding the relevance of these two elements
30
1.3.2.
position adopted by investor-State arbitration tribunals and States
35
1.4.
customary rule needs to be proven by the party that alleges it
39
1.5.
role of judges in the formation and identification of customary rules
42
1.5.1.
role in revealing the existence of customary rules
43
1.5.2.
role in the development of customary rules
44
1.5.3.
practice of investment tribunals
47
1.6.
role of scholars in the identification of custom
55
2.
Dancing with the sources: the fascinating story of the relative importance of custom and treaties at different times in the evolution of international investment law
60
Introduction
60
2.1.
origin and the development of basic investment protections under custom
61
2.1.1.
historical foundation of the minimum standard of treatment
61
2.1.2.
emergence of a general prohibition against expropriation without compensation
67
2.2.
Challenges to existing customary rules on investment protection
69
2.2.1.
concerted attack led by newly independent States in the 1960s and 1970s
70
2.2.2.
impact assessment of the attack on existing rules
74
2.2.3.
One war casualty: the Hull formula
77
2.3.
From a lack of consensus on existing custom to the proliferation of BITs
79
2.3.1.
Combat fatigue or the sorry state of custom after the attacks
79
2.3.2.
roaring 1990s or the `treatification' of international investment law
81
2.3.3.
Change of heart: the paradox of why developing States started signing BITs
84
2.4.
Does custom still matter today in this age of treatification?
87
2.5.
`return' of custom?
91
2.6.
brief outline of existing customary rules of international investment law
92
2.6.1.
Scholarship on the existence of any such customary rules
92
2.6.2.
Minimum standard of treatment
96
2.6.2.1.
firmly established rule
97
2.6.2.2.
With an imprecise content
104
2.6.3.
General prohibition against expropriation without compensation
110
3.
State practice
116
Introduction
116
3.1.
Whose practice matters?
117
3.1.1.
Non-State actors do not directly participate in the creation of customary rules
118
3.1.2.
international legal personality of corporations and their international law-making powers
125
3.2.
basic requirements of State practice
128
3.2.1.
Uniform and consistent practice
129
3.2.2.
Extensive and representative practice
133
3.2.3.
time requirement
138
3.2.4.
One illustration: Is the fair and equitable treatment standard uniformly and consistently found in BITs?
140
3.2.4.1.
position adopted by tribunals and scholars on the customary status of the FET standard
140
3.2.4.2.
State practice is general, widespread and representative
145
3.2.4.3.
State practice is not uniform and consistent
148
3.3.
Manifestations of State practice
152
3.3.1.
Introductory remarks
152
3.3.1.1.
publicity requirement
152
3.3.1.2.
Omissions count as practice
153
3.3.2.
various forms of State practice and their relative weight
155
3.3.3.
International treaties
159
3.3.3.1.
Interaction between custom and treaties under general international law
160
3.3.3.1.1.
Treaties can contribute to the formation of new rules of customary international law
163
3.3.3.1.2.
treaty can codify existing customary rules
168
3.3.3.2.
Interaction between custom and treaties under international investment law
171
3.3.3.2.1.
Can rules contained in BITs transform into customary rules?
172
3.3.3.2.1.
position of tribunals and scholars
172
3.3.3.2.1.2.
necessary conditions for such a transformation to occur
176
3.3.3.2.1.3.
One illustration: Has the fair and equitable treatment standard clause transformed into a customary rule?
182
3.3.3.2.2.
When taken together do all BITs represent the new custom?
188
3.3.3.2.2.1.
arguments advanced by those supporting the proposition equalling custom and BITs
189
3.3.3.2.2.2.
few basic arguments against the proposition
192
3.3.3.2.2.3.
BITs do not fulfil the double requirements of uniform and consistent State practice and opinio juris
196
3.3.3.2.2.4.
States reject the proposition that BITs represent custom
200
3.3.3.2.2.5.
Conclusion
202
3.3.4.
Statements by States
205
3.3.4.1.
Statements under international law
205
3.3.4.1.1.
Are statements evidence of State practice?
206
3.3.4.1.2.
relative weight to be given to statements depends on the circumstances
210
3.3.4.1.3.
Typology of different statements
211
3.3.4.2.
Statements in Investor-State arbitration
216
3.3.4.2.1.
Introductory remarks: Some types of statements that are important in international law are less relevant in investor-State arbitration
217
3.3.4.2.2.
State pleadings in arbitration proceedings
220
3.3.4.2.2.1.
relative weight to be given to pleadings depends on the circumstances
221
3.3.4.2.2.2.
Arbitral awards examining pleadings
224
3.3.4.2.3.
Interventions of non-disputing treaty parties during arbitration proceedings
227
3.3.4.2.3.1.
relative weight to be given to such interventions depends on the circumstances
229
3.3.4.2.3.2.
Arbitral awards examining such interventions
231
3.3.4.2.4.
Official statements made by parties to a treaty
235
3.3.4.2.4.1.
relative weight to be given to official statements depends on the circumstances
235
3.3.4.2.4.2.
Arbitral awards examining such statements
237
3.3.4.2.5.
Joint statements by parties to a treaty on matters of interpretation
245
3.3.4.2.5.1.
relative weight to be given to joint statements depends on the circumstances
247
3.3.4.2.5.2.
Arbitral awards examining such statements
248
3.3.4.2.6.
Model BITs adopted by States
251
3.3.5.
Activities within international organizations
257
3.3.5.1.
State conduct within international organizations can be evidence of State practice
258
3.3.5.2.
practice of international organizations and the formation of customary rules
261
3.3.6.
Internal national practice of States
267
3.3.6.1.
Executive
268
3.3.6.2.
Legislative
268
3.3.6.3.
Judiciary
273
3.3.6.3.1.
International law
273
3.3.6.3.2.
Investor-State arbitration
279
3.4.
Investment arbitration arbitral awards
283
4.
Opinio juris
292
Introduction
292
4.1.
Opinio juris under International law
293
4.1.1.
well-recognized requirement but nevertheless difficult to assess
293
4.1.2.
Scholarly battle on the relevance of opinio juris
297
4.1.3.
chronological paradox and one possible solution
302
4.1.4.
reasons why it is necessary to demonstrate opinio juris
305
4.1.5.
Manifestations of opinio juris
309
4.1.5.1.
Opinio juris can be demonstrated by State practice
311
4.1.5.2.
problem of `double-counting'
316
4.2.
Opinio juris in investor-State arbitration
321
4.2.1.
practice of arbitral tribunals and the position of States
322
4.2.2.
role played by opinio juris in the transformation of treaty-based norms into custom
325
4.2.2.1.
Which States' opinio juris matters and what needs to be demonstrated
326
4.2.2.2.
Examples of where to find States' opinio juris
330
4.2.3.
Do States have any opinio juris when they sign BITs?
334
4.2.3.1.
States sign BITs to protect their own interests, not out of any sense of obligation
335
4.2.3.2.
Other reasons given by scholars to explain States' lack of opinio juris
337
4.2.3.3.
Alternative theories put forward by scholars in support of the claim that States have an opinio juris when signing BITs
340
4.2.3.3.1.
States' opinio juris is embodied in their practice
341
4.2.3.3.2.
States' opinio juris exists because it represents their general interests
346
5.
fundamental importance of customary rules in international investment law
351
Introduction
351
5.1.
Traditional reasons for the remaining importance of custom
352
5.1.1.
Custom is the applicable legal regime in the absence of any BIT
352
5.1.2.
Many BITs make explicit reference to custom
354
5.1.3.
Custom plays a gap-filling role
364
5.2.
Arbitral tribunals always have to take into account custom to resolve disputes
368
5.2.1.
Arbitration under a State contract
369
5.2.2.
Arbitration under the host State's law
374
5.2.3.
Arbitration under an investment treaty
376
5.3.
limits of custom: no access to international arbitration without the host State's consent
383
5.4.
Can a State claim the status of persistent objector?
392
5.4.1.
concept of persistent objector in international law
393
5.4.2.
application of the concept of persistent objector in the context of international investment law
396
5.4.2.1.
Arbitration cases where the argument was raised
397
5.4.2.2.
Reasons for rejecting the application of the concept in arbitration proceedings
401
General conclusion
406
C.1.
remaining fundamental importance of custom in the present age of `treatification'
406
C.2.
importance of the question of the formation and identification of customary rules
409
C.3.
Comparing custom formation and identification in investment arbitration and general international law
411
C.3.1.
basic principles regarding the formation of customary rules in investment arbitration are not different from those applicable in general international law
412
C.3.2.
Some aspects regarding the identification of customary rules in investment arbitration are different from international law while others are similar
414
C.3.2.1.
role played by treaties in the formation of customary rules is the same in both fields
415
C.3.2.2.
States' opinio juris manifests itself in the same way in both fields
417
C.3.2.3.
conduct of States within international organizations and the internal national practice of States only play a limited role in the creation of custom in investment arbitration
420
C.3.2.4.
types of statements by States that matter as evidence of State practice are different in investment arbitration
422
Bibliography
425
Index
474