Investment treaty arbitration as public international law : procedural aspects and implications / Eric De Brabandere.
2014
K3830 .B73 2014 (Map It)
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Details
Author
Title
Investment treaty arbitration as public international law : procedural aspects and implications / Eric De Brabandere.
Published
New York : Cambridge University Press, 2014.
Call Number
K3830 .B73 2014
ISBN
9781107066878 (hardback)
1107066875 (hardback)
1107066875 (hardback)
Description
xxiii, 230 pages ; 24 cm.
System Control No.
(OCoLC)875404435
Summary
"Investment treaty arbitration is fast becoming one of the most common methods of dispute settlement in international law. Despite having ancient roots, the private interests in international investment relations remain in conflict with the need for the recognition of the public international law features of the arbitral procedure. This book, which presents an account of investment treaty arbitration as a part of public international law - as opposed to commercial law - provides an important contribution to the literature on this subject. Eric De Brabandere examines the procedural implications of conceiving of investment treaty arbitration in such a way, with regards to issues such as the principles of confidentiality and privacy, and remedies. The author demonstrates how the public international law character of investment treaty arbitration derives from and has impacted upon the dispute settlement procedure"-- Provided by publisher.
"Investment treaty arbitration is fast becoming one of the most common methods of dispute settlement in international law. Despite having ancient roots, the private interests in international investment relations remain in conflict with the need for the recognition of the public international law features of the arbitral procedure. This book, which presents an account of investment treaty arbitration as a part of public international law - as opposed to commercial law - provides an important contribution to the literature on this subject"-- Provided by publisher.
"Investment treaty arbitration is fast becoming one of the most common methods of dispute settlement in international law. Despite having ancient roots, the private interests in international investment relations remain in conflict with the need for the recognition of the public international law features of the arbitral procedure. This book, which presents an account of investment treaty arbitration as a part of public international law - as opposed to commercial law - provides an important contribution to the literature on this subject"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (page 205-218) and index.
Record Appears in
Table of Contents
Acknowledgements
ix
Table of cases
x
List of abbreviations
xxii
Introduction
1
Disentangling the 'hybridity' of investment disputes
2
Investment treaty arbitration and public law analogies
4
Investment treaty arbitration as public international law
7
Aim and scope of the book
11
Structure of the book
13
pt. I
The public international law character of investment treaty arbitration
15
1.
The public international law foundation of investment treaty arbitration
17
1.1.
The principle and rationale of the direct access of foreign investors to investment treaty arbitration
17
1.1.1.
Non-state entities in international dispute settlement
18
1.1.2.
Diplomatic protection and the exhaustion of local remedies
19
1.1.3.
State consent and the direct access to investment treaty arbitration
21
1.2.
The public international law regime of investment treaty arbitration
24
1.2.1.
International investment treaties
25
1.2.2.
State responsibility under public international law
27
1.2.3.
Investment contracts
29
1.3.
Distinguishing the contract and treaty levels in investment treaty arbitration
31
1.3.1.
Differentiating contract claims from treaty claims
32
1.3.2.
When does a breach of contract amount to a treaty breach?
35
1.3.3.
'Umbrella clauses'
38
1.3.4.
Jurisdiction over contract claims and dispute settlement provisions in investment treaties
42
1.4.
The systemic distinction between investment treaty arbitration and international commercial arbitration
49
2.
The legal character of the direct access of foreign investors to investment treaty arbitration
55
2.1.
The distinction between substantive and procedural rights
56
2.2.
The right of direct access to investment treaty arbitration
60
2.2.1.
The 'derivative rights' and 'direct rights' theories
60
2.2.2.
Countering criticism of the 'derivative rights' theory
63
2.2.3.
Waiver of access to investment treaty arbitration
67
pt. II
Procedural aspects and implications of the public international law character of investment treaty arbitration
71
3.
The role, function and qualifications of arbitrators in investment treaty arbitration
73
3.1.
The selection and qualifications of arbitrators in investment treaty arbitration
74
3.1.1.
Selection and nationality of arbitrators
75
3.1.2.
Qualification requirements of arbitrators
77
3.2.
Independence and impartiality of arbitrators
80
3.2.1.
Independence and impartiality requirements in investment treaty arbitration
81
3.2.2.
Specific concerns of arbitral independence and impartiality in investment treaty arbitration
83
3.3.
Legal reasoning of awards in investment treaty arbitration
89
3.3.1.
The obligation to render a reasoned award
89
3.3.2.
The extended level of reasoning required in investment treaty arbitration
91
3.3.3.
Precedents and 'jurisprudence constante'
93
3.4.
Party autonomy and the powers of the arbitral tribunals
99
3.4.1.
The principle of jura novit curia
101
3.4.2.
Inquisitorial versus adversarial proceedings
110
4.
The applicable law and non-investment considerations in investment treaty arbitration
122
4.1.
The applicable law in investment treaty arbitration: basic principles
123
4.1.1.
Choice of the parties and Article 42(1) of the ICSID Convention
123
4.1.2.
Public international law as the applicable law
125
4.1.3.
The relevance of municipal law
126
4.2.
Non-investment norms in investment treaty arbitration: the consideration of human rights obligations by international investment tribunals
129
4.2.1.
The limited jurisdiction of international investment tribunals and human rights law as part of the applicable law
131
4.2.2.
Conflicts between human rights and investment obligations
136
5.
Transparency and public access in investment treaty arbitration
148
5.1.
Why investment treaty arbitration should be transparent and public
150
5.2.
Transparency versus confidentiality in investment treaty arbitration
153
5.2.1.
Public access to information and documents in investment treaty arbitration
153
5.3.
Non-disputing party access to investment treaty arbitration
160
5.3.1.
Public access to the hearings
161
5.3.2.
Non-disputing party submissions in investment treaty arbitration
163
6.
Public international law remedies in investment treaty arbitration
175
6.1.
Compensation in investment treaty arbitration
177
6.1.1.
The principle of full reparation'
177
6.1.2.
Forms of reparation
179
6.2.
Non-pecuniary remedies in investment treaty arbitration
183
6.2.1.
Can and should investment tribunals award non-pecuniary remedies in investment treaty arbitration?
183
6.2.2.
Non-pecuniary remedies in the practice of investment tribunals
187
6.3.
Moral damages in investment treaty arbitration
190
6.3.1.
Moral damages in the ILC Articles on the Responsibility of States
190
6.3.2.
Moral damages in investment treaty arbitration
193
Conclusion
202
Bibliography
205
Index
219