Table of Contents
Table of Cases xvii
Table of Treaties, Conventions, Resolutions, and Rules xxix
List of Abbreviations xli
Nature, Evolution, and Context of International Investment Law 1
International Investment Law as a Field of Study 1
The Business Nature of a Foreign Investment: A Long-Term Risk 3
Host State Sovereignty and the Rules of Foreign Investment 7
Customary International Law: The Emergence of a Minimum Standard 11
Treaty Law: Evolution and Purpose 17
Current Trends in Treaty Practice 24
Regional Agreements: Energy Charter, NAFTA 27
Interpretation and Application of Investment Treaties 31
Interpreting Investment Treaties 31
Methods of Treaty Interpretation 31
Travaux Preparatoires 33
Interpretative Statements 34
The Authority of 'Precedents' 35
Towards a Greater Uniformity of Interpretation 37
Application of Investment Treaties in Time 38
Inter-Temporal Application of Treaties in General 38
Different Inter-Temporal Rules for Jurisdiction and Substance 39
The Date Relevant to Determine Jurisdiction 41
Relevant Dates under the ICSID Convention 41
Inter-Temporal Rules in Other Treaties 43
Investors and Investments 46
Investors: Individuals, Companies, Nationality, and Shareholders 46
Private Foreign Investors 46
Nationality of Individuals 47
Nationality of Corporations 49
Article 25(2)(b) of the ICSID Convention: Agreement to Treat a Local Company as a Foreign National because of Foreign Control 52
Nationality Planning and Denial of Benefits 54
Shareholders as Investors 56
Investment 60
The Concept of an Investment 60
Definitions in Investment Protection Treaties 62
Case Law 65
Investment Contracts 72
Types of Investment Contracts 72
Applicable Law 73
Stabilization Clauses 75
Renegotiation/Adaptation 77
Admission and Establishment 79
The Move towards Economic Liberalism 79
Treaty Models of Admission 80
Performance Requirements 82
Non-Compliance by Investor with Host State Law and International Public Policy 84
Expropriation 89
The Right to Expropriate 89
The Three Branches of the Law 90
The Legality of the Expropriation 90
Direct and Indirect Expropriation 92
Broad Formulae: Their Substance and Evolution 92
Judicial and Arbitral Practice: Some Illustrative Cases 96
Effect or Intention? 101
Legitimate Expectations 104
The Issue of Control: Partial Expropriation? 106
General Regulatory Measures 109
Duration of a Measure 112
Creeping Expropriation 114
Expropriation of Contractual Rights 115
Standards of Protection 119
Fair and Equitable Treatment 119
History of the Concept 119
Heterogeneity of Treaty Language 121
Nature and Function 122
Fair and Equitable Treatment and Customary International Law 124
The Evolution of the Fair and Equitable Treatment Standard 128
Attempts at Defining Fair and Equitable Treatment 130
Methodological Issues 133
Specific Applications of the Fair and Equitable Treatment Standard 133
Transparency, Stability, and the Protection of the Investor's Legitimate Expectations 133
Compliance with Contractual Obligations 140
Procedural Propriety and Due Process 142
Good Faith 144
Freedom from Coercion and Harassment 147
Conclusion 148
Full Protection and Security 149
Concept 149
Protection against Physical Violence and Harassment 150
Legal Protection 151
Relationship to Customary International Law 152
The Umbrella Clause 153
Access to Justice, Fair Procedure, and Denial of Justice 162
Emergency, Necessity, Armed Conflicts, and Force Majeure 166
Customary International Law 166
Treaty Law 167
The ILC Articles on State Responsibility 168
Necessity 168
Force Majeure 171
Preservation of Rights 172
Arbitrary or Discriminatory Measures 173
The Meaning of Arbitrary Measures 173
Relationship to Fair and Equitable Treatment and to Customary International Law 175
The Meaning of Discriminatory Measures 176
National Treatment 178
General Meaning 178
Application 179
The Basis of Comparison 180
The Existence of a Differentiation 181
Is there a Justification for the Differentiation? 181
The Relevance of Discriminatory Intent 183
The Relevance of WTO Case Law 184
Most-Favoured-Nation Treatment 186
Introduction 186
Variations of MFN Clauses 187
Method of Interpretation 188
Invoking Substantive Rights 188
Current State of the Law 190
Transfer of Funds 191
State Responsibility and Attribution 195
Organs, Provinces, and Municipalities 195
State Organs 196
Provinces and Municipalities 197
State Entities 198
The Role of State Entities 198
Structure, Function, and Control 200
Judicial Practice on Attribution 201
State Responsibility for Failure to Protect 204
Party Status for Constituent Subdivisions or Agencies under the ICSID Convention 205
Political Risk Insurance 207
Settling Investment Disputes 211
State v State Disputes 211
Diplomatic Protection 211
Direct Disputes between States 213
Investor v State Disputes 214
The Role of Domestic Courts 214
The Limited Usefulness of Domestic Courts 214
The Requirement to Resort to Domestic Courts 215
The Fork in the Road 216
Selection of Domestic Courts in Contracts 217
Arbitration and Conciliation 220
Arbitration Institutions and Regimes 222
ICSID 222
ICSID Additional Facility 224
Non-ICSID Investment Arbitration 225
The International Chamber of Commerce 227
The London Court of International Arbitration 227
UNCITRAL Rules 227
The Iran-United States Claims Tribunal 228
The Permanent Court of Arbitration 229
The Subject Matter of the Dispute (Jurisdiction Ratione Materiae) 230
The Dispute 230
The Legal Nature of the Dispute 230
The Directness of the Dispute in Relation to the Investment 231
The Investment 233
The Parties to the Dispute (Jurisdiction Ratione Personae) 233
The Host State 234
The Investor 235
The Investor's Nationality 236
The Significance of the Additional Facility 238
Consent to Arbitration 238
Consent by Direct Agreement 239
Consent through Host State Legislation 240
Consent through Bilateral Investment Treaties 242
Consent through Multilateral Treaties 243
The Scope of Consent 244
Procedural Conditions to Consent 247
The Interpretation of Consent 251
The Applicability of MFN Clauses to Dispute Settlement 253
Procedure 257
Provisional Measures 262
Applicable Law 265
Damages and Compensation 271
Costs 276
Challenge and Review of Decisions 277
Review in non-ICSID Arbitration 278
Annulment under the ICSID Convention 279
Excess of Powers 281
Serious Departure from a Fundamental Rule of Procedure 283
Failure to State Reasons 284
Resubmission to a New Tribunal 285
Supplementation and Rectification under the ICSID Convention 286
Interpretation under the ICSID Convention 286
Revision under the ICSID Convention 287
Enforcement of Awards 287
Annexes 291
Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) (March 1965) 291
Energy Charter Treaty (Parts I, III, V) (December 1994) 314
North American Free Trade Agreement (NAFTA), Chapter XI (December 1992) 330
Agreement between the People's Republic of China and the Government of [...] on the Promotion and Protection of Investments (Chinese Model BIT) (2003) 352
Accord entre le Gouvernement de la Republique Francaise et le Gouvernement de [...] sur l'Encouragement et la Protection Reciproques des Investissements (French Model BIT) (2006) 360
Treaty between the Federal Republic of Germany and [...] Concerning the Encouragement and Reciprocal Protection of Investments (German Model BIT) (2005) 368
Draft Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of [...] for the Promotion and Protection of Investments (UK Model BIT) (2005) 376
Treaty between the Government of the United States of America and the Government of [...] concerning the Encouragement and Reciprocal Protection of Investment (US Model BIT) (2004) 385
Index 421
