International Challenges in Investment Arbitration

Description

As the proverbial workhorse of international economic law, investment arbitration is heavily relied upon around the globe. It has to cope with the demands of increasingly complex proceedings. At the same time, investment arbitration has come under close public scrutiny in the midst of heated political debate. Both of these factors have led to the field of investment protection being subject to continuous changes. Therefore, it presents an abundance of challenges in its interpretation and application. While these challenges are often deeply rooted in the doctrinal foundations of international law, they similarly surface during live arbitral proceedings. International Challenges in Investment Arbitration serves not only as a collection of recently debated issues in investment law; it also deals with the underlying fundamental questions at the intersection of investment arbitration and international law. The book is the product of the 1st Bucerius Law Journal Conference on International Investment Law & Arbitration. It combines the current state of knowledge, new perspectives on the topic as well as practical issues and will be of interest to researchers, academics and practitioners in the fields of international investment law, international economic law, regulation and comparative law. Cover Half Title Title Page Copyright Page Table of Contents List of Figures List of Tables List of Contributors Preface PART I: The State in International and Investment Law 1. Rethinking the Relevance of Customary International Law to Issues of Nationality in Investment Treaty Arbitration A. Introduction B. The International Recognition of Nationality: Diplomatic Protection and Investment Treaty Arbitration Compared C. The Nature of the Rights Asserted in Diplomatic Protection and the Investment Treaty Regime D. Concluding Remarks 2. Investment Claims and Annexation of Territory: Where General International Law and Investment Law Collide? A. Introduction B. Where General International Law and Investment Law Potentially Collide: The Obligation of Non-Recognition and the Territorial Application of Investment Treaties C. Challenges for Arbitrators in Cases Involving Illegally Annexed Territory D. Conclusion 3. Exception Clauses in International Investment Agreements: A Case for Systemic Integration? A. Introduction B. Stocktaking: Exception Clauses in Recent IIAs C. Interpreting WTO-Like Exception Clauses with Reliance on WTO Law D. Conclusion E. Annex: List of surveyed IIAs 4. International Norms: A Defence in Investment Treaty Arbitration? A. Introduction B. Defining the Questions Relevant for the Integration of Extraneous Norms in Investment Treaty Arbitration C. Conceptualizing the Role of Extraneous Norms in Investment Treaty Arbitration D. Extraneous Norms and the Protection of Legitimate Expectations E. Conclusion 5. The Right to Regulate: Towards a (Not Entirely) New Regulatory Paradigm under Recent FTA Investment Chapters A. Introduction B. The Impetus for Moving Towards Greater Precision in Treaty Drafting C. Deconstructing the so-called ‘Return of the State’ D. Convergences and Divergences between the Investment Chapters of CPTPP, CETA, and EUSFTA E. Conclusion PART II: Investment Arbitration and the European Legal Order 1. A Comparative Law Approach as a Technique for Solving Conflicts between EU Law and Investment Arbitration: The Case of the ECtHR A. Introduction B. Comparative Law as a Method for Solving Conflicts C. Overlaps between the ECHR and EU Law D. Overlaps between EU Law and Investment Treaty Law E. Comparative Observations F. Conclusions 2. The Energy Charter Treaty and European Union Law: Mutually Supportive Instruments for Economic Cooperation or Schizophrenia in the ‘Acquis’? A. Introduction B. Electrabel v Hungary C. Recommendations D. Conclusion 3. The Need for Intra-EU Investment Protections A. Introduction B. Background C. Contrasting Protections D. Procedural Limitations E. Member State Proposal for an EU-Wide Investment Protection Mechanism F. Conclusion 4. Is One Permanent Instance Enough?: A Comparison between the WTO Appellate Body and the Proposed Investment Court System A. Parallels between the WTO Appellate Body and the ICS Appeal Tribunals B. Differences between the WTO Panels and the ICS Tribunals of First Instance C. Reasons for Establishing Two Permanent Tiers D. Reasons against Establishing Two Permanent Tiers E. Conclusion PART III: Practical Issues in Investor State Proceedings 1. The Appropriate Use of Bifurcation as a Means for Promoting Efficiency and Fairness in Investment Arbitration A. Introduction B. Bifurcation in Investment Arbitral Proceedings C. Tribunals’ Discretion to Bifurcate and the Quest for Appropriate Bifurcation D. Requirements for Bifurcation in Investment Case-Law E. A Standard for Appropriate Bifurcation and Some Open Issues about Its Application F. Conclusions 2. Effective Management of Mass Claims Arbitration – What We Could Learn from International Tribunals A. Overview B. Introduction C. Representative and Aggregate Proceedings – Differences D. Procedural Problems Related to Mass Claims E. International Tribunal’s Experience with Mass Arbitration Claims F. ICSID Tribunal Decisions – The Techniques Already Accepted G. Mass Claims Handling Techniques that Could be Applied by ICSID Tribunals H. Conclusion 3. The Impact of the Economic and Political Situation Prevailing in the Host State on Compensation and Damages under International Investment Law A. Basic Principles of Quantum in International Investment Law B. General Relevance of Adverse Economic and Political Circumstances for Quantum C. Recent Case Law in Relation to the DCF Valuation Approach D. Practical Aspects of Determining the Country Risk Premium E. Conclusion 4. The Impact of Third-Party Funding on an ICSID Tribunal’s Decision on Security for Costs A. Introduction B. What is an Order for Security for Costs? C. Does an ICSID Tribunal Have Authority to Order Security for Costs? D. Which Requirements must be Met before an ICSID Tribunal may Grant Security for Costs? E. Which Role does Third-Party Funding Play in the Assessment of Security for Costs Requests? F. Conclusion Rationalising Costs in International Arbitration: A Tall Order? A. What is the Role of the Arbitral Tribunal with Regard to Costs? B. What Can Arbitral Tribunals Do to Reduce Costs in Arbitration? C. Conclusion Index