Rules and practices of international investment law and arbitration / Yannick Radi.

Format:

Book

Author/Creator:

Radi, Yannick.

Series:

Law in context

The law in context series

Language:

English

Subjects (All):

Investments, Foreign (International law).

International commercial arbitration.

Physical Description:

lxxii, 508 pages ; 25 cm.

Place of Publication:

Cambridge : Cambridge University Press, 2020.

Contents:

Machine generated contents note: pt. I THE HISTORY AND SOURCES OF INTERNATIONAL INVESTMENT LAW AND ARBITRATION

1. The History of International Investment Law and Arbitration

Introduction

1.1. The Origin of International Investment Law and Arbitration

1.1.1. Societal Context

1.1.2. The Treatment of Foreign Private Persons by Host States

1.1.3. The Settlement of Disputes between Host States and Foreign Private Persons

1.2. The Emergence of International Investment Law and Arbitration

1.2.1. Societal Context

1.2.2. The Treatment of Foreign Investors by Host States

1.2.3. The Settlement of Disputes between Host States and Foreign Investors

1.3. The Rise and Crisis of International Investment Law and Arbitration

1.3.1. Societal Context

1.3.2. The Treatment of Foreign Investors by Host States and the Protection of Public Interests

1.3.3. The Settlement of Disputes between Host States and Foreign Investors

2. The Sources of International Investment Law and Arbitration

2.1. Primary Sources

2.1.1. Treaties

2.1.1.1. International Investment Agreements

a. Typology of International Investment Agreements

b. The Purpose of International Investment Agreements

c. The Content of International Investment Agreements

d. The Scope of Application of International Investment Agreements

2.1.1.2. Other Relevant Treaties

2.1.2. Customary International Law

2.1.2.1. The Relevance of Customary International Law

2.1.2.2. The Interplay between Customary International Law and Other Sources

a. The Interplay between Customary International Law and Treaties

b. The Interplay between Customary International Law and Arbitration Awards and Decisions

2.1.3. General Principles of Law Recognised by Civilised Nations

2.2. Subsidiary Sources

2.2.1. Judicial Decisions

2.2.2. Teaching of Publicists

2.3. Equity

2.4. Soft Law Instruments

pt. II THE SUBSTANTIVE PROTECTION OF FOREIGN INVESTMENTS AND PUBLIC INTERESTS

3. Introduction to the Substantive Rules Protecting Foreign Investments and Public Interests

3.1. Rules Pertaining to the Protection and Treatment of Foreign Investors and Investments

3.1.1. Promotion, Facilitation, Admission and Establishment

3.1.1.1. Promotion and Facilitation

3.1.1.2. Admission and Establishment

3.1.2. Protection

3.1.2.1. Main Rules

a. Standards of Treatment

b. Prohibition of Illegal Expropriation and Nationalisation

3.1.2.2. Other Rules

a. Prohibition of Performance and Managerial Requirements

b. Transparency

c. Reparation of Losses in Armed Conflict Situations and Internal Disorders

d. Repatriation and Transfer

e. Better Treatment Conferred by Another Instrument

3.2. Rules Pertaining to the Protection of Public Interests

3.2.1. Public Interest Limitations on Foreign Investors' Protection

3.2.1.1. Limitations Applicable to IIAs

a. Right to Regulate

b. General Exceptions

c. Security Exceptions

3.2.1.2. Limitations Applicable to Specific IIA Provisions

a. Expropriation

b. National Treatment and Most-Favoured-Nation Treatment

c. Repatriation and Transfer

d. Performance Requirements

3.2.2. Obligations to Respect and Protect Public Interests

3.2.2.1. Obligations upon States

a. Obligations Pertaining to Investors' Conduct

b. Obligations Pertaining to States' Conduct

3.2.2.2. Obligations upon Foreign Investors

a. Compliance with the Law

b. Corporate Social Responsibility

4. Promotion, Facilitation, Admission and Establishment

4.1. Promotion and Facilitation

4.2. Admission and Establishment

4.2.1. Admission and Establishment Governed by Host States' Domestic Law

4.2.2. Relative Right of Admission and Establishment Based on the Most-Favoured-Nation Treatment Standard

4.2.3. Relative Right of Admission and Establishment Based on the National Treatment and the Most-Favoured-Nation Treatment Standards

5. Standards of Treatment

5.1. The Fair and Equitable Treatment Standard

5.1.1. The Interplay between the FET Standard and the Customary Law Minimum Standard of Treatment

5.1.1.1. The Links between the FET Standard and the Customary Law Minimum Standard of Treatment in Treaty Practice

5.1.1.2. The Content of the Customary Law Minimum Standard of Treatment

a. Has the `Neer Formula' Ever Reflected the Customary Law Minimum Standard of Treatment?

b. Does the `Neer Formula' Reflect the Customary Law Minimum Standard of Treatment?

5.1.1.3. Ascertaining the Content of the Customary Law Minimum Standard of Treatment

a. Who Shall Determine the Content of the Customary Law Minimum Standard of Treatment?

b. How Shall the Content of the Customary Law Minimum Standard of Treatment Be Determined?

5.1.2. The Meaning and Content of the FET Standard

5.1.2.1. Casuistic Approach

5.1.2.2. Theoretical Approach

5.1.2.3. Material Approach

a. The Respect of Legitimate Expectations and Stability

b. The Prohibition of Procedural Impropriety

c. The Prohibition of Arbitrariness and Discrimination

d. The Prohibition of Duress, Coercion and Harassment

5.2. The Full Protection and Security Standard

5.2.1. The FPS Standard in Treaty Practice

5.2.2. The Characteristics of States' Obligations under the FPS Standard

5.2.2.1. The Nature of the Obligations

5.2.2.2. The Object of the Obligations

5.2.3. The Scope of the Obligations

5.2.3.1. Protection from Whom?

5.2.3.2. Protection against What?

5.3. The National Treatment Standard

5.3.1. The National Treatment Standard in Treaty Practice

5.3.2. The Application of the National Treatment Standard: Methodology and Reasoning

5.3.3. The Basis of Comparison

5.3.4. The Prohibited Differences of Treatment

5.3.4.1. The Appraisal of Less Favourable Treatments

5.3.4.2. The Features of Differential Treatments

5.3.4.3. The Justifications for Differential Treatments

5.4. The Most-Favoured-Nation Treatment Standard

5.4.1. The MFNT Standard in Treaty Practice

5.4.1.1. The `Beneficiaries' of the MFNT Standard

5.4.1.2. The `Benchmark' of the MFNT Standard

a. The `Origin' of Investors and their Investments

b. `Like Circumstances'

5.4.1.3. The Applicability of the MFNT Clause to Other IIA Provisions

5.4.2. The Applicability of the MFNT Clause to Other IIA Provisions: General Perspective

5.4.3. The Applicability of the MFNT Clause to IIA Provisions Delineating the Scope of Application of the Agreements

5.4.4. The Applicability of the MFNT Clause to IIA Substantive Provisions

5.4.5. The Applicability of the MFNT Clause to IIA Investor-State Dispute Settlement Provisions

5.5. The Umbrella Clause

5.5.1. The Umbrella Clause in Treaty Practice

5.5.1.1. The `Location' of the Umbrella Clause in IIAs

5.5.1.2. The Scope of Application of the Umbrella Clause

5.5.1.3. The Initiation of Arbitration Proceedings in Relation to the Umbrella Clause

5.5.2. The Types of Obligations and Commitments Covered by the Umbrella Clause

5.5.2.1. International Obligations and Commitments

5.5.2.2. Obligations and Commitments under Domestic Statutes and Regulations

5.5.3. Contractual Undertakings

5.5.3.1. The Coverage of Contractual Undertakings by the Umbrella Clause

a. Principled Approaches

b. The Distinction between Jure Imperii and Jure Gestionis State Conduct

c. Contracts Not Concluded by the Disputing Parties

5.5.3.2. The Effect of Contractual Exclusive Jurisdiction Clauses on Umbrella Clause Claims

6. The Protection against Illegal Expropriation

6.1. The Types of Property Protected against Illegal Expropriation

6.2. The Types of Expropriation

6.2.1. Direct Expropriation

6.2.2. Indirect Expropriation

6.2.2.1. The Types of State Measures

6.2.2.2. The Categories of Indirect Expropriation

6.2.2.3. The Identification of Instances of Indirect Expropriation

a. Treaty Practice

b. Arbitration Practice

6.3. The Conditions of Legality of Expropriation

6.3.1. Public Purpose

6.3.2. Due Process of Law

6.3.3. Non-Discrimination

6.3.4. Compensation

The Standard of Compensation

a. The Timing of the Payment of Compensation

b. The Adequacy of Compensation

c. The Effectiveness of Compensation

6.3.4.2. Valuation Methodology and Factors

6.3.4.3. Interest

6.3.4.4. The Status of Compensation as a Condition of Legality

7. Public Interest Limitations on Foreign Investors' Protection

7.1. Limitations Applying to IIAs

7.1.1. The Right to Regulate

7.1.1.1. The Scope of the Limitation

7.1.1.2. Conditions Attached to the Limitation

7.1.2. General Exceptions

7.1.2.1. The Scope of General Exceptions Provisions

7.1.2.2. Conditions Attached to General Exceptions

7.1.3. Security Exceptions

7.1.3.1. Security Exceptions Provisions in Treaty Practice

a. The Scope of Security Exceptions Provisions

b. The Character of the Security Exceptions

7.1.3.2. The Taking of Actions Necessary to Protect Essential Security Interests

a. The Scope of the Exception

b. The Character of the Exception

c. The Interplay between the Exception and `Necessity' as a Circumstance Precluding Wrongfulness under Customary International Law

7.1.4. Taxation

7.1.4.1. The Scope of the Limitation

Contents note continued: 7.1.4.2. The Identification of Taxation Measures

7.1.5. Public Debts

7.1.6. Financial and Monetary Matters

7.2. Limitations Applying to Specific IIA Provisions

7.2.1. Expropriation

7.2.2. Differential Treatment

7.2.2.1. National Treatment

7.2.2.2. Most-Favoured-Nation Treatment

7.2.3. Transfers

7.2.3.1. The Regulation of Society

7.2.3.2. Situations of Extreme Economic and Monetary Difficulties

7.2.4. Performance Requirements

8. Obligations to Protect and Respect Public Interests

8.1. Obligations upon States

8.1.1. Obligations Pertaining to States' Conduct

8.1.1.1. The Obligations to Protect Public Interests

8.1.1.2. The Obligations Not to Lower the Protection of Public Interests

b. The Key Features of Treaty Practice

8.1.2. Obligations Pertaining to Investors' Conduct

8.1.2.1. Corporate Social Responsibility

8.1.2.2. Court Proceedings

8.2. Obligations upon Investors

8.2.1. Corporate Social Responsibility

8.2.2. Compliance with the Law

9. Insurance against Political Risks

9.1. The Protection of Foreign Investors and Investments against Political Risks

9.1.1. Eligible Investments

9.1.1.1. Requirements Pertaining to Investments

9.1.1.2. Requirements Pertaining to Investors

9.1.1.3. Requirements Pertaining to Host States

9.1.2. Risks Covered

9.1.2.1. Currency Inconvertibility and Transfer

9.1.2.2. Expropriation

9.1.2.3. Contract

9.1.2.4. War and Civil Disturbance

9.1.3. Disputes and Dispute Settlement

9.1.3.1. The Types of Disputes

9.1.3.2. The Settlement of Disputes between Insurance Agencies and Host States

9.1.3.3. The Settlement of Disputes between Insurance Agencies and Insured Investors

9.2. The Protection of Public Interests against Harmful Investment Projects and Operations

9.2.1. The Review of Investment Projects

9.2.2. The Review of Ongoing Investment Operations

pt. III THE SETTLEMENT OF INVESTOR-STATE DISPUTES

10. Classification of Investment-Related Disputes and Dispute Settlement Mechanisms

10.1. Classification of Disputes

10.1.1. Definition of a `Dispute'

10.1.2. State-State Disputes

10.1.2.1. State-State Disputes Relating to Investor-State Disputes

10.1.2.2. `Direct' State-State Disputes

10.1.3. Investor-State Disputes

10.2. Classification of Dispute Settlement Mechanisms

10.2.1. `Traditional' Dispute Settlement Mechanisms

10.2.1.1. Mechanisms for `Single Disputes'

a. Local Courts

b. Diplomatic Protection

10.2.1.2. Mechanisms for `Sets of Disputes'

a. Claims Commissions and Tribunals

b. Lump-Sum Agreements

10.2.2. IIA Dispute Settlement Mechanisms

10.2.2.1. Mechanisms Available for the Settlement of State-State Disputes

a. The Settlement of Disputes Arising from the Interpretation and Application of IIA Provisions

b. The Settlement of Disputes Arising from the Application of Specific IIA Provisions Placing Obligations upon States to Respect Public Interests

10.2.2.2. Mechanisms Available for the Settlement of Investor

State Disputes

a. `Traditional' Practice

b. `New' Practices

11. Investor

State Arbitration: Historical, Institutional and Procedural Dimensions

11.1. The History of Investor

State Arbitration

11.1.1. The Emergence and Development of International Arbitration

11.1.1.1. State

11.1.1.2. International Commercial Arbitration

11.1.2. The Emergence and Consolidation of Investor

11.1.2.1. State Contracts and International Investment Agreements

11.1.2.2. The ICSID Convention

11.1.3. The Crisis of Investor

11.2. Institutional and Procedural Features of Investor

11.2.1. Dispute Settlement Centres and Arbitration Rules

11.2.1.1. Dispute Settlement Centres

a. `Specialised' Centre: The International Centre for Settlement of Investment Disputes

b. `Generalist' Centres

11.2.1.2. Arbitration Rules

a. ICSID Arbitration Rules

b. UNCITRAL Arbitration Rules

11.2.2. Arbitration Procedure

11.2.2.1. Arbitration Proceedings

a. The Initiation of Arbitration Proceedings

b. The Establishment of Arbitration Tribunals

c. The Course of Arbitration Proceedings

d. Closing and Discontinuance of Arbitration Proceedings

11.2.2.2. Deliberations and Awards

a. Deliberations

b. Awards

c. Costs

11.2.2.3. Post-Award Proceedings

a. Modification and Clarification of Awards

b. Annulment of Awards

11.2.2.4. Recognition and Enforcement of Awards

12. Applicable Law and Interpretation

12.1. Applicable Law

12.1.1. Choice of Applicable Law

12.1.2. Content of Applicable Law

12.1.2.1. `Law', `Rule of Law' and Amiable Composition

12.1.2.2. Practice

a. IIAs and Arbitration Rules

b. The Interplay between Domestic Law and International Law

c. Iura Novit Curia

12.2. Interpretation

12.2.1. The Purpose of Interpretation in Public International Law

12.2.2. Interpretation in International Investment Law and Arbitration

12.2.2.1. Interpretation under the VCLT

a. General Rule of Interpretation

b. Supplementary Means of Interpretation

c. Interpretation of Treaties Authenticated in Two or More Languages

12.2.2.2. Other Means of Interpretation

a. Effectiveness

b. Reasonableness

c. Legal Presumptions and Rules of Logic

d. Past Awards and Decisions

13. Provisional Measures

13.1. The Notion of Provisional Measures

13.1.1. The Types of Provisional Measures

13.1.2. Provisional Measures versus Emergency Arbitration

13.2. The Rights and Interests Protected by Provisional Measures

13.3. The Substantive Conditions to Grant Provisional Measures

13.3.1. Prima Facie Jurisdiction and Prima Facie Case on the Merits

13.3.1.1. Prima Facie Jurisdiction

13.3.1.2. Prima Facie Case on the Merits

13.3.2. Necessity

13.3.3. Urgency

13.3.4. Proportionality

13.4. Procedural Aspects and Legal Force of Provisional Measures

13.4.1. Procedural Aspects of Provisional Measures

13.4.2. Legal Force of Provisional Measures

14. Jurisdiction and Admissibility

14.1. Fundamental Notions and Principles

14.1.1. Consent

14.1.2. Jurisdiction and Admissibility

14.2. Formal Considerations on Jurisdiction

14.2.1. The Methodology for Appraising Jurisdiction

14.2.2. Standard and Burden of Proof

14.3. Substantive Aspects and Issues of Jurisdiction and Admissibility

14.3.1. The Offer to Arbitrate

14.3.1.1. The Conditions for Submitting a Dispute to Arbitration

a. The Types of Conditions

b. The Object and Nature of the Conditions

14.3.1.2. The Subject Matter of the Disputes Covered by the Offer

a. Disputes in Relation to an Investment

b. Disputes Relating to Investment Agreements, Authorisations and IIA Substantive Provisions

c. Disputes Relating to IIA Substantive Provisions

14.3.1.3. The Temporal Scope of the Disputes Covered by the Offer

14.3.2. Investment

14.3.2.1. `Investment' under International Investment Agreements

a. The Types of Assets

b. The Types of Conditions

14.3.2.2. `Investment' under the ICSID Convention

a. The Definition of `Investment' in Article 25

b. The Interplay between the ICSID Convention and IIAs

14.3.3. Investor

14.3.3.1. Natural Persons

a. Nationality and Citizenship

b. Permanent Resident

14.3.3.2. Legal Persons

a. The Types of Legal Persons

b. The Types of Links

14.3.3.3. States, Public Legal Persons, and Mixed Legal Persons

14.3.4. Investors' Conduct Impacting on Jurisdiction and Admissibility

14.3.4.1. Key Notions

a. Good Faith

b. Abuse of Rights and Abuse of Process

14.3.4.2. Acquisition of Assets

14.3.4.3. Initiation of Proceedings

a. Investment Restructuring

b. Multiple Proceedings

15. Investor

State Arbitration and the Law of State Responsibility: Attribution, Circumstances Precluding Wrongfulness and Reparation

15.1. Attribution

15.1.1. Conduct of State Organs

15.1.1.1. Public International Law Background: ARSIWA and its Commentaries

15.1.1.2. Investor

15.1.2. Conduct of Persons or Entities Exercising a Governmental Authority

15.1.2.1. Public International Law Background: ARSIWA and its Commentaries

15.1.2.2. Investor

15.1.3. Conduct of Persons or a Group of Persons Acting under the Instruction, Direction or Control of the State

15.1.3.1. Public International Law Background: ARSIWA and its Commentaries

15.1.3.2. Investor

15.1.4. Conduct Acknowledged and Adopted by a State as its Own

15.1.4.1. Public International Law Background: ARSIWA and its Commentaries

15.1.4.2. Investor

15.2. Circumstances Precluding Wrongfulness

15.2.1. Introduction to Circumstances Precluding Wrongfulness

15.2.2. Necessity

15.2.2.1. Public International Law Background: ARSIWA and its Commentaries

15.2.2.2. Investor

a. Conditions and Exclusions

b. Temporary Nature of `Necessity' and Compensation

15.3. Reparation

Contents note continued: 15.3.1. Public International Law Background: ARSIWA and its Commentaries

15.3.1.1. The Types of Legal Consequences of Internationally Wrongful Acts

a. Cessation and Non-Repetition

b. Reparation

15.3.1.2. The Forms of Reparation

a. Restitution

b. Compensation

c. Satisfaction

15.3.1.3. Interest

15.3.1.4. Contribution to the Injury

15.3.2. Reparation in IIA Practice

15.3.2.1. The Types of Damage Covered

15.3.2.2. The Forms of Reparation Provided

15.3.3. Reparation in Investor

15.3.3.1. Damage

a. Causation and Evidence

b. Categories of Damage

15.3.3.2. The Standard and Forms of Reparation

a. Full Reparation

b. Restitution

15.3.3.3. Compensation

a. The Standard of Compensation

b. The Nature of Valuation and the Approaches Thereto

c. Mitigating Circumstances

d. Interest

16. ICSID Convention Annulment Proceedings

16.1. Salient Features of Annulment

16.1.1. Purpose of Annulment

16.1.2. Scope of Annulment

16.1.3. Power of Annulment Committees

16.1.4. Procedural Aspects

16.2. Manifest Excess of Powers

16.2.1. What Is an Excess of Powers?

16.2.2. What Is a Manifest Excess of Powers?

16.3. Serious Departure from a Fundamental Rule of Procedure

16.3.1. What Is a Fundamental Rule of Procedure?

16.3.2. What Is a Serious Departure from a Fundamental Rule of Procedure?

16.4. Failure to State the Reasons on Which the Award Is Based

16.4.1. Applicable Test

16.4.2. Specific Grounds

16.4.2.1. Contradictory Reasons

16.4.2.2. Frivolous, Inadequate and Insufficient Reasons

16.4.2.3. Implicit Reasons

16.5. Improper Constitution of the Tribunal and Corruption on the Part of a Member of the Tribunal.

Notes:

Includes bibliographical references and index.

Other Format:

ebook version :

ISBN:

1107499577

9781107499577

9781107102101

1107102103

OCLC:

1193594475