Book contents
- Frontmatter
- Contents
- PART I International Court of Justice
- PART II International arbitration
- 12 A BIT about ICSID
- 13 The influence of bilateral investment treaties on customary international law
- 14 The United States 2004 Model Bilateral Investment Treaty: an exercise in the regressive development of international law
- 15 The United States 2004 Model Bilateral Investment Treaty and denial of justice in international law
- 16 Anti-suit injunctions in international arbitration: an overview
- 17 The law applicable in international arbitration: application of public international law
- 18 The validity of an arbitral award rendered by a truncated tribunal
- 19 The authority of a truncated tribunal
- 20 Injunction of arbitral proceedings and truncation of the tribunal
- 21 Public policy and arbitral procedure
- 22 The creation and operation of an International Court of Arbitral Awards
- 23 The Kingdom of Saudi Arabia and Aramco arbitrate the Onassis Agreement
- 24 The Southern Bluefin Tuna case
- 25 A celebration of the United Nations New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
- 26 Does the consent of the Contracting Parties govern the requirement of an “investment” as specified in Article 25 of the ICSID Convention?
- PART III Miscellaneous
- Collected publications, judicial opinions and book reviews
- Index
14 - The United States 2004 Model Bilateral Investment Treaty: an exercise in the regressive development of international law
from PART II - International arbitration
Published online by Cambridge University Press: 07 September 2011
- Frontmatter
- Contents
- PART I International Court of Justice
- PART II International arbitration
- 12 A BIT about ICSID
- 13 The influence of bilateral investment treaties on customary international law
- 14 The United States 2004 Model Bilateral Investment Treaty: an exercise in the regressive development of international law
- 15 The United States 2004 Model Bilateral Investment Treaty and denial of justice in international law
- 16 Anti-suit injunctions in international arbitration: an overview
- 17 The law applicable in international arbitration: application of public international law
- 18 The validity of an arbitral award rendered by a truncated tribunal
- 19 The authority of a truncated tribunal
- 20 Injunction of arbitral proceedings and truncation of the tribunal
- 21 Public policy and arbitral procedure
- 22 The creation and operation of an International Court of Arbitral Awards
- 23 The Kingdom of Saudi Arabia and Aramco arbitrate the Onassis Agreement
- 24 The Southern Bluefin Tuna case
- 25 A celebration of the United Nations New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
- 26 Does the consent of the Contracting Parties govern the requirement of an “investment” as specified in Article 25 of the ICSID Convention?
- PART III Miscellaneous
- Collected publications, judicial opinions and book reviews
- Index
Summary
Customary international law in respect of the treatment and taking of foreign investment before the era of the bilateral investment treaty customarily was contentious.
Capital-exporting States generally maintained that host States were bound under international law to treat foreign investment at least in accordance with the “minimum standard of international law”; and where the host State expropriated foreign property, it could lawfully do so only for a public purpose, without discrimination against foreign interests, and upon payment of prompt, adequate and effective compensation. Capital-importing States maintained that, in matters of the treatment and taking of foreign property, host States were not bound under international law at all; that the minimum standard did not exist; and that States were bound to accord the foreign investor only national treatment, only what their domestic law provided or was revised to provide. The foreign investor whose property was taken was entitled to no more than the taking State's law afforded.
The gulf between the positions of the capital-exporting States and those of the capital-importing States reached its extremity with the adoption by the United Nations General Assembly in 1974 of the Charter of Economic Rights and Duties of States.
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- Chapter
- Information
- Justice in International LawFurther Selected Writings, pp. 152 - 160Publisher: Cambridge University PressPrint publication year: 2011
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