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System-Building in Investment Treaty Arbitration and Lawmaking

Published online by Cambridge University Press:  06 March 2019

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Since the late 1990s investment treaty arbitration has developed into one of the most vibrant fields of international dispute settlement with now almost 400 known cases. It involves claims by foreign investors against host States for breach of obligations assumed under one of the more than 2700 bilateral investment treaties (BITs), under the numerous investment chapters in bilateral or regional free trade agreements, including the North American Free Trade Agreement, or under sectoral treaties such as the Energy Charter Treaty. All of these instruments offer comprehensive protection to foreign investors by setting down principles of substantive investment protection, including national and most-favored-nation treatment, fair and equitable treatment, full protection and security, protection against expropriation without compensation, and free capital transfer. They also allow investors to enforce these standards in arbitral proceedings directly against the host State, most commonly under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Investment treaty arbitration thereby not only empowers foreign investors under international law, but also introduces investment treaty tribunals as novel actors into the arena of international investment law. Although arbitration has been a classic form of dispute settlement on the State-to-State level, including for the settlement of investment-related disputes, modern investment treaty tribunals have wider jurisdiction and are more removed from State control than any of their predecessors.

Type
II. Judicial Lawmaking for Economic Governance: The ICSID and the WTO
Copyright
Copyright © 2011 by German Law Journal GbR 

References

1 See United Nations Conference on Trade and Development (UNCTAD), Latest Developments in Investor-State Dispute Settlement, IIA Issues Note No. 1, 12 (2011), available at: http://www.unctad.org/en/docs/webdiaeia20113_en.pdf (recording an aggregate of 390 treaty-based investment disputes by the end of 2010).Google Scholar

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