International Investment Law and Arbitration Commentary Awards and other Materials 2nd Edition by Lim, Jean Ho, Martins Paparinskis 1108911528 9781108911528

1 The Origins of Investment Protection and International Investment Law

Chapter Outline

Introduction

1. Diplomatic Espousal and Mixed or Similar Commissions

1.1 Diplomatic Espousal

1.2 Diplomatic Espousal and Diplomatic Settlement

1.3 Mixed International Commissions, National Commissions and Modern Claims Settlement

2 Legal Uncertainty and the Conflicting Attempts to Restate the Law in the United Nations (1945–19

2.1 Legal Chaos

2.2 Efforts at the United Nations

3. The Creature of the ‘Internationalised’ Contract

4. Reaching for Treaty-Based Investor–State Arbitration

5. ICSID, International Courts and Other Modern Institutions

6. The Nature of Investment Treaty Arbitration and the Sources of the International Law on Foreign I

Conclusion

Questions

Suggestions for Further Reading

2 Investment Contracts and Internationalisation

Chapter Outline

Introduction

1. Key Awards on Internationalisation

2. The Backlash against Internationalisation

3. Types of Investment Contract

3.1 Natural Resource Concessions

3.2 Public Service Concessions

3.3 Build-Operate-and-Transfer (BOT) Contracts

3.4 Public–Private Partnerships (PPPs)

Conclusion

Questions

Suggestions for Further Reading

3 The Metamorphosis of Investment Treaties

Chapter Outline

Introduction

1. Creation: 1959–1990

1.1 The Earliest Investment Treaties

1.2 The ICSID Convention

1.3 Draft Multilateral Investment Treaties

2. Accelerated Growth: 1990s–2007

2.1 Partial Convergence in Treaty Content

2.2 Claims against Host States and Jurisprudence (In)constante

3. ‘Resistance and Change’: 2007 and Beyond

3.1 Cracks in the Investment Treaty Regime

3.2 Changes in the Investment Treaty Regime

Conclusion

Questions

Suggestions for Further Reading

4. Investment Dispute Settlement

Chapter Outline

Introduction

1. Investment Arbitration as a Principal Means of Settlement Today

1.1 An Unusual Feature in Investment Arbitration

1.2 ‘Arbitration without Privity’

2. Consent to Investment Arbitration

2.1 Forms of Consent and Agreement to Investment Arbitration

2.2 The Writing Requirement

3. Electa una via (‘Fork-in-the-Road’) Clauses, ‘No U-Turn’ Clauses and Other Procedural Pre

3.1 Dispute Clauses and Procedural Preconditions

3.2 Exhaustion of Local Remedies

3.3 ‘Fork-in-the-Road’ Clauses, ‘No U-Turn’ Clauses and the Problem of Parallel Proceedings

4. Contractual Forum Selection Clauses

5. The Call for a Return to Adjudication, and Other Investment Dispute Settlement Bodies

6. ICSID versus Ad Hoc Arbitration

Conclusion

Questions

Suggestions for Further Reading

5 Jurisdiction, Admissibility and Parallel Proceedings

Chapter Outline

Introduction

1. ‘Jurisdiction and Admissibility’

2. Consequences of the Distinction

2.1 No Consequence

2.2 Consequence for Post-Request Developments

2.3 Consequence for Handling Objections

2.4 Consequence for Stay

2.5 Consequence for Challenges

3. Procedure for Addressing Objections to Jurisdiction and Admissibility

3.1 Bifurcation between Preliminary Objections and Merits

3.2 Claims Manifestly without Legal Merit

4. Objections to Jurisdiction and Admissibility

4.1 Investor

4.2 State

4.3 Investment

4.4 Consent and Other Issues

5. Parallel Proceedings

5.1 Consent by Disputing Parties

5.2 Special Treaty Rules

5.3 No Issue

5.4 Sequential Proceedings: Collateral Estoppel/Res Judicata

5.5 Parallel Proceedings: Abuse of Process

5.6 Remedies

Conclusion

Questions

Suggestions for Further Reading

6 Applicable Laws

Chapter Outline

Introduction

1. Lex causae

1.1 Sources of Laws

1.2 Interplay of Laws

1.2.1 Configuration 1 – Matching Each Head of Claim to Its Governing Law

1.2.2 Configuration 2 – Renvoi to National Law

1.2.3 Configuration 3 – Composite National-International Law

1.3 Arbitral Mandate and Choice-of-Laws

2. Lex arbitri

3. Lex loci arbitri

Conclusion

Questions

Suggestions for Further Reading

7 Arbitrators

Chapter Outline

Introduction

1. Who Are the Arbitrators?

2. Appointment of Arbitrators

2.1 ICSID

2.2 UNCITRAL/Permanent Court of Arbitration

3. Challenge Brought against Arbitrators: Procedure

3.1 ICSID

3.2 Non-ICSID

4. Challenge Brought against Arbitrators: Substance

4.1 ICSID

4.2 Non-ICSID

5. Challenge Brought against Arbitrators: Issues

5.1 Arbitrators and Parties

5.2 Arbitrators and Déjà Vu

5.3 Arbitrators and Double-Hatting

Conclusion

Questions

Suggestions for Further Reading

8 Evidence

Chapter Outline

Introduction

1. The Burden of Proof

1.1 Onus Probandi Actori Incumbit

1.2 The ‘Vanishing’ Burden

1.2.1 The RosInvestCo Arbitration

1.2.2 The Hulley, Yukos and Veteran Petroleum Arbitrations

1.3 The ‘Shifting’ Burden

2. The Standard of Proof

2.1 Balance of Probabilities

2.2 Circumstantial Evidence

2.3 No Evidence

Conclusion

Questions

Suggestions for Further Reading

9 Provisional Measures

Chapter Outline

Introduction

1. Interim Measures and Sovereign Respondents

2. Recourse to National Courts and the Power of ICSID Tribunals

3. Other Types of Relief

4. The Test Applied by Tribunals

Conclusion

Questions

Suggestions for Further Reading

10 Protected Investments

Chapter Outline

Introduction

1. The Subjective Meaning of Protected Investments

2. The Objective Meaning of Protected Investments

2.1 The ICSID Tests

2.2 The Non-ICSID Test

3. The Dual Meaning of Protected Investments

3.1 Binding Objective Criteria

3.2 Illustrative Objective Criteria

Conclusion

Questions

Suggestions for Further Reading

11 Protected Investors

Chapter Outline

Introduction

1. Nationality-Based Eligibility for Protection

1.1 Form – Critical Date(s) of Nationality Possession

1.2 Substance – Circumstances of Nationality Acquisition

1.2.1 ‘Round-Tripping’

1.2.2 Litigation-Oriented Nationality Acquisition

2. Individual Investors

2.1 Authentication of Nationality

2.2 Dual Nationality and Permanent Residents

3. Corporate Investors

3.1 Place of Incorporation

3.2 Foreign Control

4. ‘Divisible’ Investors

Conclusion

Questions

Suggestions for Further Reading

12 Fair and Equitable Treatment, and Full Protection and Security

Chapter Outline

Introduction

1. Relationship with an International Minimum Standard of Treatment

1.1 The ‘Minimum Standard’ of Treatment

1.2 Fair and Equitable Treatment

1.3 Full Protection and Security

2. The Heads of Claim under FET and FPS, Their Evolution and Interrelationship

2.1 Heads of Claim under FET

2.1.1 Arbitrary and Discriminatory Treatment

2.1.2 Violation of Due Process and Lack of Transparency

2.1.3 Is There a Requirement of ‘Bad Faith’ on the Part of the Host State?

2.1.4 Recent Developments in the Scope of the FET Rule: Protecting Investors’ Legitimate Expectati

2.2 Full Protection and Security

2.3 Interrelationship of FET and FPS beyond Physical Security

3. ‘Narrowing Down’ FET: Some Recent Examples of Treaty Clauses

4. ‘Qualified’ and ‘Unqualified’ Treaty Clauses, and the Interaction of Treaty and Custom

4.1 NAFTA and the ‘North American’ Model of ‘Qualified’ Treaty Clauses

4.2 ‘Unqualified’ FET Treaty Clauses and Their Relationship with International Custom

Conclusion

Questions

Suggestions for Further Reading

13 Contingent Standards: National Treatment and Most-Favoured-Nation Treatment

Chapter Outline

Introduction

1. Nine Lives of National Treatment

1.1 National Treatment

1.2 Expropriation

1.3 Fair and Equitable Treatment

1.4 Other Examples

2. Interpretation and Application of National Treatment

2.1 Like Circumstances

2.2 Distinctions in Treatment

2.3 Justification

3. Most-Favoured-Nation Treatment and Primary Obligations

4. Most-Favoured-Nation Treatment and International Dispute Settlement

4.1 Applicable, with Public Policy Exceptions

4.2 Inapplicable, Unless Explicitly Provided For

4.3 Applicable to Admissibility, but Not to Jurisdiction

4.4 Applicable to Objectively Unfavourable Treatment

4.5 Recent Developments

Conclusion

Questions

Suggestions for Further Reading

14 Expropriation

Chapter Outline

Introduction

1. The Object of Expropriation

1.1 Property Rights

1.2 Contractual Rights

1.2.1 Contract as Property

1.2.2 Sovereign Contractual Interference

1.3 Shareholder Rights

2. The Existence of Expropriation

2.1 Direct Expropriation

2.2 Indirect Expropriation

3. The Legality of Expropriation

3.1 Public Purpose

3.2 Compensation

3.2.1 The Rule of Compensation for Expropriation

3.2.2 The First Exception to the Rule of Compensation for Expropriation: Investment Valued at Nil

3.2.3 The Second Exception to the Rule of Compensation for Expropriation: Regulatory Taking

3.3 Due Process

3.4 Circumstances Precluding Wrongfulness and Non-Precluded Measures

4. Judicial Expropriation

Conclusion

Questions

Suggestions for Further Reading

15 Umbrella Clauses

Chapter Outline

Introduction

1. The Umbrella Clause

2. The Awards

2.1 SGS v. Pakistan

2.2 SGS v. Philippines

2.3 A Matter of Treaty Construction?

2.4 The Spectre of ‘the Two SGS Arbitrations’ Lurks

2.5 Distinguishing Treaty Law from Contract Law

2.6 Forum Selection Clauses

3. Examples of Umbrella Clauses

Conclusion

Questions

Suggestions for Further Reading

16 Defences

Chapter Outline

Introduction

1. Concepts of Defences

2. Defences in Obligations

3. Defences in Exceptions

3.1 Non-Precluded-Measures Clause

3.2 Modern Exceptions

4. Defences in Circumstances Precluding Wrongfulness

4.1 Consent

4.2 Countermeasures

4.3 Necessity

4.4 Consequences

Conclusion

Questions

Suggestions for Further Reading

17 Remedies

Chapter Outline

Introduction

1. The Principle of Full Reparation for Internationally Wrongful Acts

2. Compensation and Restitution

2.1 Compensation for Expropriation

2.2 Compensation for Violations of Other Treaty Standards

2.3 Moral and Punitive Damages

3. Methods of Valuation

3.1 Discounted Cash Flow (DCF)

3.2 Damnum Emergens Plus Lucrum Cessans (DELC)

4. Interest

Conclusion

Questions

Suggestions for Further Reading

18 Costs and Legal Fees

Chapter Outline

Introduction

1. The Question of Costs in the Context of Investment Arbitration

2. Types of Costs

2.1 ‘Arbitration Costs’ or ‘Costs of the Proceedings’

2.2 ‘Legal’ or ‘Party’ Costs

3. Cost Allocation by the Tribunal

3.1 UNCITRAL and ICSID Rules

3.2 Tribunal Considerations

4. The ‘Loser-Pays’ Principle, or ‘Costs after the Event’

5. Security for Costs

Conclusion

Questions

Suggestions for Further Reading

19 Challenging and Enforcing Awards, and the Question of Foreign State Immunities

Chapter Outline

Introduction

1. ICSID and ‘Non-ICSID’ Awards

2. ‘Non-ICSID’ Arbitration

3. ICSID Arbitration

4. Foreign State Immunity, Act of State and Non-Justiciability

4.1 Foreign State Immunity

4.2 Pleas of Act of State and Non-Justiciability

5. Attachment of Assets: The ‘Final Refuge’

Conclusion

Questions

Suggestions for Further Reading

20 New Directions in International Investment Law and Arbitration

Chapter Outline

Introduction

1. The Backlash

1.1 The Backlash to NAFTA and in the United States, 2001–2004

1.2 The Global Backlash Begins in Earnest, 2007 to Date

1.3 The Treaty Terminations Begin

2. The New Treaty Clauses

2.1 Reform of Treaty Substantive Rules in Recent Treaties

2.1.1 Reform of the FET Rule

2.1.2 Reform of the Expropriation Rule

2.1.3 Other Innovations in Substantive Standards of Treaty Protection

2.1.4 Enter the United States–Mexico–Canada Agreement

2.2 Procedural Innovations

3. The European Proposal for a Multilateral Investment Court

Conclusion

Questions

Suggestions for Further Reading

Index