Proportionality and Deference in Investor-state Arbitration PDF Download

Author: Caroline Henckels
Publisher:
ISBN: 9781316437988
Category : International commercial arbitration
Languages : en
Pages :

View

Book Description
In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.

Author: Gebhard Bücheler
Publisher: Oxford University Press, USA
ISBN: 0198724330
Category : Law
Languages : en
Pages : 369

View

Book Description
While international investment law is one of the most dynamic and thriving fields of international law, it is increasingly criticized for failing to strike a fair balance between private property rights and the public interest. Proportionality is a tool to resolve conflicts between competing rights and interests. This book assesses its current role, its potential, and its limits in investor-State arbitration. Proportionality is often lauded for reconciling colliding interests. This book identifies three factors arbitrators should consider before engaging in a proportionality analysis: the rule of law, the risk of judicial law-making, and the availability of a value system that guides the proportionality analysis. Apart from making suggestions when arbitrators should apply proportionality and when not to, the book outlines what States can do to recalibrate the balance between private property rights and the public interest if they wish to do so without dismantling the current system of investor-State arbitration. Proportionality in Investor-State Arbitration considers whether and to what extent the notion of general principles of law within the meaning of Article 38(1)(c) of the ICJ Statute and the concept of systemic integration enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties provides a valid legal foundation for applying proportionality in investor-State arbitration.

Author: Caroline Henckels
Publisher: Cambridge University Press
ISBN: 1107087902
Category : Law
Languages : en
Pages : 265

View

Book Description
Caroline Henckels examines how investment tribunals should balance competing state and investor interests in determining state liability in regulatory disputes.

Author: Valentina Vadi
Publisher: Edward Elgar Publishing
ISBN: 1785368583
Category : LAW
Languages : en
Pages : 352

View

Book Description
International investment law is one of the most dynamic fields of international law, and yet it has been criticised for failing to strike a fair balance between private and public interests. In this valuable contribution to the current debate, Valentina Vadi examines the merits and pitfalls of arbitral tribunals’ use of the concepts of proportionality and reasonableness to review the compatibility of a state’s regulatory actions with its obligations under international investment law.

Author: Caroline Henckels
Publisher: Cambridge University Press
ISBN: 1316432300
Category : Law
Languages : en
Pages : 265

View

Book Description
In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.

Author: Esmé Shirlow
Publisher: Cambridge University Press
ISBN: 1108490972
Category : Law
Languages : en
Pages : 381

View

Book Description
This book investigates how international adjudicators defer to State decision-making authority, and what that reveals about the domestic-international interface.

Author: Xu Qian
Publisher: Kluwer Law International B.V.
ISBN: 9403522054
Category : Law
Languages : en
Pages : 396

View

Book Description
Water Services Disputes in International Arbitration Reconsidering the Nexus of Investment Protection, Environment, and Human Rights by Xu Qian The argument that universal access to water is a human right is based on the fact that life on Earth cannot exist without water. Yet the enormous cost of building and maintaining water service infrastructure, purifying, monitoring quality, and providing sanitation services is beyond the means of many of the States most in need. Foreign investment is thus mandated—hence the often acrimonious tension manifest in investor-State disputes over water rights. This book offers the first in-depth analysis of both international treaty norms and their interpretation by arbitral tribunals applicable to investment in water and sanitation services, complete with thoroughly researched recommendations for those arbitral practitioners in the eye of the storm. Like no previous study the book clearly reveals how to reconcile the economic and fundamental human interests arising from investment in water and sanitation services under the international investment regime. Among many vital issues, the author highlights the importance of the following: legitimacy of a State’s alleged regulatory objectives, the suitability of the measures undertaken to achieve the objective, and whether there are less restrictive means available; legal framework and stability of the State; applicable law, changes in law, and emergency circumstances; economic issues such as water pricing; profit-driven private companies’ reluctance to serve the poor; investment tribunals’ generation of a “regulatory and jurisprudential regime” on water and sanitation services; and determination of liability in relation to expropriation, fair and equitable treatment, and necessity. Arguing that the current investment treaty and arbitral case law framework can regulate water and sanitation services if certain interpretations are favored by adjudicators, the author offers viable, sustainable, and reasonable legal solutions. A detailed annex presents cases decided before a variety of arbitral tribunals, as well as relevant WTO and ICJ cases, and reviews critical literature in the field. The increasing number of cases involved with States’ regulatory measures shows that stakes around water services generate specific legal problems which are new in the world of international economic law. As an incisive investigation of what has been called the “incursion of investment tribunal decisions into the regulatory autonomy of host States,” this profound and innovative analysis provides a coherent and consistent method of review that provides greater certainty to both States and investors and deters abuse of power. It will be welcomed by policymakers and stakeholders interested in the implications of “globalization” of water services for the capacity to adapt to climate change and will suggest ways to enable States to better manage vital water services, even after privatization to foreign companies.

Author: Yuliya Chernykh
Publisher: BRILL
ISBN: 9004414703
Category : Law
Languages : en
Pages : 629

View

Book Description
Contracts are relevant, frequently central, for a significant number of investment disputes. Yet, the way tribunals ascertain their content remains largely underexplored. How do tribunals interpret contracts in investment treaty arbitration? How should they interpret contracts? Does national law have any role to play? Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue addresses these questions. The monograph offers a valuable insight into the practice and theory of contract interpretation in investment treaty arbitration. By proposing a theoretical frame for seamless integration of contract interpretation into the overall structure of decision-making, the book contributes to predictability, coherence, sufficiency and correctness of the tribunals’ interpretative practices in investment treaty arbitration.

Author: Alexander W. Resar
Publisher: BRILL
ISBN: 9004390596
Category : Law
Languages : en
Pages : 95

View

Book Description
Investor State Arbitration In A Changing World Order addresses challenges and reform proposals that dominate contemporary discussion of investor state arbitration. The authors argue that, although important for the institution’s development, current reforms are insufficient to guarantee investor state arbitration’s survival. Instead, if international investment arbitration is to survive and flourish, national governments must distribute more equally the benefits of international investment and trade.

Author: Rumana Islam
Publisher: Springer
ISBN: 9811321256
Category : Law
Languages : en
Pages : 202

View

Book Description
This book presents comprehensive information on a range of issues in connection with the Fair and Equitable Treatment (FET) standard, with a particular focus on arbitral awards against host developing countries, thereby contributing to the available literature in this area of international investment law. It examines in detail the interpretation of the FET standard of key arbitral awards affecting host developing countries, demonstrating the full range of interpretation approaches adopted by the current investment tribunals. At the same time, the book offers valuable practical guidance for counsels/scholars representing host developing countries in investment arbitration, where balancing the competing interests of the foreign investors and the host developing countries in investment disputes poses a complex challenge. The book puts forward the pressing need for a re-conceptualized interpretation of the FET standard in tune with the developmental issues and challenges faced by host developing countries, recognizing these countries’ particular perspectives as an important and relevant aspect of investment disputes (often ignored by the current investment tribunals), while continuing to ensure reasonable protections for foreign investors and therefore serving the needs of the system as whole. The findings presented here will greatly benefit host developing countries engaged in investment arbitration. In addition, the book offers an insightful guide for all researchers whose work involves investment law and investment arbitration issues.