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Public and Private in International Investment Law: An Integrated Systems Approach
Abstract
Members of the invisible college of international investment lawyers are engaged in a fierce battle over the conceptual foundations of their common legal enterprise. The debate centers on whether the international legal regime governing foreign direct investment is a de facto transnational public governance system or merely an institutional support structure for the settlement of essentially private investment disputes. These attempts to establish the public versus private nature of the regime are misconceived. International investment law deals with both public and private concerns, impacts upon both public and private actors, and crosses over traditional divides separating public law from private law and public international law from private international law. The regime’s legitimacy crisis should instead be analyzed from an integrated systems perspective. This approach better comports with the regime’s complex interlocking nature. It is also better suited to the pragmatic challenge of accommodating the conflicting claims of diverse stakeholders within the confines of an outmoded but rapidly evolving legal schema. I illustrate this with concrete examples of minor interventions at three different levels of the regime that could produce major shifts in the prevailing balance between investor and non-investor rights at other levels of the regime. I argue that this strategy represents at once a more feasible and more sensible means of improving international investment law than other alternatives.
... 59 Critics also pinpoint the problem, 60 with structural advantages for multinational corporations being mentioned. 61 If the IIAs at issue do not contain provisions to prohibit these options and planning, it would be hard to close the avenue. On the other hand, if there is a provision in an IIA to that effect, and yet the provision is not tight or clear enough to prevent an investor from utilizing such a loophole, which would be a different story. ...
... 199 Instead, in van Harten's view, "[w]hat is exceptional is that private contractors rather than tenured judges are left to manage the legal construction of the public sphere" 200 Considering the perceived rift in arbitrators' epistemic communities, where one side of arbitrators emphasize ITA as commercial dispute settlement and the other as essentially public adjudication, 202 the variance in applying attribution doctrines appears essentially as a process where arbitrators' "emotive associations" are brought to the foreground. 203 Here, it has been suggested that "arbitration involves the creation of subjectivities which come to exert a controlling effect on the imagination of its practitioners," thus projecting a particular political vision of the proper balance between state/non-state and public/private onto ITA proceedings. 204 As the malleability of attribution doctrines suggest, the dispositif of a SOE may provide a view to an even longer historical continuum structured around the person/thing distinction that continues to sustain the use and abuse of legal personhood and subjectivity in ITA. ...
Investment treaty arbitration (ITA) has emerged as a space where the international legal personality of states and foreign investors is continuously created, maintained, and redefined. Focusing on treatment of state-owned enterprises (SOEs), this Article juxtaposes investment law's doctrinal foundations with Roberto Esposito's political philosophy to explore the dynamics, porosity, and ramifications of international legal personality in ITA. Skeptical of gradual conceptualizations of legal personality, this Article frames investment law in terms of Esposito's person/thing distinction and argues for SOEs to form a liminal category that exposes malleability of legal doctrines when ITA tribunals make or break international legal persons. Ultimately, the ITA cases seem to open a distinct dispositif of a SOE that both delineates the exact normative demarcation of the state as international legal person and creates pockets of indistinguishability and politics at its borders—often to the detriment of the Global South. This insight provides a new perspective on the creation of international legal persons in ITA and international law more generally but, at the same time, also adds a new dimension to Esposito's overarching framework resting on the asymmetric relationship between persons and things.
... In response to these concerns, the most helpful analytics of globalisation is still one proposed by David Held et al in the late 1990s. 4 They suggest that globalisation is characterized by four elements. The first three of these concerns global transactions, and in particular their extensity, intensity and velocity. ...
The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished — globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state — territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need to move away from the traditional paradigm of both social and legal studies: methodological nationalism. I do not answer here how this paradigm should be replaced, but I discuss one prominent candidate of a meta-theory: transnational law. Transnational law, I suggest, helps transcend dichotomies of methodological nationalism that have become unhelpful: between domestic and international, between public and private, and between law and society.
Coherence is highly valued in law. It is especially sought after in investor-state dispute settlement, where charges of incoherence in arbitral awards have long been raised by states and scholars. Yet coherence is a largely underexplored notion in international law. Often, it is treated as a mere ideal to strive towards or simply as a different way to describe the legal consistency of judicial outcomes. This book takes a different approach. It sees coherence as an independent concept having two dimensions: a substantive and a methodological one. Both are critically important for legal reasoning by international courts and tribunals, including by investor-state tribunals, and the book illustrates through several case studies some of the ways this conclusion is borne out in practice. A fuller understanding of coherence in international law has implications for our understanding of the concept of law, the practice of legal reasoning, and judicial professional ethics.
The monograph focuses on the human rights challenges that are associated with the involvement of States in economic activities and on the role that international law has to play in addressing and understanding some of those challenges. State-owned entities are looked at through the lens of several topics of international law that have been found to hold particular relevance in this context, such as the concept of legal personality in international law, the process of normativity in international law, State immunity and State responsibility. The monograph shows how SOEs have had a significant role in shaping the evolution of international law and how, in turn, international law is currently shaping the evolution of State-owned entities. By focusing on State-owned or State-controlled business entities, rather than private corporations, the monograph aims to offer an alternative perspective on the challenges associated with corporations and human rights.
The interaction between domestic law and international law is a topic of perennial interest for international lawyers. Domestic law has long been recognised as a source of international law, an inspiration for legal developments, or the benchmark against which a legal system is to be assessed. More often than not, it is simply treated as mere fact, indicative of the legality of a state’s actions. Academic commentary invariably re-traces these well-trodden paths, leaving one with the impression that the interaction between domestic and international law has been thoroughly mapped, unworthy of further enquiry. However, a different – and surprisingly pervasive – nexus between the two spheres has been largely overlooked: the use of domestic law in the interpretation of international law. The present thesis fills this gap in the literature. This thesis aims to answer two questions: first, is domestic law used in the interpretation of international law by international courts and tribunals; and, second, is it permissible for courts and tribunals to use domestic law in this way? Despite their deceptively simple appearance, these questions raise issues that go to the very heart of interpretation itself. On what basis, for example, can we say that an interpretation is permissible in a certain context? Do the provisions of the Vienna Convention on the Law of Treaties (VCLT) constrain the choice of interpretive methods, and do they provide a framework within which interpretation can – or must – be evaluated? Are there other frameworks for evaluation that more accurately describe when and why a particular interpretation will be accepted by its addressees and others within the legal regime? Only after adequately addressing these questions will it be possible to properly examine the use of domestic law by international courts and tribunals. This thesis is hence not a doctrinal exegesis of the place of domestic law within the Vienna Convention articles, nor does it provide an exhaustive typology of the uses of domestic law by international courts. Rather, it examines the use of domestic law in order to challenge the conventional views regarding the centrality of the Vienna Convention provisions to interpretation, whilst also providing a fresh perspective on the interaction between international and domestic law. It is only when we break free from the ‘conceptual straightjacket’ of Article 31 that we can truly understand whether domestic law has a place in the interpretation of international law.
The principle of access to justice is very dominant in the enforcement of the
protection of the public interests in International Investment Agreements (IIAs).
Protection against fundamental rights of the local community is often ignored in the
establishment of IIAs. It would be argued that the enforcement of access to justice
principle needs an integrative legal thinking both in the substantive and procedural
levels. Integrative legal thinking which is also known as non-compartmentalized legal
thinking, as promoted by Prof. Pieter H.F. Bekker,1 insists a balance protection of
private and public interests in investment dispute settlement which involve multiple
stakeholders. The fragmented approach may lead to pro investor bias and impede the
enforcement of access to justice, especially for the civil communities which are also
harmed as a result of the implementation of the investment. This article examines the
concept of the integrative legal thinking and its relevant recent practices. It also
argues that integrative or non-compartmentalized legal thinking is considered as a
prominent factor to uphold the principle of access to justice in investment dispute
settlement in order to protect not only the contracting parties, but also the local
community or third party affected by the investment.
It is widely recognized that states receiving foreign direct investment (FDI) may greatly benefit from it, as it is one of the driving forces of economic development. Nevertheless, if FDI is not regulated properly, it may lead to environmental harm, social unrest, ‘race-to-the-bottom’ in regulatory standards as well as other negative consequences. As the world is approaching the end of the second decade of the twenty-first century, there is an increasing recognition of the need for a modern legal framework of FDI that provides not only for the protection of investors’ rights, but also properly addresses investments’ wider social, economic, and environmental effects. Although historically the emphasis of the investment law has been placed primarily on investment protection, such an asymmetrical treatment of FDI is slowly, but steadily giving way to the new generation legal framework of FDI, the objective of which is not only to protect investment, but also advance host states’ sustainable development. One way to promote such a legal framework is by reforming ‘old generation’ international investment agreements. This paper is focused on the analysis of the following major standards provided in most international investment agreements: (1) fair and equitable treatment, (2) national treatment, (3) most-favored-nation treatment, (4) full protection and security, and (5) observance of obligations or so-called “umbrella clause”. While in general these standards are important for the protection of investors’ rights, the broadly formulated and unbalanced versions of these standards are now being increasingly challenged for limiting host states’ legislative and regulatory powers and for being unclear which has thus far resulted in a number of inconsistent arbitral awards. The paper analyzes these investment protection standards via an examination of relevant arbitral awards and investment agreements and proposes ways how they can be better balanced so that both the interests of investors and states can be fully accommodated.
International economic law scholars identified an emerging regulatory trend of screening foreign investments and the risks involved in blurring distinctions between economic and political issues for international peace and stability. Although various academic contributions capture current anomalies in international (economic) relations, they offer conflicting explanations. Instead, broadening analysis of such “surface tensions” to include deeper “tectonic movements”, resulting from technology progress, reconciles various scientific observation. It would also allow to harness earlier academic contributions to perform more proactive function. Regulation on investment screening, where it touches upon development and circulation on new technologies, should be developed with great cautiousness, so that we don’t fall into a trap of our own making.
In framing investment treaty claims against host states, foreign investors routinely assert that the state’s conduct was ‘politically’ motivated. Arbitral tribunals must then grapple with these allegations. Yet, tribunals lack both a coherent conception of what constitutes politically motivated conduct and a consistent understanding of the relevance, if any, of such motivations for the disposition of an investor’s legal claims. This uncertainty points to an underlying tension within the investment treaty regime between the protection of investors’ interests on the one hand, and the legitimate scope for democratic decision-making and responsive politics on the other.
Using concepts drawn from political science, we develop a new framework to map the variety of conduct that tribunals characterize as ‘political’. Our framework draws attention to different types of influence over government decision-making, as well as differences between government actors responsible for the conduct. We use this framework to show that tribunals have adopted different conceptions of what constitutes illegitimate political influence over government decision-making in factually similar cases. We then evaluate tribunals’ competing approaches in light of normative theories spanning both public law and private law. Engaging with multiple normative theories allows us to examine whether tribunals’ different approaches to politically motivated conduct might reflect diverse underlying normative commitments. We argue, however, that many arbitral tribunals demonstrate a reflexive distrust of domestic political contestation that is difficult to justify within any of the theories that we consider.
This article intends to consider what the new generation of FITs might signify for our understanding of public law. Rather than modelling international public law or questioning its legitimacy derived from national public law (or one independently generated), I want to focus on a ‘public law’ thread running through all of this. The analysis here traces the transliteration of investment protection arbitration from public international law to international public law. It begins first by briefly outlining the established position of foreign direct investment protection in public international law. It then reviews the public law character claimed for investor-state arbitration, a claim which is criticised. And finally the analysis considers how those public law elements can feed ‘international public law’. This points to forms of transnational legal pluralism and I consider at the end what the implications may be for a conception of state and law.
Legitimacy of Unseen Actors in International Adjudication - edited by Freya Baetens August 2019
The Oxford Handbook of the Theory of International Law. Edited by Anne Orford & Florian Hoffman , with Martin Clark . Oxford, New York: Oxford University Press, 2016. Pp. xxxi, 1045. Index. $210. - Donald Earl Childress
In the last decade amicus intervention has become increasingly prevalent in investor-state arbitration. As part of a generalized drive towards transparency, amicus briefs are now routinely submitted in high-profile investor-state arbitrations, which are closely related to public interest issues. Philip Morris v. Uruguay is a notable example of such arbitrations. However, it is often argued that amicus submissions are hardly relevant to investor-state tribunals’ analyses. By first shedding light on the conditions governing the acceptance of amicus briefs, this article looks at how the Philip Morris tribunal admitted such briefs and whether they were at all relevant to the tribunal’s analysis. It thereafter questions the extent to which such relevance may be linked to the tribunal’s findings.
This article examines the international regulatory framework for large-scale agricultural land investments (‘LSALIs’). Population growth, natural resource scarcity, and the financial and food price crises have made financial actors revise their long-held hesitation towards direct investment in farmland. Although these investments could inject much-needed capital into rural areas, LSALIs have been connected with grievous human rights violations and environmental degradation. This article finds that the instruments designed to promote socially and environmentally responsible LSALIs have increasing levels of legitimacy but lack accountability mechanisms. As a result, the emerging regulatory framework for LSALIs does not create the balance required between protecting investors from host state interference and ensuring socially and environmentally responsible agricultural investments.
Dispute Resolution in International Trade and Investment Law: Privatisation of the Public?
Few international legal fields have seen an increase in literature over the past decade as steep as international investment
law. This reflects the growing interest in practice and academia in what is probably not only the most dynamic area of international
law but also one with significant impact on domestic law and policy-making. What is striking, apart from the sheer enormity
of writing, however, is the changes the discourse on international investment law has undergone. Focus, topics, conceptual
and methodological approaches, authorship, and audiences of the present literature differ significantly from that of the turn
of the millennium. This reflects both an evolution in the law itself and changes in the professional, political, and institutional
practices and communities involved. The literature on international investment law thus is a reflection of the sociological
dimension of a discipline that until recently was the province of a small group of specialists and now is rapidly moving mainstream.
The article outlines a simple thesis: that international investment arbitration - pursuant to regional and bilateral investment treaties - offers the clearest example of global administrative law, strictly construed, yet to have emerged. We present this thesis by explicating four key features of investment treaties: they permit investor claims against the state without exhausting local remedies; they allow claims for damages; they allow investors to directly seek enforcement of awards before domestic courts; and they facilitate forum-shopping. Our argument is that, owing to this unique conjunction of features, the regulatory conduct of states is, to an unusual extent, subject to control through compulsory international adjudication. Having highlighted these features, we then claim that investment arbitration is best analogized to domestic administrative law rather than to international commercial arbitration, especially since investment arbitration engages disputes arising from the exercise of public authority by the state as opposed to private acts of the state. Further, we claim that the linkages between investment arbitration and domestic legal systems are more direct and more closely integrated than other forms of international adjudication in the public sphere. For these reasons, we argue that the emerging regime of investment arbitration is to be understood as constituting an important and powerful manifestation of global administrative law.
Public interest regulations, whether promulgated in the best interest of the state or in the common interest of mankind, embody deeply embedded democratic values held by a state's populace. The regulations, enacted by democratically elected officials, represent exercises in both sovereignty and public-policy making. Investment arbitrations have begun to increasingly engage public interest regulations. Foreign investors, aggrieved that public interest regulations are interfering with their investments, are challenging public interest regulations in investment arbitrations. Suddenly, regulations addressing concerns ranging from the environment to the correction of wrongs committed during the apartheid regime are under scrutiny. As a result, unelected arbitrators are evaluating the appropriateness of public interest regulations. Moreover, they are doing so with little or no public involvement. The transportation of issues that directly affect citizens to a system that is both inaccessible to everyday citizens and is structurally isolated from public input creates a democratic deficit. The question thus arises, in adjudging public interest issues, is investment arbitration contributing to the democratic deficit? This article suggests that both the process and the outcomes from investment arbitration need to be modified to reflect the inclusion of core democratic values in a dispute settlement mechanism bereft of democratic ideals.
International investment arbitration has been described as a private system of justice addressing matters of high public policy. Yet, despite the very high stakes involved - in terms of both policy room and monetary implications - tribunal awards are sometimes difficult to reconcile. This conflict usually is explained with reference to the fact that these are ad hoc tribunals addressing specific disputes arising under particular investment treaties. Not so easily explained are conflicting tribunal awards drawing on virtually identical facts, invoking the same treaty text, where arbitrators seemingly change their mind from one case to the next without any explanation. This paper takes up a sequence of three tribunal awards issued against Argentina as a result of actions taken during the meltdown of the Argentinian economy in 2000-01. Two different arbitrators signed onto conflicting awards, each appearing to have changed their minds about whether Argentina was entitled to take advantage of the defence of necessity in the face of this economic crisis. Drawing on work in judicial politics, the paper brings in a number of non-legal variables into the analysis - such as social background, attitudinal behaviour, strategic behaviour, and institutional concerns - in order to illuminate aspects of arbitral decision making in the investment law context. I conclude that an institutional approach better explains arbitral dispositions, allowing arbitrators to act in ways inconsistent with their preferred outcomes but also to self-correct.
Although domestic administrative law scholars have long debated privatization within the US, this debate has not confronted the growing phenomenon of privatization in the international realm or its impact on the values embodied in public international law. Yet, with both nation-states and international organizations increasingly privatizing foreign affairs functions, privatization is now as significant a phenomenon internationally as it is domestically. For example, states are turning to private actors to perform core military, foreign aid, and diplomatic functions. Military privatization entered the popular consciousness in 2004, when private contractors working for the US government abused detainees at Abu Ghraib prison in Iraq. But this is only the tip of the iceberg. The US is increasingly using private actors for logistical support to combat troops and to provide strategic planning and tactical advice. Other states, such as Sierra Leone, have used private contractors to engage in direct combat, and international organizations have weighed the possibilities of using private contractors to perform peacekeeping. In the foreign aid context, states and international organizations are entering into agreements with private non-profit and for-profit entities to deliver all forms of aid, including humanitarian relief, development assistance, and post-conflict reconstruction. Even diplomatic tasks such as peacekeeping negotiations are being undertaken by private actors. In this Essay I suggest that the domestic U.S. administrative law literature may provide a useful set of responses to privatization that has been largely overlooked by international law scholars, policy-makers, and activists. In particular, I argue that possibilities for extending public law values inhere in the privatized relationship itself, particularly in the government contracts that are the very engine of privatization. Thus, the contracts governments enter into with non-state actors can include many provisions that would help to create both standards of behavior, performance benchmarks, and a means of providing some measure of public accountability. In this Essay, I outline nine such contractual provisions. Specifically, I suggest that contracts be drafted to: (1) explicitly extend relevant norms of public international law to private contractors, (2) specify training requirements, (3) provide for enhanced monitoring both within the government and by independent third-party monitors, (4) require accreditation, (5) establish clear performance benchmarks, (6) mandate self-evaluation by the contractors, (7) provide for governmental takeovers of failing contracts, (8) include opportunities for public participation in the contract negotiation process, and (9) enhance whistleblower protections and rights of third-party beneficiaries to enforce contractual terms. And while these provisions are not a panacea, they may be at least as effective as the relatively weak enforcement regime of public international law. At the same time, by considering the field of international privatization, I seek to open what I believe could be a fruitful dialogue between domestic administrative law scholars and international law scholars about possible responses.
The Status Quo Alternative
- Public And Private In Investment Law
PUBLIC AND PRIVATE IN INVESTMENT LAW 369 1. The Status Quo Alternative........................................ 431
Enhancing International Investment Law's Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach, 52 VA
- International In-Vestment Law And Comparative Public
- Stephan Law
- Iil Whereinafter
- Comparative Public Law
- W Stephan
- Schill
INTERNATIONAL IN-VESTMENT LAW AND COMPARATIVE PUBLIC LAW (Stephan W. Schill ed., 2010) [hereinafter IIL & COMPARATIVE PUBLIC LAW]; Stephan W. Schill, Enhancing International Investment Law's Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach, 52 VA. J. INT'L L. 57 (2011) [hereinafter Schill, New Public Law Approach].
UNCITRAL, Australia's Response to the Notice of Arbitration, ¶ 25 (quoting a submission of the World Health Organization) (internal citations omitted)
- Philip Morris Asia
Philip Morris Asia Ltd., UNCITRAL, Australia's Response to the Notice of Arbitration, ¶ 25 (quoting a submission of the World Health Organization) (internal citations omitted).
New Public Law Approach, supra note 11
- Schill
Schill, New Public Law Approach, supra note 11.
For the most recent installment in the administrative-law-inspired angle, see Jason Webb Yackee
- Harv Int
For the most recent installment in the administrative-law-inspired angle, see Jason Webb Yackee, Controlling the International Investment Law Agency, 53 HARV. INT'L L.J. 391 (2012).
Levinson provide an insightful analysis of the similarities between carrying out this task at the international and domestic levels in Law for States: International Law
- Jack Goldsmith
Jack Goldsmith and Daryl Levinson provide an insightful analysis of the similarities between carrying out this task at the international and domestic levels in Law for States: International Law, Consti-tutional Law, Public Law, 122 HARV. L. REV. 1791 (2009).
supra note 107 The Sociology of International Investment Law
- See
See, e.g., Roberts, supra note 107; Moshe Hirsch, The Sociology of International Investment Law, in THE FOUNDATIONS OF INTERNATIONAL INVESTMENT LAW: BRINGING THEORY INTO PRACTICE, (Z. Douglas, J. Pauwelyn & J.E. Viñuales eds., forthcoming July 2014) (on file with author); Stephan W. Schill, W(h)ither Fragmentation?: On the Literature and Sociology of International Investment Law, 22 EUR. J. INT'L L. 875 (2011);
Bertalanffy developed his views on theoretical biology and general systems theory from the 1920s through the 1970s. Some of his best known works include
- Ludwig Id
- Von Bertalanffy
- Theoretische
- Biologie
Id. at 1253. 204. Bertalanffy developed his views on theoretical biology and general systems theory from the 1920s through the 1970s. Some of his best known works include: LUDWIG VON BERTALANFFY, THEORETISCHE BIOLOGIE (2d ed. 1932–1942)
1977) (emphasis 212 Studying Complex Adaptive Systems
- I V Blauberg
- V N Sadovsky
- E G Yudin
- John H Systems
- Holland
I.V. BLAUBERG, V.N. SADOVSKY & E.G. YUDIN, SYSTEMS THEORY: PHILOSOPHICAL AND METHODOLOGICAL PROBLEMS 44 (Sergei Syrovatkin & Olga Germogenova trans., 1977) (emphasis 212. MELANIE MITCHELL, COMPLEXITY: A GUIDED TOUR 13 (2009); see also John H. Holland, Studying Complex Adaptive Systems, 19 J. SYS. SCI. & COMPLEXITY 1 (2006), available at http://hdl.han dle.net/2027.42/41486 (defining CAS as " systems that have a large numbers of components, often called agents, that interact and adapt or learn " ).
ars, and others can begin addressing the underlying causes of the interna-tional investment law regime's " legitimacy crisis " straight away. 270 For this ers and citizens (e.g
- Frederick Lawrence
Frederick Lawrence trans., 1985). ars, and others can begin addressing the underlying causes of the interna-tional investment law regime's " legitimacy crisis " straight away. 270 For this ers and citizens (e.g., Venezuela, Zimbabwe, Ecuador).
The Dynamic Evolution of the ICSID System So is investor-state arbitration in danger? The answer is probably: not yet but we should not necessarily take it for granted
- Christoph Schreuer
- Keynote Address
Christoph Schreuer, Keynote Address: The Dynamic Evolution of the ICSID System, in THE INTER-
NATIONAL CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES (ICSID): TAKING
STOCK AFTER 40 YEARS 15, 31 (Rainer Hofmann & Christian J. Tams eds., 2007), available at
http://www.univie.ac.at/intlaw/pdf/cspubl_86.pdf ( " So is investor-state arbitration in danger? The
answer is probably: not yet but we should not necessarily take it for granted. There may well be further curtailments or even calls to replace the current system by a State v. State system. " ).
com/sites/default/files/case-docume nts/ita1082.pdf; Daimler Fin. Servs. AG v. Argentine Republic, ICSID Case No. ARB/05) (recanting his earlier holding on the same question in
ARB/05/1, Award (Aug. 22, 2012), available at http://italaw.com/sites/default/files/case-docume
nts/ita1082.pdf; Daimler Fin. Servs. AG v. Argentine Republic, ICSID Case No. ARB/05/1, Separate Opinion of Arbitrator Domingo Bello Janeiro (Aug. 16, 2012) (recanting his earlier holding on
the same question in Siemens A.G. v. Argentine Republic, ICSID Case No. ARB/02/8, Decision on
Jurisdiction (Aug. 3, 2004)), available at http://www.italaw.com/sites/default/files/case-documents/
ita1084.pdf).
Some Realism about Realism — Responding to Dean Pound (footnotes omitted). 203. Id. at 1253. 204. Bertalanffy developed his views on theoretical biology and general systems theory from the 1920s through the 1970s. Some of his best known works include
- N Karl
- Harv L Llewellyn
- Rev
Karl N. Llewellyn, Some Realism about Realism — Responding to Dean Pound, 44 HARV. L. REV.
1222, 1252–53 (1931) (footnotes omitted).
203. Id. at 1253.
204. Bertalanffy developed his views on theoretical biology and general systems theory from the
1920s through the 1970s. Some of his best known works include: LUDWIG VON BERTALANFFY,
THEORETISCHE BIOLOGIE (2d ed. 1932–1942);
http://www.iarepor ter.com/articles Arbitrator Pedro Nikken wrote a pointed dissent from the above-discussed Suez Decision on Liability, supra note 77, for example
- Luke Eric Peterson
Luke Eric Peterson, In Policy Switch, Australia Disavows Need for Investor-State Arbitration Provisions in Trade and Investment Agreements, INVESTMENT ARB. REP. (Apr. 14, 2011), http://www.iarepor
ter.com/articles/20110414.
221. Arbitrator Pedro Nikken wrote a pointed dissent from the above-discussed Suez Decision on
Liability, supra note 77, for example. See Suez, Sociedad General de Aguas de Barcelona S.A., v. Argentine Republic, ARB/03/17, Separate Opinion of Arbitrator Pedro Nikken (July 30, 2010), available
at http://italaw.com/documents/SuezVivendiAWGSeparateOpinion.pdf.
222. See, e.g., Ross, supra note 13.
http://www.bdlive.co.za/businesstimessouth-africa-european-union-lock-horns (reporting that South Africa has terminated its bilateral investment treaty with Belgium and Luxembourg and has announced its intention to terminate its BITs with all other European states)
- Jana Marais
- South Africa
- Business Day
- Live
Jana Marais, South Africa, European Union Lock Horns, BUSINESS DAY LIVE (Sept. 23, 2012),
http://www.bdlive.co.za/businesstimes/2012/09/23/south-africa-european-union-lock-horns (reporting that South Africa has terminated its bilateral investment treaty with Belgium and Luxembourg and has announced its intention to terminate its BITs with all other European states).
- Ludwig Von Bertalanffy
- Problems
- Life
LUDWIG VON BERTALANFFY, PROBLEMS OF LIFE: AN EVALUATION
OF MODERN BIOLOGICAL AND SCIENTIFIC THOUGHT (1952);
Allgemeine Systemtheorie und die Einheit der Wissenschaften
- Bertalanffy Ludwig Von
Ludwig von Bertalanffy, Allgemeine Systemtheorie und
die Einheit der Wissenschaften, Atti del XII Congresso Internazionale di Filosofia, vol. IV, Firenze
(1962);
Towards a Common Law of International Investment: How NAFTA Chapter 11 Panels Should Solve Their Legitimacy Crisis
- Ari Afilalo
- Geo L Int 'l Envtl
- Rev
Ari Afilalo, Towards a Common Law of International Investment: How NAFTA Chapter 11 Panels
Should Solve Their Legitimacy Crisis, 17 GEO. INT'L ENVTL. L. REV. 51 (2004);
- Stephen M Schwebel
- Justice In
- Law
STEPHEN M. SCHWEBEL, JUSTICE IN INTERNATIONAL LAW: FURTHER SELECTED WRITINGS 152
(2011);
- Von Ludwig
- Bertalanffy
- Problems
- Life
LUDWIG VON BERTALANFFY, PROBLEMS OF LIFE: AN EVALUATION
OF MODERN BIOLOGICAL AND SCIENTIFIC THOUGHT (1952);
- Von Ludwig
- Bertalanffy
LUDWIG VON
BERTALANFFY, ORGANISMIC PSYCHOLOGY AND SYSTEMS THEORY (1968);
- Bertalanffy Ludwig Von
Ludwig von Bertalanffy, General System Theory as Integrating Factor in Contemporary Science and in
Philosophy, in Akten des XIV Internationalen Kongresses für Philosophie, Wien, Österreich, Sept. 2-9,
1968, Bd. II, at 335-40.
A radical closure of the system -under certain conditions -means its radical openness. This is one of the most challenging theses of autopoietic theory. The more the legal system gains in operational closure and autonomy, the more it gains in openness toward social facts
- Gunther Teubner
- Law
- System
GUNTHER TEUBNER, LAW AS AN AUTOPOIETIC SYSTEM (European Univ. Press 1993).
209. The term autopoeisis comes from the Greek αὐτo-(auto-), meaning "self", and ποίησις
(poiesis), meaning "creation, production."
210. LUHMANN, LAW AS A SOCIAL SYSTEM, supra note 207, ch. 10.
211. Teubner in particular has vigorously defended the notions of operational closure and cognitive openness against attacks from later "open systems" theorists. See, e.g., Gunther Teubner, Introduction to Autopoietic Law, in AUTOPOIETIC LAW: A NEW APPROACH TO LAW AND SOCIETY 1, 2 (Gunther Teubner ed., 1987) ("A radical closure of the system -under certain conditions -means its
radical openness. This is one of the most challenging theses of autopoietic theory. The more the legal
system gains in operational closure and autonomy, the more it gains in openness toward social facts,
political demands, social science theories, and human needs.").
For an extensive critique of the biological theory and its application, see BLAUBERG, SADOVSKY & YUDIN, supra note 205, pt. II. For a critique of Luhmann's social systems theory, see JÜRGEN HABERMAS
For an extensive critique of the biological theory and its application, see BLAUBERG,
SADOVSKY & YUDIN, supra note 205, pt. II. For a critique of Luhmann's social systems theory, see
JÜRGEN HABERMAS, THE PHILOSOPHICAL DISCOURSE OF MODERNITY: TWELVE LECTURES 368-85 (Frederick Lawrence trans., 1985).
The United States 2004 Model Bilateral Investment Treaty: An Exercise in the Regressive Development of International Law
- Transnat'l Disp
- Mgmt
model texts upon which their future bilateral investment treaties will be negotiated. For contrasting
appraisals of these developments, compare Stephen M. Schwebel, The United States 2004 Model Bilateral Investment Treaty: An Exercise in the Regressive Development of International Law, TRANSNAT'L DISP.
MGMT., Apr. 2006, http://www.transnational-dispute-management.com/article.asp?key=780;
- Jana Marais
- South Africa
Jana Marais, South Africa, European Union Lock Horns, BUSINESS DAY LIVE (Sept. 23, 2012),
http://www.bdlive.co.za/businesstimes/2012/09/23/south-africa-european-union-lock-horns (reporting that South Africa has terminated its bilateral investment treaty with Belgium and Luxembourg and has announced its intention to terminate its BITs with all other European states).
224. Most recently, arbitrator Domingo Bello Janeiro completely recanted his previous interpretation of the Argentina-Germany BIT's jurisdictional requirements for the institution of investor-state arbitration proceedings
- E G See
- Brigitte Stern
See, e.g., Brigitte Stern, ICSID Arbitration and the State's Increasingly Remote Consent: Apropos the
Maffezini Case, in LAW IN THE SERVICE OF HUMAN DIGNITY: ESSAYS IN HONOUR OF
FLORENTINO FELICIANO 246 (Steve Charnovitz et al. eds., 2005).
224. Most recently, arbitrator Domingo Bello Janeiro completely recanted his previous interpretation of the Argentina-Germany BIT's jurisdictional requirements for the institution of investor-state
arbitration proceedings. See Daimler Fin. Servs. AG v. Argentine Republic, ICSID Case No.