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This book outlines the principles behind the international law of foreign investment. The main focus is on the law governed by bilateral and multilateral investment treaties. It traces the purpose, context, and evolution of the clauses and provisions characteristic of contemporary investment treaties, and analyses the case law, interpreting the issues raised by standard clauses. Particular consideration is given to broad treaty-rules whose understanding in practice has mainly been shaped by their interpretation and application by international tribunals. In addition, the book introduces the dispute settlement mechanisms for enforcing investment law, outlining the operation of Investor vs State arbitration. Combining a systematic analytical study of the texts and principles underlying investment law with a jurisprudential analysis of the case law arising in international tribunals, this book offers an ideal introduction to the principles of international investment law and arbitration, for students or practitioners alike.
Book Reviews471
Rudolf Dolzer and Christoph Schreuer .
Principles of International
Investment Law . New York : Oxford
University Press , 2008 . Pp. xliii, 433.
Hardback 60. Paperback 25. ISBN
9780199211760 .
International investment law is one of the
fastest-growing areas of international law
today. Only a decade ago, the current surge
in investor state arbitrations, having cumu-
lated in approximately 300 investment treaty
1 was beyond imagination. At the
same time, investment treaties enshrine prin-
ciples of international investment law, rather
than hard and fast rules. Almost unavoid-
ably, international investment law therefore
became coined more by the dispute settlement
activities of arbitral tribunals which enter-
tain claims between foreign investors and
host states brought under investment treaties
rather than by diplomatic exchange, inter-
governmental negotiation, and inter-state
treaty-making. Similarly, international invest-
ment law transpires and develops more in view
of arbitral precedent and case law than on the
basis of traditional textual approaches to treaty
interpretation. Nonetheless, applying invest-
ment treaties in practice as well as studying
and understanding the fi eld not only requires
knowledge about the jurisprudential develop-
ments but also demands awareness of the his-
toric, economic, and customary international
law context of foreign investment activities.
The present book, written by two of the
most eminent scholars in international
investment law with decades of experience
in practice and academia, does exactly this
in 10 clearly structured and concisely writ-
ten chapters. While focusing in its core on the
substantive principles of investment protec-
tion, the rights and obligations contained in
investment treaties, and the reading that arbi-
tral tribunals have given to them, it starts out
by embedding the discussion into a thorough,
yet concise, review of the larger economic,
historic, and political framework which is
necessary to gain a deeper understanding of
international investment law as a fi eld (at Ch.
1). It continues by analysing the specifi cities
of interpretation of investment treaties, men-
tioning in particular the strong infl uence of
precedent and the temporal aspects of applica-
tion of investment treaties (at Ch. 2). Subse-
quently, the threshold elements which open
the scope of application of investment treaties
are discussed, namely the notions of investor
and investment as they are applied by invest-
ment tribunals (at Ch. 3).
After an informative, but brief, diversion
on investment contracts (at Ch. 4), the book
delves into its main subject: the scope and
interpretation of the substantive principles of
international investment law. It fi rst touches
briefl y on the rules on admission and estab-
lishment which have, because of the usually
limited obligations states have assumed in
this context, not given rise to much case law
(at Ch. 5). Yet, the chapter’s section on the
requirement that investments have to com-
ply with the host state’s law in order to enjoy
protection is well developed. Chapter 6 then
focuses in depth on the provisions concern-
ing expropriation. The authors mention not
1 UNCTAD, Latest Developments in Investor
State Dispute Settlement (2008) , available at: ,
at 1 – 2.
by guest on December 26, 2016 from
472 EJIL 20 (2009), 447 – 485
only the right to expropriate and its restric-
tions; they equally discuss at length the more
diffi cult issue of determining the domain of
indirect expropriations, i.e. interferences with
a vested property right which do not directly
affect the title, but the value and use of prop-
erty. Chapter 7, in turn, addresses the other
substantive standards of treatment which
form part of the usual canon of investment
treaty protection and regularly appear in
investor state arbitration. It includes, inter
alia , in-depth discussions of the standards
to provide fair and equitable treatment and
full protection and security, analyses the
scope and function of umbrella clauses and
clauses prohibiting arbitrary and discrimina-
tory treatment, and dissects the provisions
on non-discrimination contained in invest-
ment treaties, i.e. national treatment and
most-favoured-nation (MFN) treatment. The
same chapter also discusses the impact that
emergencies and a state of necessity have on
investment treaty obligations. This chapter
is complete, concise, and comprehensive and
conveys a clear and practical picture of how
investment treaties and the rights they grant
to investors are implemented in practice.
Subsequently, the book discusses the rela-
tively complex and not yet fully resolved issues
surrounding state responsibility and attribu-
tion, in particular as regards state entities
other than state organs (at Ch. 8), and gives
a brief introduction to political risk insurance
(at Ch. 10). Finally, the book contains a very
elaborate section on the dispute settlement
mechanisms under investment treaties with
a detailed discussion of investor state arbi-
tration and the various issues which are of
interest in this context, such as the applica-
tion of MFN clauses to questions of procedure
and jurisdiction, the review and annulment of
arbitral awards, or the relationship between
domestic courts and tribunals (at Ch. 10). This
section is written so that it gives both an intro-
duction to those not familiar with investment
arbitration and valuable overview of current
and contentious issues regarding investment
treaty arbitration to the more experienced
reader. At the very end, the book presents
an extensive annex which contains the most
important legal texts in the fi eld of interna-
tional investment law, including the ICSID
Convention, the Energy Charter Treaty, the
NAFTA, and the model bilateral investment
treaties (BITs) of China, France, Germany, the
UK, and the US. These annexes not only make
the practical work in investment treaty arbi-
tration easier, they also allow a comparison of
those model BITs which are most infl uential
and illustrate the different emphases states
put in their investment treaty practice.
The principal approach the book takes
is to view most of the questions it addresses
through the practice of arbitral tribunals
and the way they have concretized the often
vague standards of international invest-
ment law without losing sight of the historic
development. Thus, it often introduces the
fate certain treaty provisions had on their
way to becoming part of the standard arsenal
of investment treaties and accounts for dif-
ferences in the treaty practice of states as
regards, for instance, rules on admission and
establishment or fair and equitable treat-
ment. Furthermore, the book also gives an
accurate and objective account of differences,
divergences, and confl ict in investment juris-
prudence, for example with regard to the
almost notorious topic of umbrella clauses.
Commentary on which side of two coins in
investment jurisprudence is preferable and
why is, however, rather rare. Instead, the
authors remain in the tradition of an objec-
tive treatise which attempts to describe,
order, structure, and classify rather than
develop an independent theory of interna-
tional investment law.
While the authors manage to describe the
rather voluminous investment jurisprudence
in an accurate and concise fashion, the inevi-
table pitfall of such an approach is the constant
need for both readers and authors to keep up
to date with newly appearing arbitral awards.
While the fast-moving pace of investment law
leaves little alternative, summarizing ana-
lyses at the end of each section in an attempt
to provide a Rechtsdogmatik of international
investment law would have been helpful, in
particular to non-expert readers and students.
Similarly, further references to the growing
by guest on December 26, 2016 from
Book Reviews473
and more specifi c literature would have been
welcome. These aspects should, however, not
detract from the great value this book brings,
not only as an introduction to students, but
also as a valuable tool for researchers and
practitioners. In any event, the way invest-
ment jurisprudence has developed so far,
going back and relying on the foundational
cases, which are without fail discussed in
Dolzer/Schreuer, suggests that even without
constant updates this book will provide a last-
ing account for anybody interested in inter-
national investment law. At the price of £25
for the paperback edition, this book is bound
to become the primary teaching material for
international investment law in law schools
around the world.
Stephan W. Schill , Dr. Jur.
International Arbitration Law Clerk to The Hon.
Charles N. Brower, Arbitrator, 20 Essex Street
Chambers, London
doi: 10.1093/ejil/chp019
by guest on December 26, 2016 from
... However, this development of the international investment regime into a powerful mechanism of global governance has also led to ongoing and controversial discussions about the legitimacy of investor-state arbitration (ISA) (Brower & Schill, 2009;Franck, 2005;Waibel, Kaushal, Chung, & Balchin, 2010). Recently, ISDS became a matter of fervent public debate in some of the most advanced economies. ...
... From legitimacy gaps to crisis: the active contestation of investor-state arbitration during the TTIP negotiations While the above-mentioned legitimacy gaps of ISA have long been discussed within elite circles of academics and arbitration professionals (Brower & Schill, 2009;Franck, 2005;Waibel et al., 2010), a more public political debate only recently emerged (Bonnitcha et al., 2017;Diependaele, De Ville, & Sterckx, 2019;Nichols 2018;Simmons, 2014). This was especially evident in 2014, when the international investment regime received unprecedented levels of public awareness surrounding the TTIP negotiations. ...
In response to the ongoing legitimacy crisis of investor-state arbitration, the European Union (EU) developed a new model of investor-state dispute settlement (ISDS) that replaces international arbitration with a system of bilateral investment courts. In this article, we draw on literature on the role of legitimacy in driving institutional change in international institutions to explain the rise of the new EU model. We further examine the extent to which the new EU model is able to overcome this crisis, thereby potentially giving the ISDS a new legitimation. We argue that the new EU model in large part does provide a substantial response to several frequently contested legitimacy gaps of ISDS. At the same time, however, we suggest that the EU model does not effectively address the most fundamental criticism of ISDS, which questions the very existence of a specific judicial forum providing exclusive rights for international investors, particularly between states with highly developed economies and legal orders.
... One explanation can be that since the doctrine of stare decisis does not exist in international investment law, it follows that "arbitral tribunals are free to adopt rulings that deviate from prior decisions of other tribunals". 110 Another explanation could be that this inconsistency was about aspiring to seal arbitral harmony. Whatever be the case, I have been flabbergasted with the resolve of the CMS tribunal to pay only lip service to the economic hardships experienced by ordinary Argentines. ...
Full-text available
The choice of the World Bank as the appropriate forum for dispute settlement is justified on the grounds that it depoliticises disputes, reducing the risk of souring international relations. Modern BITs have now come to terms with what I will term a consensual rule mechanism, a voluntary process by which the state and investors willingly commit their disputes to international arbitration. The watchword of this new modus operandi is consent. ICSID has facilitated this unusual procedure, enabling the conciliation and arbitration of investment disputes based on consent. The possibility of investors’ direct access and absence of a government filter mean that such a tribunal would be flooded with claims, some of which would be dishonest. The consent requirement is important not only to prevent abuse but also to limit the competence of the tribunal.
... Furthermore, the investor-state dispute settlement enables foreign investors to hold host states accountable for unreasonable interferences with their investments. 107 In particular, it offers a mechanism for rendering swift, enforceable and depoliticised awards in the event of indirect and direct expropriation without compensationa matter in which host-state courts' neutrality is generally called into question, 108 irrespective of the sophistication of their legal systems. While problems with non-compensated expropriation are often encountered in jurisdictions with underdeveloped legal systems, posing threats of lengthy court proceedings and corruption, 109 South Africa, with its fairly advanced judiciary and legislative framework, has certainly not proven itself beyond reproach in this regard. ...
Full-text available
Following a multi-year review of its bilateral investment treaties (BITs), the South African government terminated all BITs it had signed with European countries, and instead promulgated the Protection of Investment Act 22 of 2015 (PIA). The purpose of the PIA is, among other things, to protect investment in line with the Constitution, in a manner that balances the public interest and investors’ rights and obligations. The termination of the BITs and the promulgation of the PIA, however, seem to have created a gap with regard to the protection afforded to investors; compared with some of the terminated BITs, the PIA has modified or completely removed several provisions. This raises critical questions about the implications of the provisions of the new act, and whether it lives up to its name and indeed provides sufficient protection to foreign investments. The article takes the form of a comparative and analytical study of the provisions of the PIA, other South African legislation, international instruments, national and international case law and other scholarly work to assess the adequacy of the protection afforded by the act.
In the midst of a legitimacy crisis in investor-State dispute settlement regime, COVID-19 syndemic may lead States to the perfect storm as a result of the enlargement of the national policy space in order to tackle health, social and economic impacts. Thus, this piece aims to identify measures adopted by Latin American States which may be challenged by foreign investors’ claims. It also addresses the protection of national policy space and argues that the roadmap for reshaping the regime should include the following options: 1) moratorium on pending disputes and restriction on future claims related to Covid-19 measures;2) introduction of counterclaims as a general rule; 3) reference to right to regulate in investment agreements; 4) exclusion of protected areas or policies.
To leverage the possibilities of the international legal framework to their greatest advantage, multinational corporations have long resorted to nationality planning. This involves the purposeful manipulation of the factors determining corporate nationality to benefit from certain advantages, such as international investment protection. Given that this determination generally is based on formal criteria, corporations have much leeway in doing so. While that practice has generally been considered legal and legitimate within international investment law, this contribution explores the matter from the vantage point of cynicism. In doing so, it examines under which circumstances a cynical view of nationality planning might be justifiable and interrelates this with the application of the principle of abuse of rights (or abuse of process) by investment tribunals. Thus, this contribution discusses nationality planning in light of cynicism and how far that might be rectified by applying the principle of abuse of rights.
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Introduction. In light of the ongoing UN discussions over the investor-state dispute settlement reform, this article offers readers an opportunity to develop an understanding of not only the current reform process, but also of the directions of reforms and the key positions advanced by various dogmatic camps. The author reviews and analyses the most relevant quotes from the first two meetings of the UNCITRAL Working Group sessions on states’ concerns as presented by four delegations from Russia, the USA, Canada, and the European Union.Materials and methods. Сonsistent with the mandate’s call for the process to be fully transparent, the recordings of the sessions are made available online. The quotes from the first two meetings (34 th and 35 th ) of the UNCITRAL Working Group sessions, therefore, constitute the main resources for this article. There are occasional references to the comments made by international lawyers who received an Observer Delegate status in the Working Group III discussions. As for the methodology, the author opt to employ popular scientific research methods.Research results. As a result of the conducted research the author offers a comprehensive overview of the delegates' positions with respect to the reform as advanced by Russian and foreign delegates, and brings forward an argument about a direct line between those positions and a prevailing doctrine on the place of international investment law within international law.Discussion and conclusions. In this article the author underscores a critical distinction in the positions towards the public features of dispute settlement such as multilateralism and transparency. The article reveals the challenge in finding a proper definition for concrete steps of a reform (or reforms), and a framework for working process. Based on the available official positions of the states, and the UNCITRAL documents, the author reaches a conclusion about a long and controversial reform process. Yet the directions of reforms are becoming increasingly clear.
More than thirty years have passed since CAS was created. During those three decades, CAS has evolved from a relatively marginal arbitration institution to the international “supreme court” for sports that decides many of the most important cases in sports and in doing so has a profound effect on sports more generally. CAS is also one of the key actors driving the establishment and continued development of arguably one of the best examples of a transnational legal order, the lex sportiva. This warrants an in-depth analysis of CAS as an institution, the actors involved in its activities, and its decisions. This chapter introduces CAS and the book. It describes the questions that the book seeks to answer and the theoretical framework from which it departs. It then goes on to describe the data and the methods used to study that data. This includes, in particular, a brief introduction to some of the key concepts of network analysis.
The purpose of this chapter is to determine how the EU should balance the advancement of its trade and investment policy with space for public services. It begins with an overview of the CCP as it currently stands. Thereafter it examines the different policy objectives and Union values that are to inform the CCP’s advancement. A central argument is that public services are such a value. However, the CCP remains silent as to how trade and investment objectives should be balanced against public services. The chapter suggests a solution can be found in the principle of coherence. This requires EU trade and investment agreements to treat of public services in the same manner as its internal law does.
Recipient of the Walther Hug Prize 2021 (prize awarded to the authors of the best PhDs in law in Switzerland in the corresponding year). Reviews: - C. Collin, in (2019) 65 Annuaire français de droit international 790, available at <> - R. Cueni, in (2020) sui generis, available at <> - A. Facchinetti, in (2021) Canadian Yearbook of International Law = Annuaire canadien de droit international - C. Ryngaert, in (2021) 34:1 Leiden Journal of International Law 279-282 - A.-J. Saiger, in (2020) 80:3 Heidelberg Journal of International Law = Zeitschrift für ausländisches Öffentliches Recht und Völkerrecht 749-754 - M. Seiler, in (2021) 2 Schweizerische Richterzeitung ‘Justice – Justiz – Giustizia’ - P. Rossi, in (2021) International Journal of Constitutional Law
ResearchGate has not been able to resolve any references for this publication.