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Kabir Duggal and Wendy W. Cai

Abstract

Principles of Evidence in Public International Law as Applied by Investor-State Tribunals explores the fundamental principles of evidence and how these principles relating to burden of proof and standards of proof are derived.

By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally. Each principle is analyzed through historical and modern lenses to provide clarity and cohesion in understanding how fundamental principles of evidence will affect evidentiary dispositions of parties in investment arbitration and public international law cases.

Chiara Giorgetti

Abstract

This book explores and assesses two essential features in investor state dispute resolution (ISDS): the selection and the removal of arbitrators. Both topics have received increasing scrutiny and criticism, that have in turn generated calls for reforms. In its first part, this book explains the selection of arbitrators procedurally and comparatively under the most-often used arbitration rules. It then reviews critically the necessary and desirable qualities for arbitrators’ selection and appointment, and addresses some important and related policy issues, such diversity and repeat appointments. Finally, it discusses the recent calls to review the methodologies used to appoint arbitrators, and specifically the proposal by the European Commission to create a permanent tribunal to resolve international investment disputes, the UNCITRAL Working Group III Reform Process and the rules amendment proposal undertaken by the Secretariat of the International Center for Settlement of Investment Disputes (ICSID Secretariat). In its second part, the book addresses the companion and similarly important issue of challenging and removing arbitrators. It does so by reviewing first the provisions that are appplied under a variety of arbitration rules to remove arbitrators who fail to possess the necessary qualities to sit in arbitral proceedings. It then evaluates the reasons for challenge and discusses some important cases that addressed challenges. The book assesses appointments and removals in a multifaceted and comprehensive way, and includes a critical assessment of the reasons and calls for reform of the ISDS system.

Brody K. Greenwald and Jennifer A. Ivers

Abstract

In Addressing Corruption Allegations in International Arbitration, Brody K. Greenwald and Jennifer A. Ivers provide a comprehensive overview of the key issues that arise in international arbitrations involving allegations of corruption drawing upon their significant experience in these high-stakes cases, including in the only two reported investment treaty cases dismissed specifically as a result of corruption. Their monograph is a valuable resource guide that analyzes, among other things, the public policy against corruption, the requirements for establishing corruption, issues relating to the burden and standard of proof, how corruption has been proved in practice, and the legal consequences where corruption is established. Mr. Greenwald and Ms. Ivers also assess issues that arise where a sovereign State raises an arbitration defense based on alleged corruption, but does not prosecute the alleged wrongdoers in its domestic courts.

Irmgard Marboe

Abstract

The assessment of damages in investor-state arbitration involves complex legal and economic considerations. Particular challenges arise from the interdisciplinary nature of this endeavor. The present issue discusses some of the pertinent specificities in investor-state disputes reflecting the tensions between sovereignty and self-determination of states and their legal obligations towards foreign investors. These tensions are primarily present in the context of expropriation, but also commitments undertaken by states in bilateral investment treaties and contracts as well as changing economic circumstances need to be taken into consideration. The lack of valuation principles that are uniformly accepted and implemented leads to uncertainty and unpredictability in practice. The present volume analyses some of the most controversial and unsettled issues, including the choice of the valuation date, appropriate valuation methods, moral damages, and the awarding of interest.

Borzu Sabahi, Ian A. Laird and Giovanna E. Gismondi

Abstract

International Investment Law is one of the most dynamically growing fields of International Law as shown by the volume of Bilateral Investment Treaties (bits), and investment chapters in a growing numbers of regional and mega-regional trade agreements. This paper explores the origin, evolution and operation of International Investment Law. It discusses the main actors, the protections afforded to foreign investments and investors, and the content of modern bits. The legal issues and challenges International Investment Law faces today are brought into perspective. Particularly, this paper provides an assessment of the measures put forth by the European Union aimed at transforming the traditional investor-State arbitration system to an Investment Court System. An examination of the nafta re-negotiations is also presented, including the impact that ceta, a trade deal between the eu and Canada could have in the outcome of the current re-negotiations.

Filippo Fontanelli

Abstract

This is the first half of a two-part essay on jurisdiction and admissibility in investment arbitration. It focuses on the arbitration practice, whilst the second part sets these concepts in the wider framework of public international law litigation. This essay maps the objections to the tribunal’s jurisdiction (by ratio: materiae, temporis, loci and personae) and the claim’s admissibility. It offers some preliminary conclusions: in certain areas there still is no consensus; tribunals are inclined to characterise objections as jurisdictional, and rarely resort to admissibility; findings of inadmissibility draw a judgment on the claimant or the claim’s propriety (whilst jurisdictional decisions typically eschew value-judgment); tribunals failed to distinguish jurisdiction from admissibility. These findings are further explored, within a wider theoretical context, in the second part of the essay.

Patrick Dumberry

Abstract

The book addresses two questions which have been debated by scholars in the last 20 years regarding the fair and equitable treatment (‘fet’) standard found in bits. It examines the interaction between the ‘minimum standard of treatment’ (mst) and the fet standard. It first analyses the fascinating story of how the concept of the mst emerged in the early 20th Century, its subsequent decline from 1960s until the 1990s and its surprising recent ‘resurrection’ in the year 2000. This evolution has had a direct impact on the emergence and subsequent development of the fet standard and explains why States started referring to that standard instead of the mst in their investment treaties. One question addressed in this book, is whether fet is an autonomous standard of protection to be accorded to foreign investors, or is a mere reference to the mst under customary international law. Given the fact that the fet standard is found in the overwhelming majority of bits, another question which arose is whether or not it should now be considered in and of itself as a rule of customary international law.

Edited by Ian A. Laird and Borzu Sabahi

Brill Research Perspectives in International Investment Law and Arbitration provides a systematic review of key topics in this increasingly important area of international law and practice. Foreign investment (particularly FDI) continues to be a catalyst for development. To promote and protect the flow of such investments, countries worldwide have entered into thousands of investment treaties and domestic investment laws, which requires them to protect foreign investment in their territories. These treaties also allow foreign investors to directly sue governments before international arbitration tribunals for treaty violations ranging from old-fashioned “expropriation without compensation” to violations of more modern protections such as the so-called “fair and equitable” standard of treatment. The claims raise a mix of public international law, private and public law, and public policy issues requiring an examination of the legitimacy of a government’s exercise of its core functions including regulatory (involving taxation, health, and environment), administrative, and police powers and the balance of those against foreign investors’ rights under the treaties. This journal addresses these issues and aims to provide an authoritative reference guide for scholars and practitioners.

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