The main focus of the present article is on the entanglement between four bodies of international law sensitive to foreign investment in the creation and/or operation hydroelectric industry: i.e. international investment law, human rights law, international water law and private international law to the extent that public international law rules on conflict of laws on civil liability for transboundary damage are concerned. This horizontal approach to the analysis is supplemented by a vertical one looking at the interactions between international and domestic law. Consideration of the different bodies of international law in question is associated to that of the adjudicative, and non-adjudicative, means of dispute settlement available under each such bodies of law. On that score, the role of the foreign investor in a litigation scenery will be considered, primarily as claimant, but also, prospectively, in relation to the situation in the State hosting the investment is, or may become, respondent in inter-State litigation.
This chapter investigates the importance and function of the investor’s good faith in investment arbitration. Good faith, a bona fide general principle of law, operates at several stages of the proceedings and gives rise to different more specific doctrines. Ascertainment of the investor’s good faith and the investment’s legality informs the tribunal’s determinations regarding its own jurisdiction, the claim’s admissibility, the State’s liability and the quantum of compensation. The chapter illustrates the role of good faith and its proximate declensions (estoppel, clean hands), accounting for the tribunals’ preference for nuanced solutions. The chapter also addresses the principle’s new frontier, relating to the investor’s compliance with standards of international law (which transcends the simple requirement of domestic legality). Ultimately, good faith is portrayed also as an interpretive benchmark rather than an autonomous rule of conduct: the case law shows that ‘bad-faith defences’ raised by the host State may steer the tribunal’s use of the applicable law and weaken – if not altogether bar – the investor’s claim.
The present article offers a summary overview of the evolutions of the modern international legal setting focusing on its constituent legal pillars. Such pillars, based on the evolving concept of sovereignty and on the basic rules on recognition, are considered in their constituent nature, irrespective of their conformity, or not, with domestic constitutional models and of the recent discourse on constitutionalism. On the one hand, the analysis considers the evolving normative constraints on sovereignty placed by the law-making process carried out by sovereign nation-states in the pursuit of both their individual interests on the basis of reciprocity and of global solidarity through jus cogens rules. On the other hand, the limitations of this normative process are emphasized, so as to indicate the largely aspirational nature of the legal dynamics. The tensions between the equality attribution to sovereignty and recurring hegemonic attempts ‐ from the Napoleonic to the US neo-imperialist ones ‐ and their impact on international law are also looked at in a historical perspective with a view to acquiring the means to decipher the present and perspective dynamics of redistribution of power on the international scene. Finally, the article addresses the ongoing legal discourse on the paradigm of sovereignty expressing scepticism on alternative models as better tools for enhancing good international governance. It is suggested that the existing governmental model should be fully put to fruition through the full awareness of civil society and the enhancement of governmental accountability ‐ in international and domestic affairs, alike ‐ through the legal principle of due diligence.
This article addresses the different approaches to access to water and sanitation by two separate bodies of international law, i.e. water law and human rights law. It shows the slow evolution of the former from a purely inter-State economic dimension, dealing with competing sovereign claims over transboundary watercourses, to one concerned also the needs of peoples and individuals. In light of these developments at the customary level, it illustrates the significant progress in the field at the conventional and Pan-European level represented by the 1999 UN/ECE London Protocol on Water and Health. An analysis of the latter is carried out against the background of the authoritative interpretation of Articles 11 and 12 of the 1966 UN Covenant on Economic, Social and Cultural Rights contained in the 2002 General Comment 15 by the Committee of the Covenant. This comparative analysis shows the full complementarity and, in many respects, even the coincidence between those instruments. From a normative structural point of view, the common denominator between them appears to lie in the due diligence nature of their main obligations enhancing the state legal accountability for water services.
This article addresses the relationship between the protection of foreign investment and the protection of public interests of host States, with special regard to the public utilities sector when privately operated by foreign investors. It primarily focuses on an assessment of the scope of the concept of public interest particularly in the light of the interpretative developments concerning national security and general well-being that may be affected by foreign investment. The article highlights the trend gradually emerging from the recent international investment arbitration case law towards the harmonization between foreign investment interests and local public interests. It considers the policy rationale behind such a trend, as well as the legal reasoning and principles, with special regard to due diligence and proportionality, which may possibly enhance it.
Tarcisio Gazzini and Attila Tanzi
A large number of BITs concluded by France contain quite a peculiar clause (for instance Article 10 BIT with Argentina), which has been recently the object of questionable interpretations and applications in EDF International S.A. et al. v. Argentina and Mr. Franck Charles Arif v. Moldova. Both tribunals allowed the claimants to benefit, through the MNF clause, from umbrella clauses contained in BITs with third States. It is argued that neither tribunal has rigorously interpreted the relevant provisions in the basic treaty, nor ensured compliance with the ejusdem generis principle. The legal uncertainty that surrounds these provisions is detrimental for foreign investors and States alike. Concerned States should consider taking the measures necessary to clarify, jointly or individually, the content of these provisions and of the obligations stemming from them.