Globalization-Driven Innovation: The Investor as a Partial Subject in Public International Law

An Inquiry into the Nature and Limits of Investor Rights

In: The Journal of World Investment & Trade
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  • 1 Federal Ministry for Economic Affairs and Energy, Berlin, Germany, tillmann.braun@bmwi.bund.de

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Given the current state of development of international investment law, it is surprising that, to date, neither the actual nature of the investor’s rights resulting from investment treaties, nor the possible consequences which arise for the investor, the states and international law, have been sufficiently defined. This is all the more astounding as the intrinsic nature and the possible limits of the investor’s rights are not only of theoretical interest, they are also decisive for the resolution of many substantial practical problems as well as for the positioning of international investment law within public international law. Furthermore, recent arbitration rulings concerning the fundamental question of whether the investor’s rights are of a direct, a derivative or a contingent nature, Archer Daniels (2007), Corn Products (2008) and Cargill (2009), demonstrate diametrically differing approaches. In this article, the author shows that neither the procedural nor material rights of the investor are simply derived from the home state but are – in clear contrast to the model of diplomatic protection – in fact to be understood as individual direct rights. The investor is elevated to the status of a (partial) subject in international law. Of course, the states are, and remain, the ‘masters of the treaties’ and can correct or even revoke them at any time with prospective effect. However, as long as investment treaties confer distinct rights on the investor, arbitral tribunals and states have to recognize these direct rights and the states must also accept that they can also be applied against them. The direct rights paradigm has varied and remarkable consequences for the investor, the states and modern public international law.

  • 15

    Art. 2009.1 NAFTA stipulates explicitly: “The Parties shall establish and maintain a roster of up to 30 individuals who are willing and able to serve as panelists.” Such a list did not exist at that time and would also have required the agreement of all three NAFTA treaty states, Art. 2011 NAFTA.

  • 71

    Douglas, supra note 57, p. 169; Jacomijn J. van Haersolte-van Hof and Anne Hoffmann, ‘The Relationship between International Tribunals and Domestic Courts’ in P. Muchlinski, F. Ortino and C. Schreuer (eds.), The Oxford Handbook of International Investment Law (OUP 2008) 962, 994.

  • 85

    Parlett, supra note 49, p. 110.

  • 94

    Spiermann, supra note 86, p. 186 : “archetype of treaties conferring rights to individuals.”

  • 113

    Paparinskis, supra note 88, p. 8; Georg Dahm, Jost Delbrück and Rüdiger Wolfrum, Völkerrecht, Vol. I/3 Die Formen völkerrechtlichen Handelns, Die inhaltliche Ordnung der internationalen Gemeinschaft (Walter de Gruyter 2002) 989; Jochen A. Frowein, in W. Fiedler, E. Klein and A. Schnyder, Gegenmaßnahmen, BDGV, Vol. 37 (1998) 110.

  • 144

    Spiermann, supra note 86, p. 207; Hoffmann, supra note 75, p. 94.

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