A Nascent Common Law: The Process of Decisionmaking in International Legal Disputes Between States and Foreign Investors Frédéric Gilles Sourgens submits that investor-state dispute resolution relies upon an inductive, common law decisionmaking process, which reveals a necessary plurality of first principles within investor-state dispute resolution. Relying upon, amongst others, Wittgenstein's Philosophical Investigations, the book explains how this plurality of first principles does not devolve into arbitrary indeterminacy.
A Nascent Common Law provides an alternative account to current theoretical conceptions of investor-state arbitration. It explains that these theories cannot adequately resolve a key empirical challenge: tribunals frequently reach facially inconsistent results on similar questions of law. Sourgens makes an inductive approach, focused on the manner of decisionmaking by tribunals in the context of specific records that can explain this inconsistency.
Frédéric Gilles Sourgens is an Associate Professor of Law at Washburn University School of Law. Before joining academia, he was an international lawyer first at Fulbright & Jaworski LLP and then Milbank, Tweed, Hadley & McCloy. He writes regularly on transnational law and legal theory and currently serves as Managing Editor for a leading reporter of investor-state decisions. A national of Germany and France, he was educated at Tulane University School of Law (New Orleans, LA, USA), the University of York (UK), the University of Oslo (Norway), the University of Warwick (UK), and the United World College of the Adriatic (Duino, Italy).
Table of contents
PART 1: THE FRAMEWORK OF INVESTOR-STATE ARBITRATION CHAPTER 1 CRITICAL MASS: THE UNIQUE ROLE OF INVESTOR-STATE ARBITRATION IN INTERNATIONAL LAW 1.1 Quantitative Explanation 1.2 Qualitative Explanation 1.3 Functional Explanation 1.4 Consequence of Doctrinal Divergence 1.5 Method CHAPTER 2 THEORETICAL UNDERPINNINGS OF THE ADJUDICATORY FRAMEWORK 2.1 Beneath the Contract Law Analogy 2.1.1 The Imperfections of the Contract Law Analogy 2.1.2 The Virtues of the Contract Law Analogy 2.2 Beneath the Treaty Analogy 2.2.1 The Imperfections of the Treaty Analogy 2.2.2 The Virtues of the Treaty Analogy 2.3 Reconstructing Investor-State Arbitration Through Unilateral Acts CHAPTER 3 STABILITY OF THE ADJUDICATORY FRAMEWORK 3.1 The Offer and Acceptance Analogy and Denunciation of the ICSID Convention 3.2 The Offer and Acceptance Analogy and the Termination of Standing Consent Instruments 3.3 Denunciation and Modification Under the Treaty Analogy 3.4 Denunciation and Modification of Consents to Arbitration under the Unilateral Act Model 3.5 Implications for the Process of Decisionmaking CHAPTER 4 IURA NOVIT CURIA 4.1 Beneath Iura Novit Curia 4.1.1 The Problems of Applying Iura Novit Curia in Investor-State Arbitration 4.1.2 The Virtues of Iura Novit Curia 4.2 Beneath the Terms of Reference 4.2.1 The Problems of Limiting Applicable Law to the Pleadings 4.2.2 The Virtues of Limiting Applicable Law to the Pleadings 4.3 Reconstructing Iura Novit Curia as Urteilskraft PART 2: ESTABLISHING JURISDICTION IN INVESTOR-STATE ARBITRATION CHAPTER 5 THE PROBLEM OF JURISDICTIONAL JUDGMENT 5.1 Burdens of Proof and Persuasion in Establishing Jurisdiction 5.1.1 Existence and Scope of Consent 5.1.2 Jurisdictional Facts 5.2 The Shortcomings of Use of Burdens of Proof and Persuasion in the Jurisdictional Context 5.3 Ex Officio Establishment of Jurisdiction 5.4 The Shortcomings of Jurisdictional Decisionmaking Ex Officio 5.5 Preliminary Reconciliation CHAPTER 6 PROOF OF CONSENT 6.1 The Function of Jurisdiction in International Law – Factory at Chorzów 6.2 Application of the Factory at Chorzów Approach in Investor-State Arbitrations 6.3 The Process of Jurisdictional Proof of Consent in Investor-State Arbitration 6.4 Investor Reliance and Interpretation of Consent Instruments 6.5 Clarity Presumptions Are Inconsistent with the Factory at Chorzów Approach 6.6 Reevaluating Jurisdictional Decisions in Light of the Proof of Law CHAPTER 7 ESTABLISHMENT OF JURISDICTIONAL FACTS 7.1 A Level Playing Field—Proof of Jurisdictional Facts Before the International Court of Justice 7.2 The Practice of Investment Tribunals 7.3 De Facto Burdens of Production 7.4 Burden of Production and Factual Presumptions 7.5 Dispositive Use of Burdens Revisited CHAPTER 8 THE INDUCTIVE PROCESS OF JURISDICTIONAL DECISIONMAKING 8.1 Jurisdictional Balancing as Exercise of Independent Judgment 8.2 Jurisdictional Balancing and the Nature of Consent 8.3 The Inductive Triangulation of Jurisdictional Equilibrium Points PART 3: DEVELOPING INVESTMENT PROTECTION AS COMMON LAW CHAPTER 9 THE PRECEDENT PROBLEM 9.1 Investor-State Awards as Evincing Customary International Law 9.2 Putting the Genie Back in the Bottle – The Alleged Illegtimacy of BIT Arbitrations 9.3 Grand Bargains and Self-Contained Regimes 9.4 The Critical Knot CHAPTER 10 LAW AS PROCESS 10.1 Reliance upon Earlier Decisions in the Investor-State Arbitral Process 10.2 Divergence of Investor-State Arbitral Awards 10.2.1 The Argentine Cases 10.2.2 The NAFTA Cases 10.2.3 CME/Lauder Cases 10.2.4 The SGS Cases 10.3 Conclusion CHAPTER 11 THE COMMON LAW SOLUTION 11.1 Civil Law System and Common Law Process 11.2 Investor-State Arbitration as Common Law 11.3 Law in Multiple Dimensions 11.4 Resolving the Problems of the Prevalent Approaches 11.5 Prior Decisions as Persuasive Precedent 11.6 Legitimacy Restored: The Virtue of Divergence PART 4: CONCLUSION CHAPTER 12 LE PLUS ÇA CHANGE, PLUS C'EST LA MÊME CHOSE 12.1 Independent Judgment 12.2 The Inductive, Synthetic Nature of Judgment 12.3 Judgment and the Transnational Legal Process 12.4 Autopoiesis Revisited