General Principles of Law and International Investment Arbitration

In General Principles of Law in Investment Arbitration, the authors address selected general principles of law, assessing their functions in investment arbitration. The resulting picture is that of a lively source that escapes doctrinal straitjackets and maintains its relevance.-- Provided by Publisher This chapter discusses problems of legal fragmentation of international investment law and human rights law and related legal methodology questions regarding person-oriented principles of justice (such as human rights and 'proportionality balancing') in contrast to state-centered 'principles of justice' (like international state responsibility). The chapter builds on a comprehensive survey of publicly available investor-states disputes in which human rights were invoked by the parties to dispute (investor, host state and arbitrators ex officio) or third party interveners. The assessment of these awards in Part 2 of this chapter suggests that arbitral tribunals are more open towards human rights as due process rights and as principles of procedural fairness and balancing than towards integrating human rights as an authoritative legal regime consisting of legally enforceable entitlements. The only exception to this general trend remains the right to property. However, the assessment generally reveals a lack of systematic methodology as to how to respond to human rights argumentation. Part 3 traces the legal reasons behind these observations by looking into the entry points for human rights and obstacles for integration as they emerge from the texts of BITs and IIAs. This part demonstrates the possibilities that already exist for arbitrators to take into account human rights, such as jurisdiction clauses, applicable law clauses, definitions of 'investments,' the customary rules of treaty interpretation, preambles of BITs, relevant protection standards and rules on awarding damage compensation. The conclusion suggests that the shortcomings are not an inevitable result of textual limitations, as alternative outcomes of ISDS disputes are legally possible and justifiable. In the absence of any development of a clear methodology, textual adjustment might thus not counter fragmentation. Systemic reform might be necessary to ensure transparent, coherent and balanced approaches to human rights argumentation Under the hood of investment arbitration : general principles of law / Andrea Gattini, Attila Tanzi and Filippo Fontanelli -- General principles of law on the legal force of provisional measures in international investment arbitration / Federico Lenci -- Transparency in the arbitral procedure / Maria Beatrice Deli -- General rules and principles on state responsibility and damages in investment arbitration : some critical issues / Zeno Crespi Reghizzi -- Investment arbitration and EU general principles of law : current developments / Francesco Munari and Chiara Cellerino -- Jurisdiction ratione temporis in international investment arbitration / Andrea Gattini -- Jurisdiction and admissibility in international investment law / August Reinisch -- Multiple proceedings / Christoph Schreuer -- Annulment of awards / Piero Bernardini -- The relevance of the foreign investor's good faith / Attila Tanzi -- Human rights law in international investment arbitration / Vivian Kube and E.U. Petersmann -- Unjust enrichment as a general principle of law in investment arbitration / Christina Binder -- Sustainable development and investment: trends in law-making and arbitration / Pia Acconci -- Police powers doctrine and international investment law / Catharine Titi -- An exercise in equivocation : a critique of legitimate expectations as a general principle of law under the fair and equitable treatment standard / Josef Ostransky -- The national treatment obligation / Matteo Sarzo -- Most-favoured-nation clauses and the centrality and limits of general principles / N. Jansen Calamita and Ewa Zelazna -- Indirect expropriation : a comparative approach / Ursula Kriebaum General Principles of Law in Investment Arbitration surveys the function of general principles in the field of international investment law, particularly in investment arbitration. The authors'analysis provides a representative case study of how this informal source operates alongside and in the absence of other sources of applicable law. The contributions are divided into two parts, devoted respectively to substantive principles and procedural ones. The principles discussed in the book are selected for their currency in the practice, their contested nature and their relevance. General Principles of Law in Investment Arbitration surveys the function of general principles in the field of international investment law, particularly in investment arbitration. The authors' analysis provides a representative case study of how this informal source operates alongside and in the absence of other sources of applicable law. The contributions are divided into two parts, devoted respectively to substantive principles and procedural ones. The principles discussed in the book are selected for their currency in the practice, their contested nature and their relevance "[This book] surveys the function of general principles in the field of international investment law, particularly in investment arbitration. The authors' analysis provides a representative case study of how this informal source operates alongside and in the absence of other sources of applicable law. The contributions are divided into two parts, devoted respectively to substantive principles and procedural ones. The principles discussed in the book are selected for their currency in the practice, their contested nature and their relevance."-- Back cover