The Interpretation of International Investment Law: Equality, Discrimination and Minimum Standards of Treatment in Historical Context (International Litigation in Practice, 6)

In The Interpretation of International Investment Law: Equality, Discrimination and Minimum Standards of Treatment in Historical Context , author Todd Weiler demonstrates how historiographical analysis should be adopted in the interpretation of international investment law obligations. Weiler subjects some of the most commonly held beliefs about the nature and development of international investment law to a critical re-appraisal, based upon meticulously assembled historical record. In the process, the book provides readers with a fresh perspective on some of the oldest obligations in international law. Contents List of Abbreviations Table of Cases Cited Table of Instruments Cited Foreword Preface Chapter One Fundamental Norms of International Investment Law 1. The Relative ‘Newness’ of International Investment Law 2. The Notion of Sovereignty 3. Individual Self-Help on an International Plane 4. Dispelling the Myths and Misunderstandings of International Investment Law 5. International Investment Law: An Historical Treatment 6. Conclusion Chapter Two Historical Analysis and the Interpretation of International Investment Law 1. On Hunting Wild Geese: The Pursuit of Subjective Intent 2. The Functional Element in Investment Treaty Interpretation 3. The Structural Element in Investment Treaty Interpretation 4. The Arbitrator’s Role as Interpreter in Investor-State Arbitration 5. Historical Analysis and Treaty Interpretation 6. The Principle of Contemporaneity in Treaty Interpretation 7. The Idea of Jurisprudence Constante in International Investment Law 8. Conclusion Chapter Three Protection and Security: The Standard in Historical Context 1. International Law, Methodology and Approach 2. Ancient and Dark Ages Hospitality 3. Medieval Hospitality 4. Enlightenment Bilateralism and the Unilateral Duty to Protect 5. The Customary International Law Minimum Standard of Treatment of Aliens 6. The Standard of Civilisation and the Community of Nations 7. International Lawyers as Apologists for Colonialism? 8. Conclusion Chapter Four Protection and Security: Before and After the Standard of Civilisation 1. The Haudenosaunee Confederacy 2. China 3. 20th Century Protection & Security in Treaty Practice 4. Progeny of the P&S Standard 5. Protection & Security and the Development of Human Rights 6. Conclusion Chapter Five Fair and Equitable Treatment: A ‘True Story’ 1. Justiciability and ‘International Law’ Clauses 2. The FET in Different Treaty Contexts 3. Is ‘Equitable’ a ‘Reasonable’ Choice of Term? 4. The Post-War Search for Standards Such as FET 5. The FET Standard – Yours, Courtesy of the U.S. Government 6. A Note on Interpretation and Contemporaneity 7. From Bilateralism to Multilateralism 8. Fair and Equitable Treatment and Custom: Are We There Yet? 9. Conclusion Chapter Six Fair and Equitable Treatment versus the CILMSTA: ‘Bureaucrats Run Amok’ 1. Before the [Re-]Interpretation Controversy 2. The [Re-]Interpretation Controversy 3. Bureaucrats Run Amok? 4. After the [Re-]Interpretation Controversy 5. Conclusion Chapter Seven Fair and Equitable Treatment and Arbitrary or Discriminatory Measures 1. The FET Standard as a Backup or Proxy for Treatment No Less Favourable 2. Non-Discrimination and the Doctrine on Denials of Justice 3. Good Faith and the Meaning of Arbitrariness 4. Deference 5. Conclusion Chapter Eight Development of the ‘Treatment No Less Favourable’ Standard: From the Beginning Until 1948 1. Early History of the TNLF Standard 2. The 19th Century Experience – TNLF Outlives Mercantilism 3. A Near-Death Experience for TNLF: Widespread Protectionism Returns 4. The GATT/ITO Negotiations 5. The “Liberal Socialism” of James Meade and the British Mandarinate 6. The U.N. Conferences on Trade & Employment: London, Geneva & New York (1946–1947) 7. Havana, the End of the Road: ITO Charter Post-Mortem 8. “Green Shoots” – U.S. Post War (and Post-ITO) Policy on Foreign Investment 9. Conclusion Chapter Nine Treatment No Less Favourable and International Investment Law 1. National Treatment Returns Home, before Promptly Splitting in Two and Heading Off in Different Directions 2. Economic Patterns, Globalisation and IIL Doctrine 3. Equal Access, Non-Discrimination, the ‘Open Door’ and the ‘Level Playing Field’ 4. Nationality-Based Discrimination versus Effective Equality of Opportunity 5. The Unique Character of the TNLF Standard within the Context of International Investment Law 6. Conclusion Chapter Ten Conclusion Select Bibliography History 1. Historiography 2. Ancient and Classical 3. Early Modern to 17th Century 4. 18th and 19th Centuries 5. 20th Century Politics and Economics 6. 20th Century Personalities 7. The Havana Charter Theory 1. Political and Economic Theory 2. Early Works of International Law 3. International Law Theory 4. Customary International Law 5. Public International Law 6. International Economic Law 7. From Calvo’s Doctrine to the NIEO to Today Treaties 1. Interpretation 2. Consistency and Jurisprudence Constante 3. Investor-State Arbitration 4. Multilateral Rules on Investment Regulation 5. United States Treaty Practice Law & Practice 1. Arbitration 2. Mixed Claims Commissions 3. International Trade Law 4. Regulating International Investment Regulations – Before BITs 5. Regulating International Investment Regulations – After BITs Doctrine 1. Equality and Discrimination 2. Most Favored Nation Treatment 3. Good Faith and Abuse of Rights in International Law 4. Equity and International Law 5. State Responsibility, Aliens and Diplomatic Protection 6. Human Rights Law and Investment Law 7. Expropriation 8. Denial of Justice Doctrine 9. Fair & Equitable Treatment / Minimum Standard of Treatment 10. NAFTA Chapter 11 Index In 'the Interpretation Of International Investment Law: Equality, Discrimination And Minimum Standards Of Treatment In Historical Context', Author Todd Weiler Demonstrates How Historical Analysis Should Be Adopted In The Interpretation Of International Investment Law Obligations. Weiler Subjects Some Of The Most Commonly Held Beliefs About The Nature And Development Of International Investment Law To A Critical Re-appraisal, Based Upon Meticulously Assembled Historical Record. In The Process, The Book Provides Readers With A Fresh Perspective On Some Of The Oldest Obligations In International Law. This Stimulating Contribution To The Discourse On Interpretation Of International Investment Law Standards Sheds New Light On The Formation Of Such Primary Obligations As Fair And Equitable Treatment, Protection And Security And The Customary International Law Minimum Standard Of Treatment For Aliens. Additionally, A Thought-provoking Historical Analysis Explains Why A One-size-fits-all Approach To Obligations Found In Both Trade And Investment Treaties, Such As Mfn Treatment And National Treatment, Must Be Rejected. With A Keen Attention To Detail, 'the Interpretation Of International Investment Law: Equality, Discrimination And Minimum Standards Of Treatment In Historical Context' Reveals The Dynamic Relationship Between Historical Analysis, Critical Theory And The Construction Of Both Customary And Treaty Norms In International Investment Law. The Fundamental Norms Of International Investment Law -- Historical Analysis And The Interpretation Of International Investment -- Protection And Security : The Standard In Historical Context -- Protection And Security : The Standard In Historical Context -- Fair And Equitable Treatment : A 'true Story' -- Fair And Equitable Treatment Versus The Cilmsta : 'bureaucrats Run Amok' -- Fair And Equitable Treatment And Arbitrary Or Discriminatory Measures -- Development Of The 'treatment No Less Favourable' Standard : From The Beginning Until 1948 -- Treatment No Less Favourable In International Investment Law : From The Beginning Until Today. By Todd Weiler. Includes Bibliographical References (pages [459]-511) And Index. Demonstrates how historiographical analysis should be adopted in the interpretation of international investment law obligations. The author subjects some of the most commonly held beliefs about the nature and development of international investment law to a critical re-appraisal, based upon meticulously assembled historical record.