Transnational Actors in International Investment Law (European Yearbook of International Economic Law)

"This book reviews for the first time some of the less frequently addressed actors in international investment law. Traditional studies concerning actors in international investment law have tended to focus on arbitrators, claimant investors and respondent states. This book explores transnational actors, such as UNCITRAL, the EU, international standardizing bodies, domestic and international courts and tribunals, etc., shedding light on their transnational activity and pluralistic role in international investment law"--Back cover Preface 6 Contents 9 UNCITRAL and the Governance of International Investments 10 1 Introduction 11 2 ``An International Clearing House for Unification Activities ́ ́ 12 3 Business as Usual: The Legal Implications of the NIEO 16 4 Tectonic Shifts Under UNCITRAL? ISDS Reform and Institutional Imagination 20 5 Conclusion 24 References 26 EU as a Driver in the Judicialization Process of International Investment Disputes: ISDS Reform and EU Judicial System 28 1 Introduction 29 2 UNCITRAL and ISDS Reform Alternatives 32 2.1 The EU Proposal for a Multilateral Investment Court 35 2.2 An Important Feature: The Open Architecture 37 3 Judicialization of ISDS and EU Judicial System 40 3.1 Jurisdictional Clauses 42 3.2 Determination of the Respondent 44 3.3 Jurisdiction and Applicable Law 47 3.4 Disconnection or Judicial Dialogue? 49 4 Conclusions 51 References 51 Compulsory Optionality: International Standardizing Bodies as Transnational Actors in International Investment Law 54 1 Introduction 55 2 The Definition of International Standards 56 2.1 The Classification of International Standardizing Bodies 56 2.2 The Six Core Principles of International Standard-Setting 57 3 International Standards and WTO Law 58 3.1 The Scope and Extent of the Normativity Loan Contained in the TBT and the SPS Agreements 59 3.2 The Evidentiary Pertinence of International Standards in WTO Law 60 4 IIAs Containing Direct References to International Standards 63 5 Interpretation and Application of IIA Clauses with Direct References to International Standards 65 5.1 International Standards and the Definition of ``Investment ́ ́ in IIAs 65 5.2 International Standards and the ``Fair and Equitable Treatment ́ ́ Clauses in IIAs 68 5.3 International Standards and Non-discrimination Clauses in IIAs 71 6 International Standards and the Assessment of Contributory Fault in Investment Arbitration 76 7 Conclusions 78 References 79 New Actors in Investment Arbitration: The Legitimate Government 82 1 Introduction 83 2 The Venezuelan Situation: The Co-existence of Two Governments 83 2.1 Context 83 2.2 The Appointment of the ``Procurador Especial ́ ́ 87 2.3 ICSID Arbitrations 88 3 Jurisdiction of ICSID Arbitral Tribunals and Annulment Committees to Determine the Legitimate Representative of a Respondent... 90 3.1 Jurisdiction Under the ICSID Rules 90 3.1.1 Parties ́ Representatives Under the ICSID Rules 90 3.1.2 The Authority to Represent a Party Under the ICSID Rules 91 3.1.3 The Tribunal ́s Power to Control a Party ́s Representation Under the ICSID Arbitration Rules 93 3.1.4 The Situation Created by Venezuela ́s Dual Government 96 3.1.5 Decisions Made by Annulment Committees on Venezuela ́s Representation 98 3.2 Jurisdiction Under the ICSID Additional Facility Rules 101 3.2.1 The Distinction Between ICSID and AF Arbitrations 102 3.2.2 Consequences for the Annulment and Enforcement of Awards 103 3.2.3 Case Study: Seat of Arbitration: Paris, France 105 4 Possible Practical Solutions 108 5 Conclusion 111 References 111 International Non-investment Courts and Tribunals as Transnational Actors in International Investment Law and Arbitration? 113 1 Introduction 114 2 Forms of Involvement of Non-investment Adjudicative Bodies in Investment Law and Arbitration 115 2.1 Case Law Cross-Referencing 116 2.2 Coordinating Parallel Proceedings 119 3 The Limited Jurisdiction of the ICJ Under Article 64 of the ICSID Convention 121 3.1 Interstate Disputes Over the ``Application ́ ́ of the ICSID Convention 122 3.2 Interstate Disputes Over the ``Interpretation ́ ́ of the ICSID Convention 126 4 The Impact of Interstate Proceedings Over Sovereignty Disputes on Investment Law and Arbitration 130 4.1 Sovereignty Disputes and the Legality of (the Authorization of) the Investment 131 4.2 The Territorial Applicability of the Investment Treaty 135 5 Concluding Remarks 137 References 138 Apropos of the External Precedent: Judicial Cross-Pollination Between Investment Tribunals and International Courts 140 1 Introduction 141 2 Fragmentation and Coherence: A Definition 142 3 The Role of the External Precedent in the Investment Arbitration Caselaw 146 4 The Role of the Investment Arbitration Caselaw in the ICJ Jurisprudence 152 5 Conclusions 154 References 156 Domestic Courts as Transnational Actors in International Investment Law: A Canadian Perspective 158 1 Introduction 159 2 National Legitimation: Why the Domestic Courts ́ Voices Matter in the Context of International Investment Law? 163 3 Courts and Investment Awards: Canadian Perspective 166 3.1 Standards of Review 167 3.2 What Does the Court Say? Looking at the Dicta of the Federal Court in Bilcon v. Clayton 171 4 Future Modes of Interaction 174 5 Concluding Remarks 175 References 176 A Middle Path of ISDS Reform: The Principle of Comity as a Means of Strengthening the Role of National Courts in the Enforceme... 178 1 A Changing Landscape of the Enforcement of Investment Arbitral Awards 179 2 The European Commission ́s Interventions as Amicus Curiae in Intra-EU Disputes 181 2.1 EU Law as a Jurisdictional Defence 181 2.2 EU Law as a Substantive Defence 183 3 The Decisions of National Courts in Enforcement Proceedings 184 3.1 The ``Achmea avalanche ́ ́ 184 3.2 The ``Micula saga ́ ́ 187 4 A Parallel World of ``Autonomy ́ ́? The CJEU ́s Opinion on CETA 192 5 Old Solutions to New Problems: Comity as the Way Forward? 196 References 199