A Nascent Common Law: The Process of Decisionmaking in International Legal Disputes between States and Foreign Investors: International Litigation in Practice, cartea 9
Autor Frédéric Gilles Sourgensen Limba Engleză Hardback – 18 dec 2014
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.
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Specificații
ISBN-13: 9789004288195
ISBN-10: 9004288198
Pagini: 398
Dimensiuni: 155 x 235 x 25 mm
Greutate: 0.78 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria International Litigation in Practice
ISBN-10: 9004288198
Pagini: 398
Dimensiuni: 155 x 235 x 25 mm
Greutate: 0.78 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria International Litigation in Practice
Cuprins
PART 1: THE FRAMEWORK OF INVESTOR-STATE ARBITRATION
CHAPTER 1
CRITICAL MASS: THE UNIQUE ROLE OF INVESTOR-STATE ARBITRATION IN INTERNATIONAL LAW
1.1Quantitative Explanation
1.2Qualitative Explanation
1.3Functional Explanation
1.4Consequence of Doctrinal Divergence
1.5Method
CHAPTER 2
THEORETICAL UNDERPINNINGS OF THE ADJUDICATORY FRAMEWORK
2.1Beneath the Contract Law Analogy
2.1.1The Imperfections of the Contract Law Analogy
2.1.2The Virtues of the Contract Law Analogy
2.2Beneath the Treaty Analogy
2.2.1The Imperfections of the Treaty Analogy
2.2.2The Virtues of the Treaty Analogy
2.3Reconstructing Investor-State Arbitration Through Unilateral Acts
CHAPTER 3
STABILITY OF THE ADJUDICATORY FRAMEWORK
3.1The Offer and Acceptance Analogy and Denunciation of the ICSID Convention
3.2The Offer and Acceptance Analogy and the Termination of Standing Consent Instruments
3.3Denunciation and Modification Under the Treaty Analogy
3.4Denunciation and Modification of Consents to Arbitration under the Unilateral Act Model
3.5Implications for the Process of Decisionmaking
CHAPTER 4
IURA NOVIT CURIA
4.1Beneath Iura Novit Curia
4.1.1The Problems of Applying Iura Novit Curia in Investor-State Arbitration
4.1.2The Virtues of Iura Novit Curia
4.2Beneath the Terms of Reference
4.2.1The Problems of Limiting Applicable Law to the Pleadings
4.2.2The Virtues of Limiting Applicable Law to the Pleadings
4.3Reconstructing Iura Novit Curia as Urteilskraft
PART 2: ESTABLISHING JURISDICTION IN INVESTOR-STATE ARBITRATION
CHAPTER 5
THE PROBLEM OF JURISDICTIONAL JUDGMENT
5.1Burdens of Proof and Persuasion in Establishing Jurisdiction
5.1.1Existence and Scope of Consent
5.1.2Jurisdictional Facts
5.2The Shortcomings of Use of Burdens of Proof and Persuasion in the Jurisdictional Context
5.3Ex Officio Establishment of Jurisdiction
5.4The Shortcomings of Jurisdictional Decisionmaking Ex Officio
5.5Preliminary Reconciliation
CHAPTER 6
PROOF OF CONSENT
6.1The Function of Jurisdiction in International Law – Factory at Chorzów
6.2Application of the Factory at Chorzów Approach in Investor-State Arbitrations
6.3The Process of Jurisdictional Proof of Consent in Investor-State Arbitration
6.4Investor Reliance and Interpretation of Consent Instruments
6.5Clarity Presumptions Are Inconsistent with the Factory at Chorzów Approach
6.6Reevaluating Jurisdictional Decisions in Light of the Proof of Law
CHAPTER 7
ESTABLISHMENT OF JURISDICTIONAL FACTS
7.1A Level Playing Field—Proof of Jurisdictional Facts Before the International Court of Justice
7.2The Practice of Investment Tribunals
7.3De Facto Burdens of Production
7.4Burden of Production and Factual Presumptions
7.5Dispositive Use of Burdens Revisited
CHAPTER 8
THE INDUCTIVE PROCESS OF JURISDICTIONAL DECISIONMAKING
8.1Jurisdictional Balancing as Exercise of Independent Judgment
8.2Jurisdictional Balancing and the Nature of Consent
8.3The Inductive Triangulation of Jurisdictional Equilibrium Points
PART 3: DEVELOPING INVESTMENT PROTECTION AS COMMON LAW
CHAPTER 9
THE PRECEDENT PROBLEM
9.1Investor-State Awards as Evincing Customary International Law
9.2Putting the Genie Back in the Bottle – The Alleged Illegtimacy of BIT Arbitrations
9.3Grand Bargains and Self-Contained Regimes
9.4The Critical Knot
CHAPTER 10
LAW AS PROCESS
10.1Reliance upon Earlier Decisions in the Investor-State Arbitral Process
10.2Divergence of Investor-State Arbitral Awards
10.2.1The Argentine Cases
10.2.2The NAFTA Cases
10.2.3CME/Lauder Cases
10.2.4The SGS Cases
10.3Conclusion
CHAPTER 11
THE COMMON LAW SOLUTION
11.1Civil Law System and Common Law Process
11.2Investor-State Arbitration as Common Law
11.3Law in Multiple Dimensions
11.4Resolving the Problems of the Prevalent Approaches
11.5Prior Decisions as Persuasive Precedent
11.6Legitimacy Restored: The Virtue of Divergence
PART 4: CONCLUSION
CHAPTER 12
LE PLUS ÇA CHANGE, PLUS C'EST LA MÊME CHOSE
12.1Independent Judgment
12.2The Inductive, Synthetic Nature of Judgment
12.3Judgment and the Transnational Legal Process
12.4Autopoiesis Revisited
CHAPTER 1
CRITICAL MASS: THE UNIQUE ROLE OF INVESTOR-STATE ARBITRATION IN INTERNATIONAL LAW
1.1Quantitative Explanation
1.2Qualitative Explanation
1.3Functional Explanation
1.4Consequence of Doctrinal Divergence
1.5Method
CHAPTER 2
THEORETICAL UNDERPINNINGS OF THE ADJUDICATORY FRAMEWORK
2.1Beneath the Contract Law Analogy
2.1.1The Imperfections of the Contract Law Analogy
2.1.2The Virtues of the Contract Law Analogy
2.2Beneath the Treaty Analogy
2.2.1The Imperfections of the Treaty Analogy
2.2.2The Virtues of the Treaty Analogy
2.3Reconstructing Investor-State Arbitration Through Unilateral Acts
CHAPTER 3
STABILITY OF THE ADJUDICATORY FRAMEWORK
3.1The Offer and Acceptance Analogy and Denunciation of the ICSID Convention
3.2The Offer and Acceptance Analogy and the Termination of Standing Consent Instruments
3.3Denunciation and Modification Under the Treaty Analogy
3.4Denunciation and Modification of Consents to Arbitration under the Unilateral Act Model
3.5Implications for the Process of Decisionmaking
CHAPTER 4
IURA NOVIT CURIA
4.1Beneath Iura Novit Curia
4.1.1The Problems of Applying Iura Novit Curia in Investor-State Arbitration
4.1.2The Virtues of Iura Novit Curia
4.2Beneath the Terms of Reference
4.2.1The Problems of Limiting Applicable Law to the Pleadings
4.2.2The Virtues of Limiting Applicable Law to the Pleadings
4.3Reconstructing Iura Novit Curia as Urteilskraft
PART 2: ESTABLISHING JURISDICTION IN INVESTOR-STATE ARBITRATION
CHAPTER 5
THE PROBLEM OF JURISDICTIONAL JUDGMENT
5.1Burdens of Proof and Persuasion in Establishing Jurisdiction
5.1.1Existence and Scope of Consent
5.1.2Jurisdictional Facts
5.2The Shortcomings of Use of Burdens of Proof and Persuasion in the Jurisdictional Context
5.3Ex Officio Establishment of Jurisdiction
5.4The Shortcomings of Jurisdictional Decisionmaking Ex Officio
5.5Preliminary Reconciliation
CHAPTER 6
PROOF OF CONSENT
6.1The Function of Jurisdiction in International Law – Factory at Chorzów
6.2Application of the Factory at Chorzów Approach in Investor-State Arbitrations
6.3The Process of Jurisdictional Proof of Consent in Investor-State Arbitration
6.4Investor Reliance and Interpretation of Consent Instruments
6.5Clarity Presumptions Are Inconsistent with the Factory at Chorzów Approach
6.6Reevaluating Jurisdictional Decisions in Light of the Proof of Law
CHAPTER 7
ESTABLISHMENT OF JURISDICTIONAL FACTS
7.1A Level Playing Field—Proof of Jurisdictional Facts Before the International Court of Justice
7.2The Practice of Investment Tribunals
7.3De Facto Burdens of Production
7.4Burden of Production and Factual Presumptions
7.5Dispositive Use of Burdens Revisited
CHAPTER 8
THE INDUCTIVE PROCESS OF JURISDICTIONAL DECISIONMAKING
8.1Jurisdictional Balancing as Exercise of Independent Judgment
8.2Jurisdictional Balancing and the Nature of Consent
8.3The Inductive Triangulation of Jurisdictional Equilibrium Points
PART 3: DEVELOPING INVESTMENT PROTECTION AS COMMON LAW
CHAPTER 9
THE PRECEDENT PROBLEM
9.1Investor-State Awards as Evincing Customary International Law
9.2Putting the Genie Back in the Bottle – The Alleged Illegtimacy of BIT Arbitrations
9.3Grand Bargains and Self-Contained Regimes
9.4The Critical Knot
CHAPTER 10
LAW AS PROCESS
10.1Reliance upon Earlier Decisions in the Investor-State Arbitral Process
10.2Divergence of Investor-State Arbitral Awards
10.2.1The Argentine Cases
10.2.2The NAFTA Cases
10.2.3CME/Lauder Cases
10.2.4The SGS Cases
10.3Conclusion
CHAPTER 11
THE COMMON LAW SOLUTION
11.1Civil Law System and Common Law Process
11.2Investor-State Arbitration as Common Law
11.3Law in Multiple Dimensions
11.4Resolving the Problems of the Prevalent Approaches
11.5Prior Decisions as Persuasive Precedent
11.6Legitimacy Restored: The Virtue of Divergence
PART 4: CONCLUSION
CHAPTER 12
LE PLUS ÇA CHANGE, PLUS C'EST LA MÊME CHOSE
12.1Independent Judgment
12.2The Inductive, Synthetic Nature of Judgment
12.3Judgment and the Transnational Legal Process
12.4Autopoiesis Revisited
Notă biografică
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).