Evolution in Investment Treaty Law and Arbitration de Chester Brown

Evolution in Investment Treaty Law and Arbitration

Chester Brown

Kate Miles

International investment law is in a state of evolution. With the advent of investor-State arbitration in the latter part of the twentieth century - and its exponential growth over the last decade - new levels of complexity, uncertainty and substantive expansion are emerging. States continue to enter into investment treaties and the number of investor-State arbitration claims continues to rise. At the same time, the various participants in investment treaty arbitration are faced with increasingly difficult issues concerning the fundamental character of the investment treaty regime, the role of the actors in international investment law, the new significance of procedure in the settlement of disputes and the emergence of cross-cutting issues. Bringing together established scholars and practitioners, as well as members of a new generation of international investment lawyers, this volume examines these developments and provides a balanced assessment of the challenges being faced in the field.

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Part I. Introduction: 1. Introduction: evolution in investment treaty law and arbitration Chester Brown and Kate Miles; Part II. Shifts in Fundamental Character: 2. Conflict and conflicts in investment treaty arbitration: ethical standards for counsel Philippe Sands; 3. Recent developments in the approach to identifying an 'investment' pursuant to Article 25 of the ICSID Convention David Williams and Simon Foote; 4. Investment treaty interpretation and customary investment law: preliminary remarks Martins Paparinskis; 5. The public-private dualities of international investment law and arbitration Alex Mills; 6. Outline of a normative framework for evaluating interpretations of investment treaty protections Jonathan Bonnitcha; 7. Investment treaty arbitration as global administrative law: what this might mean in practice Daniel Kalderimis; Part III. Actors in International Investment Law: 8. Sovereign wealth funds and international investment law Markus Burgstaller; 9. Investor misconduct: jurisdiction, admissibility, or merits? Andrew Newcombe; 10. The European Union as a global investment partner: law, policy and rhetoric in the attainment of development assistance and market liberalization Paul James Cardwell and Duncan French; 11. The fair and equitable treatment standard and the circumstances of the host state Nick Gallus; 12. The plea of necessity under customary international law: a critical review in light of the Argentine cases Avidan Kent and Alexandra Harrington; 13. Making way for the public interest in international investment agreements Suzanne Spears; 14. The participation of sub-national government units as amici curiae in international investment disputes Andrea Bjorklund; Part IV. The New Significance of Procedure: 15. The new rules on participation of non-disputing parties in ICSID arbitration: blessing or curse? Christina Knahr; 16. The role of procedure in the development of substantive law: the case of Section B of Chapter 11 of NAFTA Sergio Puig; 17. Navigating the parallel universe of investor-state arbitrations under the UNCITRAL rules Judith Levine; 18. The scope of 'amount of compensation' dispute resolution clauses in investment treaties J. Romesh Weeramantry and Claire Wilson; 19. Interference by a local court and failure to enforce: actionable under a bilateral investment treaty? Andrew Stephenson, Lee Carroll and Jonathon DeBoos; 20. Bias challenges in investor-state arbitration: lessons from international commercial arbitration Sam Luttrell; Part V. Engagement with Cross-Cutting Issues: 21. Protecting intellectual property rights under BITs, FTAs, and TRIPS: conflicting regimes or mutual coherence? Henning Grosse Ruse-Khan; 22. Stabilisation clauses and sustainable development: drafting for the future Antony Crockett; 23. A new investment deal in Asia and Africa: land leases to foreign investors Anastasia Telesetsky; 24. Thirst for profit: water privatisation, investment law and a human right to water Emma Truswell; 25. Economic development at the core of the international investment regime Omar García-Bolívar; 26. Regulatory chill and the threat of arbitration: a view from political science Kyla Tienhaara; Part VI. Conclusions: 27. Evolution or revolution in international investment arbitration? The descent into normlessness M. Sornarajah; 28. Evolution or revolution? Franklin Berman.