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Vol 23 No 3 March/April 2018

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Scamell and Gasztowicz on Land Covenants

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International Investment Law and Comparative Public Law

Edited by: Stephen W. Schill

ISBN13: 9780199589104
Published: October 2010
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £215.00

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Investment treaty arbitration has a hybrid nature combining public international law (as regards its substance) with elements of international commercial arbitration (mainly as regards procedure).

However, in essence and function it deals with a special, internationalised form of judicial review of governmental conduct that is more akin to the judicial control of governmental action provided for by national administrative and constitutional law than to either classic inter-state dispute resolution or international commercial arbitration.

This has been recognised in some academic writing and several awards, where reference to national administrative law concepts and principles of international law-based judicial review of governmental action, such as international trade or human rights law, is used to help specify and apply the open-ended concepts of investment treaties.

In-depth conceptualization is however often lacking. The current study is the first, pioneering effort to bring these under-developed ad hoc references to comparative and international administrative law concepts into a deeper theoretic and systematic framework.

The book thus intends to develop a 'bridge' between treaty-based international investment arbitration and comparative administrative law on both a theoretical and practical level. The major obligations in investment treaties (indirect expropriation, fair and equitable treatment, national treatment, umbrella/sanctity of contract clause) and major procedural principles will be compared with their counterpart in comparative public law, both on the domestic as well as international level.

That 'bridge' will allow international investment law to benefit from the comparative public law experience, which could enhance its legitimacy, its political acceptance, and its ability to develop more finely-tuned interpretations of central treaty obligations.

Comparative Law, International Investment Law
Part I - Concepts and Foundations
1: Stephan W. Schill: International Investment Law and Comparative Public Law - An Introduction
2: Giacinto della Cananea: Minimum Standards of Procedural Justice in Administrative Adjudication
3: Benedict Kingsbury and Stephan W. Schill: Public Law Concepts to Balance Investors' Rights with State Regulatory Actions in the Public Interest - The Concept of Proportionality

Part II - Investor Rights in Comparative Perspective
4: Markus Perkams: The Concept of Indirect Expropriation in Comparative Public Law - Searching for Light in the Dark
5: Stephan W. Schill: Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law
6: Helge Elisabeth Zeitler: Full Protection and Security
7: Ali Ehsassi: Cain & Abel: Congruence and Conflict in the Application of the Denial of Justice Principle
8: Jürgen Kurtz: The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO
9: Freya Baetens: Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and Investment Law
10: Stephan W. Schill: Umbrella Clauses as Public Law Concepts in Comparative Perspective
11: Abba Kolo: Transfer of Funds: The Interaction between the IMF Articles of Agreement and Modern Investment Treaties: A Comparative Law Perspective

Part III - Comparative Administrative and Comparative Constitutional Law on Selected Issues
12: Irmgard Marboe: State Responsibility and Comparative State Liability for Administrative and Legislative Harm to Economic Interests
13: Hector A. Mairal: Legitimate Expectations and Informal Administrative Representations
14: Kim Talus: Revocation and Cancellation of Concessions, Operating Licenses and Other Beneficial Administrative Acts
15: Catherine Donnelly: Public-Private Partnerships: Award, Performance and Remedies
16: Christina Binder and August Reinisch: Economic Emergency Powers: A Comparative Law Perspective
17: Federico Lenzerini: Property Protection and Protection of Cultural Heritage
18: Christian Tietje and Karoline Kampermann: Taxation and Investment: Constitutional Law Limitations on Tax Legislation in Context
19: Paul B. Stephan: Comparative Taxation Procedure and Tax Enforcement

Part IV - Dispute Settlement, Arbitral Procedure, and Remedies
20: Gus Van Harten: Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law
21: Chester Brown: Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law
22: William Burke-White and Andreas von Staden: The Need for Public Law Standards of Review in Investor-State Arbitrations
23: Anne van Aaken: Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View
24: Borzu Sabahi and Nicholas J. Birch: Comparative Compensation for Expropriation
25: Alessandra Asteriti and Christian J. Tams: Transparency and Representation of the Public Interest in Investment Treaty Arbitration;