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Vol 21 No 10 Oct/Nov 2016

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Contracting with Sovereignty: State Contracts and International Arbitration


ISBN13: 9781841136578
Published: January 2011
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £65.00



Low stock.

The application of international law to state contracts with foreign private companies was the cause of continuing controversy throughout much of the 20th century.

This is because state contractual undertakings with foreign investors raise a number of legal issues that do not fit well into the traditional pattern of international law as a law between states, but which also cannot be satisfactorily resolved by the exclusive application of the municipal law of the contracting state. In recent years the controversy has gained new prominence as a result of the advent of a new form of international dispute settlement, namely the mechanism of investment treaty arbitration.

The main feature of this model of dispute resolution is that foreign investors are entitled to bring claims against states directly before international arbitral tribunals. This model, which emerged strongly in the late 1990s, has generated a rapidly expanding body of arbitral case law and in the process become one of the most significant new developments in modern international law.

Many of the disputes subject to investment treaty arbitration have their origin in contractual commitments made by states toward foreign investors. At the same time international commercial arbitration continues to be the preferred means of dispute resolution in contracts between foreign investors and states or state entities. This book explores how contract claims against states are dealt with in the two parallel processes of treaty-based and contract-based arbitration.

The book charts the development of commercial arbitration into an international legal remedy in this field, discusses the theoretical problems which it creates for international law, and outlines the most significant substantive features of the international law applicable to contract claims as developed by arbitral tribunals on the basis of treaty standards and customary law.

Subjects:
Public International Law, Arbitration and Dispute Resolution
Contents:
1. Introduction
1.1 The Topic
1.2 Approach-International Law as 'Process'
1.3 Arbitral Practice as a Source of Law
1.4 Interpretation-Applied and Constructed Ratio
5. Materials
2. History and Development-A Hybrid Genealogy

2.1 Introduction
2.2 Investment Protection under Classical International Law-The Doctrine of Diplomatic Protection
2.3 Mixed Claims Commissions
2.4 Internationalised Commercial Arbitration
2.5 Convergence of Practices-Showing the Way to Contemporary 'Investment Treaty Arbitration'

3. A Theoretical Discourse-Conceptualising the Applicability of International Law to State Contracts
3.1 International Law and State Contracts-Challenging Traditional Doctrine
3.2 The Concept of Internationalisation
3.3 Conflicting Perspectives of International Law
3.4 The Applicability of International Law to State Contracts-A Reconceptualisation
3.5 The Authority of Arbitral Tribunals to Apply International Law

4. Procedural Aspects-Jurisdiction and Enforceability
4.1 Introduction
4.2 International Commercial Arbitration-Detaching Arbitral Authority from Municipal Law
4.3 Jurisdiction and Enforcement under the ICSID Convention
4.4 Investment Treaty Jurisdiction over Contract Claims
4.5 Overlapping Jurisdictions-Contractual Jurisdiction Clauses and Investment Treaty Jurisdiction

5. Substantive Principles Applicable to Contract Claims-The Concept of 'Legitimate Expectations'
5.1 Introduction
5.2 Contract Claims and the 'Expropriation Standard'
5.3 Umbrella Clauses-Elevating Contract Claims into Treaty Claims
5.4 Protection of Legitimate Expectations under the Fair and Equitable Treatment Standard
5.5 Customary International Law-The Internationalised Contract and Protection of Acquired Rights
5.6 The Compensation Standard

6. Contractual Restriction of Public Powers
6.1 Sovereignty and Commitment
6.2 The Notion of Sovereignty
6.3 Permanent Sovereignty and the Right to Expropriate Foreign Investment
6.4 'Police Powers' and Protection of Legitimate Expectations
6.5 Reserved Powers as a Principle of Interpretation

7. Summary and Final Comments
7.1 Introduction
7.2 The International Legal Process of Contract Claims-Summary of Chapters 2, 3 and 4
7.3 Substantive Law and Teleology-Summary of Chapters 5 and 6
7.4 A Concluding Comment

Series: Hart Studies in International Law

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Diplomatic Interference and the Law (eBook) ISBN 9781509902781
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Diplomatic Interference and the Law ISBN 9781849464369
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Non-State Actors in International Law ISBN 9781849465113
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Statelessness: The Enigma of the International Community ISBN 9781849469692
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Non-State Actors in International Law (eBook) ISBN 9781509901869
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The Contractual Nature of the Optional Clause ISBN 9781849468664
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The Contractual Nature of the Optional Clause (eBook) ISBN 9781509901449
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An Equitable Framework for Humanitarian Intervention ISBN 9781849464048
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An Equitable Framework for Humanitarian Intervention (eBook) ISBN 9781782251279
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Europe and Extraterritorial Asylum ISBN 9781849462709
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Europe and Extraterritorial Asylum (eBook) ISBN 9781847319074
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Promises of States under International Law ISBN 9781849462327
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Promises of States under International Law (eBook) ISBN 9781847318787
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Accounting for Hunger: The Right to Food in the Era of Globalization ISBN 9781849462266
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The Militarisation of Peacekeeping in the Twenty-First Century (eBook) ISBN 9781847318183
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The Militarisation of Peacekeeping in the Twenty-First Century ISBN 9781849461146
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International Humanitarian Law and Terrorism ISBN 9781849461375
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Multi-Sourced Equivalent Norms in International Law ISBN 9781849461450
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Multi-Sourced Equivalent Norms in International Law (eBook) ISBN 9781847317827
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Reflections on the UN Declaration on the Rights of Indigenous Peoples ISBN 9781841138787
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Human Dignity and the Foundations of International Law ISBN 9781849460897
Published June 2010
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Human Dignity and the Foundations of International Law (eBook) ISBN 9781847318060
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Africa: Mapping New Boundaries in International Law
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The Democratic Legitimacy of International Law ISBN 9781841138176
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Human Dignity and the Foundations of International Law ISBN 9781841133577
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£50.00
Counterterrorism: Democracy’s Challenge ISBN 9781841138183
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Africa: Mapping New Boundaries in International Law
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Forced Migration, Human Rights and Security
Edited by: Jane McAdam
ISBN 9781841137704
Published March 2008
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£45.00
Human Security and International Law: Prospects and Problems ISBN 9781841136103
Published December 2007
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Biotechnologies and International Human Rights ISBN 9781841137032
Published February 2007
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Transnational Corporations and Human Rights ISBN 9781841136530
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Biotechnology and International Law ISBN 9781841136318
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Enforcing International Law Norms Against Terrorism
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ISBN 9781841135663
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Regional Organisations and Development of Collective Security ISBN 9781841134802
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Enforcing International Law Norms Against Terrorism
Edited by: Andrea Bianchi
ISBN 9781841134307
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The Permanent International Criminal Court ISBN 9781841132815
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The Chapter VII Powers of the United Nations Security Council ISBN 9781841134222
Published January 2004
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Toxics and Transnational Law: International and European Regulation of Toxic Substances as Legal Symbolism
Marc PallemaertsVrije Universiteit Brussel, Brussels and Universite Libre de Bruxelles, Brussels
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