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Vol 21 No 11 Nov/Dec 2016

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A Nascent Common Law: The Process of Decisionmaking in International Legal Disputes between States and Foreign Investors


ISBN13: 9789004288195
Published: January 2015
Publisher: Brill Nijhoff
Country of Publication: The Netherlands
Format: Hardback
Price: £148.00



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In A Nascent Common Law: The Process of Decisionmaking in International Legal Disputes Between States and Foreign Investors Frédéric Gilles Sourgens submits that investor-state dispute resolution relies upon an inductive, common law decisionmaking process, which reveals a necessary plurality of first principles within investor-state dispute resolution. Relying upon, amongst others, Wittgenstein's Philosophical Investigations, the book explains how this plurality of first principles does not devolve into arbitrary indeterminacy.

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.

Subjects:
Arbitration and Dispute Resolution, International Investment Law
Contents:
PART 1: THE FRAMEWORK OF INVESTOR-STATE ARBITRATION

CHAPTER 1
CRITICAL MASS: THE UNIQUE ROLE OF INVESTOR-STATE ARBITRATION IN INTERNATIONAL LAW

1.1 Quantitative Explanation
1.2 Qualitative Explanation
1.3 Functional Explanation
1.4 Consequence of Doctrinal Divergence
1.5 Method

CHAPTER 2
THEORETICAL UNDERPINNINGS OF THE ADJUDICATORY FRAMEWORK

2.1 Beneath the Contract Law Analogy
2.1.1 The Imperfections of the Contract Law Analogy
2.1.2 The Virtues of the Contract Law Analogy
2.2 Beneath the Treaty Analogy
2.2.1 The Imperfections of the Treaty Analogy
2.2.2 The Virtues of the Treaty Analogy
2.3 Reconstructing Investor-State Arbitration Through Unilateral Acts

CHAPTER 3
STABILITY OF THE ADJUDICATORY FRAMEWORK

3.1 The Offer and Acceptance Analogy and Denunciation of the ICSID Convention
3.2 The Offer and Acceptance Analogy and the Termination of Standing Consent Instruments
3.3 Denunciation and Modification Under the Treaty Analogy
3.4 Denunciation and Modification of Consents to Arbitration under the Unilateral Act Model
3.5 Implications for the Process of Decisionmaking

CHAPTER 4
IURA NOVIT CURIA

4.1 Beneath Iura Novit Curia
4.1.1 The Problems of Applying Iura Novit Curia in Investor-State Arbitration
4.1.2 The Virtues of Iura Novit Curia
4.2 Beneath the Terms of Reference
4.2.1 The Problems of Limiting Applicable Law to the Pleadings
4.2.2 The Virtues of Limiting Applicable Law to the Pleadings
4.3 Reconstructing Iura Novit Curia as Urteilskraft

PART 2: ESTABLISHING JURISDICTION IN INVESTOR-STATE ARBITRATION

CHAPTER 5
THE PROBLEM OF JURISDICTIONAL JUDGMENT

5.1 Burdens of Proof and Persuasion in Establishing Jurisdiction
5.1.1 Existence and Scope of Consent
5.1.2 Jurisdictional Facts
5.2 The Shortcomings of Use of Burdens of Proof and Persuasion in the Jurisdictional Context
5.3 Ex Officio Establishment of Jurisdiction
5.4 The Shortcomings of Jurisdictional Decisionmaking Ex Officio
5.5 Preliminary Reconciliation

CHAPTER 6
PROOF OF CONSENT

6.1 The Function of Jurisdiction in International Law – Factory at Chorzów
6.2 Application of the Factory at Chorzów Approach in Investor-State Arbitrations
6.3 The Process of Jurisdictional Proof of Consent in Investor-State Arbitration
6.4 Investor Reliance and Interpretation of Consent Instruments
6.5 Clarity Presumptions Are Inconsistent with the Factory at Chorzów Approach
6.6 Reevaluating Jurisdictional Decisions in Light of the Proof of Law

CHAPTER 7
ESTABLISHMENT OF JURISDICTIONAL FACTS

7.1 A Level Playing Field—Proof of Jurisdictional Facts Before the International Court of Justice
7.2 The Practice of Investment Tribunals
7.3 De Facto Burdens of Production
7.4 Burden of Production and Factual Presumptions
7.5 Dispositive Use of Burdens Revisited

CHAPTER 8
THE INDUCTIVE PROCESS OF JURISDICTIONAL DECISIONMAKING

8.1 Jurisdictional Balancing as Exercise of Independent Judgment
8.2 Jurisdictional Balancing and the Nature of Consent
8.3 The Inductive Triangulation of Jurisdictional Equilibrium Points

PART 3: DEVELOPING INVESTMENT PROTECTION AS COMMON LAW

CHAPTER 9
THE PRECEDENT PROBLEM

9.1 Investor-State Awards as Evincing Customary International Law
9.2 Putting the Genie Back in the Bottle – The Alleged Illegtimacy of BIT Arbitrations
9.3 Grand Bargains and Self-Contained Regimes
9.4 The Critical Knot

CHAPTER 10
LAW AS PROCESS

10.1 Reliance upon Earlier Decisions in the Investor-State Arbitral Process
10.2 Divergence of Investor-State Arbitral Awards
10.2.1 The Argentine Cases
10.2.2 The NAFTA Cases
10.2.3 CME/Lauder Cases
10.2.4 The SGS Cases
10.3 Conclusion

CHAPTER 11
THE COMMON LAW SOLUTION

11.1 Civil Law System and Common Law Process
11.2 Investor-State Arbitration as Common Law
11.3 Law in Multiple Dimensions
11.4 Resolving the Problems of the Prevalent Approaches
11.5 Prior Decisions as Persuasive Precedent
11.6 Legitimacy Restored: The Virtue of Divergence

PART 4: CONCLUSION

CHAPTER 12
LE PLUS ÇA CHANGE, PLUS C'EST LA MÊME CHOSE

12.1 Independent Judgment
12.2 The Inductive, Synthetic Nature of Judgment
12.3 Judgment and the Transnational Legal Process
12.4 Autopoiesis Revisited