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Vol 23 No 3 March/April 2018

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Substantive Law in Investment Treaty Arbitration: The Unsettled Relationship Between International Law and Municipal Law

ISBN13: 9789041132239
New Edition ISBN: 9789041161031
Published: July 2010
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: Out of print

The difficult coexistence of municipal law and international law is nowhere more evident than in the context of investment treaty disputes. Investment treaty arbitral tribunals commonly address, as a matter of international law, an alleged breach of a contract (or other legal obligation concerning an investment) that is often regulated by municipal law. However, there is no selfcontained legal system that provides substantive rules of direct applicability for these tribunals. In practice, approaches range from complete exclusion of municipal law to complete reliance on municipal law. While the former has no defensible foundation in international law, an absolute renvoi to municipal law runs afoul of the principle that international law governs the characterization of an internationally wrongful act.

Arguing that international investment law requires a more nuanced consideration of the role of municipal law than many arbitral tribunals have implemented to date, this book provides a detailed, systematic approach to the interplay of municipal law and international law in investment disputes. The treatment focuses on the role of municipal law in providing the substance for concepts such as contracts, property rights, and shareholders’ rights, which are relevant in the international investment treaty context but are not regulated under international law. Among the questions addressed are the following:

  • If the application of international law requires a renvoi to municipal law, how should that renvoi be conducted?
  • In investment disputes, what role, if any, should municipal law have in assessing State attribution under international law?
  • Should shareholders receive compensation for damages suffered by their company due to a violation of an international obligation vis-à-vis the company?
  • May foreign investors rely on ‘expectations’ as an autonomous source of rights in investment treaty disputes?
  • Does an alleged breach of an umbrella clause transform a breach of contract claim covered by municipal law into an international law claim?

The book’s chapters answer these and other investment law questions in depth, drawing on analyses of the issues and implications in arbitral decisions. This work will be welcomed by arbitrators, arbitration counsel, corporate counsel, and scholars of international arbitration.

Arbitration and Dispute Resolution, International Investment Law
Introduction The Unsettled Relationship between International Law and Municipal Law
Chapter 1 Attribution under the Law of State Responsibility
Chapter 2 The Notion of ‘Investment’
Chapter 3 The Nationality of an Investor
Chapter 4 The Concept of Property Chapter 5 Shareholders' Rights
Chapter 6 Contract versus Treaty Claims
Chapter 7 Umbrella Clauses: When a Breach of Contract May Become a Breach of Treaty Conclusion The Unsettled Relationship between International and Municipal Law
Appendix 1 Hermann Abs and Lord Shawcross, Draft Convention on Investments Abroad (1959)
Appendix 2 Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments (1959)
Appendix 3 Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens (1961)
Appendix 4 Organisation for Economic Co-operation and Development Draft Convention on the Protection of Foreign Property (1967) Index

Series: International Arbitration Law Library

The Functions of Arbitral Institutions ISBN 9789041162175
Published August 2016
Kluwer Law International
Party-Appointed Arbitrators in International Commercial Arbitration ISBN 9789041166715
Published April 2016
Kluwer Law International
International Arbitration and Cross-Border Insolvency: Comparative Perspectives ISBN 9789041154194
Published September 2014
Kluwer Law International
Parallel Proceedings in International Arbitration: A Comparative European Perspective ISBN 9789041152640
Published May 2014
Kluwer Law International
Piercing the Veil of State Enterprises in International Arbitration ISBN 9789041151629
Published April 2014
Kluwer Law International
International Arbitration and the Permanent Court of Arbitration ISBN 9789041147660
Published August 2013
Kluwer Law International
Challenge and Disqualification of Arbitrators in International Arbitration ISBN 9789041137999
Published January 2012
Kluwer Law International
China-Africa Dispute Settlement: The Law, Economics and Culture of Arbitration ISBN 9789041136749
Published November 2011
Kluwer Law International
Confidentiality in International Commercial Arbitration ISBN 9789041132260
Published July 2011
Kluwer Law International
Bias Challenges in International Arbitration: The Need for a Real Danger Test ISBN 9789041131911
Published November 2009
Kluwer Law International
Arbitrability: International & Comparative perspectives ISBN 9789041127303
Published March 2009
Kluwer Law International
Force Majeure and Hardship Under General Contract Principles ISBN 9789041127921
Published January 2009
Kluwer Law International
Pervasive Problems in International Arbitration ISBN 9789041124500
Published May 2006
Kluwer Law International
Complex Arbitrations: Multiparty, Multicontract, Multi-Issue and Class Actions ISBN 9789041124425
Published December 2005
Kluwer Law International
Provisional Measures in International Commercial Arbitration ISBN 9789041123534
Published August 2005
Kluwer Law International
Towards a Science of International Arbitration: Collected Empirical Research ISBN 9789041123220
Published December 2004
Kluwer Law International
Online Dispute Resolution: Challenges for Contemporary Justice ISBN 9789041123183
Published December 2004
Kluwer Law International
Corruption in International Trade and Commercial Arbitration ISBN 9789041122360
Published March 2004
Kluwer Law International
The Healthy Award: Challenges in International Commercial Arbitration ISBN 9789041120113
Published March 2003
Kluwer Law International
The International Effectiveness of the Annulment of an Arbitral Award ISBN 9789041117175
Published January 2002
Kluwer Law International
Arbitration in Complex International Contracts ISBN 9789041116628
Published October 2001
Kluwer Law International
Insolvency Proceedings and Commercial Arbitration ISBN 9789041111159
Published June 2000
Kluwer Law International
Arbitration and Mediation in International Business ISBN 9789041102423
Published June 1998
Kluwer Law International
Out of print
Iran-United States Claims Tribunal in Action ISBN 9781853339028
Published March 1993
Brill Academic Publishers
Out of print