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The Interpretation of Investment Treaties

Author: Trinh Hai Yen

Publisher: Martinus Nijhoff Publishers

Published: 2014-06-05

Total Pages: 408

ISBN-13: 9004274545

Within the context of an exponential proliferation of investment treaties with virtually uniform language and structure, The Interpretation of Investment Treaties by Trinh Hai Yen reveals the neglect or misapplication of international rules on treaty interpretation by tribunals in arbitral cases. Such practice has raised the question of the legitimacy of the interpretative process and the engendered inconsistent interpretations of investment treaties. The book proposes three interpretative approaches aimed at ensuring that adjudicators find legitimate meaning in the challenging generality and vagueness of investment treaty language. It also provides a comprehensive analysis of legislative solutions for states through a case study of the ASEAN Comprehensive Investment Agreement, as well as a comparative analysis of modern and traditional investment treaties.

Bilateral Investment Treaties

Author: Kenneth J. Vandevelde

Publisher: Oxford University Press

Published: 2010-04-08

Total Pages: 574

ISBN-13: 0199888140

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Bilateral Investment Treaties: History, Policy, and Interpretation organizes, summarizes and comments upon the arbitral awards interpreting and applying BIT provisions. Policymakers and practitioners will find a thorough introduction to the operation of the BITs, including the principal arguments and case authorities on both sides of the major issues in international investment law. The book is intended to be a single-volume reference covering every important development in the 50 years of BIT programs worldwide, from 1959 until 2009. Author Kenneth Vandevelde argues that the primary purpose of the BITs is to promote the application of the rule of law to foreign investment, while a secondary purpose is to create a liberal investment regime. He further argues that BITs are based on six core principles: reasonableness, security, nondiscrimination, access, transparency and due process. The book explains each of these principles and analyzes the major BIT provisions based on them. Vandevelde addresses the host of complex questions that BITs engender: Do bilateral investment treaties attract foreign investment or otherwise contribute to economic development? Do BITs limit host state regulatory discretion too much? Why should countries continue to conclude BITs? What is meant by BIT guarantees of "fair and equitable treatment" and "full protection and security"? What is the scope of the BIT provision for most-favored-nation treatment? The book's expert analysis of these questions makes it useful to policy makers in the area of international economic relations, attorneys representing multinational companies, and anyone interested in the process of economic globalization.

Contractual Renegotiations and International Investment Arbitration

Author: Aikaterini Florou

Publisher: BRILL

Published: 2020-03-02

Total Pages: 261

ISBN-13: 9004407472

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In Contractual Renegotiations and International Investment Arbitration, Aikaterini Florou explores the complex phenomenon of the renegotiation of investor-state contracts. The author reconstructs the relationship between those contracts and the overarching investment treaties using an original interpretative methodology based on transaction cost economics and relational contract theory.

Contract Interpretation in Investment Treaty Arbitration

Author: Yuliya Chernykh

Publisher: BRILL

Published: 2022-01-17

Total Pages: 629

ISBN-13: 9004414703

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Contracts are relevant, frequently central, for a significant number of investment disputes. Yet, the way tribunals ascertain their content remains largely underexplored. How do tribunals interpret contracts in investment treaty arbitration? How should they interpret contracts? Does national law have any role to play? Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue addresses these questions. The monograph offers a valuable insight into the practice and theory of contract interpretation in investment treaty arbitration. By proposing a theoretical frame for seamless integration of contract interpretation into the overall structure of decision-making, the book contributes to predictability, coherence, sufficiency and correctness of the tribunals’ interpretative practices in investment treaty arbitration.

Arbitral Awards as Investments

Author: Maximilian Clasmeier

Publisher: Kluwer Law International B.V.

Published: 2017-01-01

Total Pages: 290

ISBN-13: 9041183582

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The rise of international investment arbitration has resulted in the emergence of a number of intriguing legal and political challenges. One of those is the question of whether or not arbitral awards may constitute investments pursuant to existing investment treaties. In approaching the problem, it is the interconnection between theory and practice that delivers solutions. This book presents the first detailed analysis of the existing tribunals’ approaches to date. In examining the principles of treaty interpretation, their application in arbitral practice, shortcomings and their ramifications and possible routes to improvement, the book addresses the following questions: - What is the foundation of interpretation in public international law and when is it adequately carried out? - Can arbitral awards constitute investments, offering relief from frustrated enforcement attempts? - Is there a trend of convergence of commercial and investment arbitration? - Do respective interpretative outcomes stem from adequate interpretation? - What are the ramifications, if interpretation is not fully adequate? - What are the feasible routes to greater interpretive discipline? The book is mindful of the underlying public international law principles, such as state sovereignty and the increasing legal and political dynamics of international investment law. This is the first in-depth treatise on arbitral awards’ qualification as investments within international investment law. Its detailed analysis of the interpretive approaches, their foundation and consequences will, from a theoretical and practical point of view, prove of great value to international tribunals, counsel and sovereign entities. Maximilian Clasmeier has gained international arbitration experience in the dispute resolution practices of international law firms in Frankfurt, Düsseldorf and Singapore and worked for the World Bank Group in Washington, D.C.

Law and Practice of Investment Treaties

Author: Andrew Paul Newcombe

Publisher: Kluwer Law International B.V.

Published: 2009-01-01

Total Pages: 644

ISBN-13: 9041123512

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The book focuses on the substantive protections accorded to investors and investments and on the variations among jurisdictions. Among the many specific issues and topics that arise in the course of the discussion are the following: - problems of transparency and conflict of interest; - the recent growth in IIAs between and among developing nations; - the effect of new model bilateral investment treaties (BITs); - the ability of non-disputing parties to participate in investor-state arbitration; - theories of the interaction of foreign direct investment (FDI) and BITs; - investor-state arbitration as an evasion of public regulatory authority; - the role of investment funds in international investment; - 'fork in the road' provisions; and - institutional versus ad hoc arbitration. International business and other investors will greatly appreciate the in-depth information and insightful guidance in this solidly useful book. It will also be welcomed by jurists and students as a significant milestone in the development of principles in a quickly growing field of practice that is still plagued with inconsistencies.

Treaty Interpretation in Investment Arbitration

Author: J Romesh Weeramantry

Publisher: OUP Oxford

Published: 2012-03-08

Total Pages: 1343

ISBN-13: 019163817X

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The rise of investment arbitration in the last decade has generated an unprecedented body of arbitral case law. The work of these arbitral tribunals has provided scholars and practitioners with public international law jurisprudence, including materials on treaty interpretation which has not yet been thoroughly analysed. This book evaluates the contribution of investment arbitration treaty interpretation jurisprudence to international law, covering all key aspects of treaty interpretation. Included in the book's coverage are awards which feature in prominent discussions or in applications of treaty interpretation rules. Among the significant portion of arbitral awards analysed, which deal with investment treaties, are ICSID awards, ad hoc investment arbitration awards, NAFTA awards, and Energy Charter Treaty awards. The extensive analysis of investment arbitration awards and decisions has also been used to create a table highlighting both the references to principles of treaty interpretation and instances in which they were rejected. This invaluable insight into the practice of investment tribunals will be of interest to both practitioners and academics alike. Foreword by by Professor Michael Reisman, Yale Law School _

Interpretation of International Investment Treaties

Author: Tarcisio Gazzini

Publisher: Bloomsbury Publishing

Published: 2016-11-03

Total Pages: 423

ISBN-13: 1782255664

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This book offers a systematic study of the interpretation of investment-related treaties – primarily bilateral investment treaties, the Energy Charter Treaty, Chapter XI NAFTA as well as relevant parts of Free Trade Agreements. The importance of interpretation in international law cannot be overstated and, indeed, most treaty claims adjudicated before investment arbitral tribunals have raised and continue to raise crucial and often complex issues of interpretation. The interpretation of investment treaties is governed by the Vienna Convention on the Law of Treaties (VCLT). The disputes relating to these treaties, however, are rather peculiar as they place multinational companies (or natural person) in opposition to sovereign governments. Fundamental questions dealt with in the study include: Are investment treaties a special category of treaty for the purpose of interpretation? How have the rules on interpretation contained in the VCLT been applied in investment disputes? What are the main problems encountered in investment-related disputes? To what extent are the VCLT rules suited to the interpretation of investment treaties? Have tribunals developed new techniques concerning treaty interpretation? Are these techniques consistent with the VCLT? How can problems relating to interpretation be solved or minimised? How creative have arbitral tribunals been in interpreting investment treaties? Are States capable of keeping effective control over interpretation?

International Investment Law and Legal Theory

Author: Jörg Kammerhofer

Publisher: Cambridge University Press

Published: 2021-05-06

Total Pages: 391

ISBN-13: 1108839177

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A theoretical analysis of the structure of expropriation in investment law, investigating the foundations for contemporary scholarship and practice.

Commentaries on Selected Model Investment Treaties

Author: Chester Brown

Publisher: OUP Oxford

Published: 2013-01-17

Total Pages: 1018

ISBN-13: 0191651966

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The existing literature on the substantive and procedural aspects of bilateral investment treaties (BITs) relies heavily on investment treaty arbitration decisions as a source of law. What is missing is a comprehensive, analytical review of state practice. This volume fills this gap, providing detailed analyses of the investment treaty policy and practice of nineteen leading capital-exporting states and emerging market economies. The authors are leading experts in government, academia, and private legal practice, and their chapters are largely based on primary source materials. Each chapter provides a description of the regulatory or policy framework governing foreign investment (both inflows and outflows) with a historical presentation of the state's Model BIT; an examination of internal government processes and practices relating to treaty negotiation, conclusion, ratification and record-keeping; and a detailed article-by-article analytical commentary of the state's Model BIT, elucidating the policy behind each provision and highlighting the ways in which the actual investment treaty practice of that state deviates from this standard text. This commentary is supplemented by the case law relevant to that state's investment treaties. This commentary will be of immense assistance to counsel and arbitrators engaged in arguing and determining the proper interpretation of BITs and investment chapters in Free Trade Agreements, and to government officials and scholars engaged in BIT policy formulation and implementation. It will serve as a standard resource for legal practitioners, scholars, policy-makers and other stakeholders in the field of international investment policy, law, and arbitration.