1 The Agreement on Promotion, Protection and Guarantee of Investments Among Member States of the Organisation of the Islamic Conference, signed in Baghdad on 5 June 1981 (entered into force in February 1988).
2 The North America Free Trade Agreement was concluded between the governments of the United States, Canada, and Mexico on 17 December 1992 and entered into force on 1 January 1994. On 30 November 2018, the three governments signed a revised agreement, the United States–Mexico–Canada Agreement, as a replacement to the NAFTA.
3 The Energy Charter Treaty was signed on 17 December 1994 and entered into force on 16 April 1998. Currently there are fifty-three Signatories and Contracting Parties to the Treaty. This includes both the European Union and Euratom.
4 UNCTAD Report, Quantitative Data on Bilateral Investment Treaties and Double Taxation Treaties, available at http://www.unctad.org.
5 UNCTAD Report, Recent Developments in the International Investment Regime, May 2018, available at http:/www.unctad.org.
6 International Law Association, Final Report of the Committee, Statement of Principles Applicable to the Formation of General Customary International Law, 2000, pp. 2 and 3.
7 Colombian-Peruvian Asylum Case, Judgment of 20 November 1950, ICJ Reports 1950, p. 266.
9 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, p. 14, para. 183.
10 North Sea Continental Shelf Judgment, Judgment of 20 February 1969, ICJ Reports 1969, p. 3.
12 UNCTAD Report at n. 5.
15 Rubins and Kinsella, International Investment, Political Risk and Dispute Resolution: A Practitioner’s Guide, Oceana Publications, 2005, p. 160.
17 The Charter of the United Nations: A Commentary, edited by Bruno Simma, Oxford University Press, 1995, p. 767. See also Wolfke, Custom in Present International Law, Springer, 1993, p. 84 (‘Broadly speaking, the opinions range from attributing to General Assembly resolutions an independent and important custom-making capacity to much more sober opinions limiting the role of such resolutions to an indirect but by no means negligible factor in the custom-forming process. The present author shares the latter opinion.’); Higgins, The Taking of Property by the State: Recent Developments International Law, 176 Recueil des Cours, 1983, Vol. III, 259, 268, argues that Resolutions which are at times non-binding can, if they affirm principles of international law which overwhelming numbers of States adhere to opinio juris, evidence developing customary international law (p. 293).
18 Oppenheim’s International Law, Section 407, Property of Aliens: Expropriation, Vol. 1, edited by Jennings and Watts, 9th Edition, Oxford University Press, 1992, p. 924.
19 International Law Association, Final Report, Rule 28, p. 55 at n. 6.
21 General Assembly Resolution 1515 (XV) on Concerted Action for Economic Development of Economically Less Developed Countries, available at http://www.un.org.
22 General Assembly Resolution 1803 (XVII) Permanent Sovereignty Over Natural Resources adopted 14 December 1962, available at http://www.un.org.
24 General Assembly Resolution 2200A (XXI) International Covenant on Economic, Social and Cultural Rights, available at http://www.un.org.
25 Lillich, Chapter 1, The Current Status of the Law, International Law of State Responsibility for Injuries to Aliens, University of Virginia Press, 1983, p. 14.
26 General Assembly Resolution 3171 (XXVIII) ‘Permanent Sovereignty Over Natural Resources’ adopted 17 December 1973, available at http://www.un.org.
28 General Assembly Resolution 3201 (S-VI) Declaration on the Establishment of a New International Economic Order adopted 1 May 1974 A/RES/S-6/3201, available at http://www.un.org.
32 International Law Association, Final Report, p. 58 at n. 6.
33 Lillich, 1983, pp. 15–16 at n. 25; Weston, The New International Economic Order and the Deprivation of Foreign Proprietary Wealth: Reflections upon the Contemporary International Law Debate in Lillich, 1983, p. 93 at n. 25, ‘A break from the past seems clear. The so-called public purpose (or public utility) doctrine is disregarded. The doctrine of alien non-discrimination is ignored. And the much-heralded international law principle of compensation appears to be nationalised or domesticated, i.e. rejected as an international regulatory norm. Provoking not a little consternation and complaint among capital exporting constituencies, the provision is a vivid demonstration of the central NIEO demand for restructured perspectives and patterns of international economic order.’
34 The significance of the General Assembly Resolutions on customary international law was considered by the tribunals in Texaco Overseas Petroleum Company v. The Government of The Libyan Arab Republic and Others, Ad Hoc Award of 19 January 1977, YCA 1979, at p. 177 et seq.; Libyan American Oil Company v. Government of the Libyan Arab Republic, Ad Hoc Award 12 April 1977, YCA 1981, at p. 89 et seq.; and The American Independent Oil Company (AMINOIL) v. The State of Kuwait, Ad Hoc Award of 24 May 1982, YCA 1984, at p. 71 et seq.
35 General Assembly Resolutions 6662 (VII) of 21 December 1952, 1515 (XV) of 15 December 1960, 1803 (XVII) of 14 December 1962, 2200A (XXI) of 16 December 1966, 3171 (XXVIII) of 17 December 1973, 3201 (SV-1) of 1 May 1974, 3281 (XXIX) of 12 December 1974, available at http://www.un.org. In Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, ICJ Reports 2005, p. 168, para. 244, the ICJ recalled that the principle of permanent sovereignty over natural resources is expressed in the General Assembly Resolutions and recognized that the principle of permanent sovereignty is a principle of customary international law.
36 General Assembly Resolution 1803 (XVII) of 14 December 1962, para. 4.
37 General Assembly Resolution 1803 (XVII) provides that expropriation must be exercised in accordance with international and municipal law and ‘appropriate compensation’ must be paid; General Assembly Resolution 3171 (XXVIII) of 17 December 1973 provides the State should determine the amount and mode of compensation payable in accordance with its applicable law; General Assembly Resolution 3281 (XXIX) provides that ‘appropriate compensation’ must be paid taking into account the relevant laws and regulations of the State and all circumstances that the State considers relevant.
38 Schwebel, The Influence of Bilateral Investment Treaties on Customary International Law, Proceedings of the Annual Meeting (American Society of International Law), Vol. 98 (31 March—3 April 2004), p. 27.
39 Schwebel, A BIT About ICSID, 23(1) ICSID Review—Foreign Investment Journal, Spring 2008, p. 3.
40 Schwebel at n. 38. Schwebel concludes that ‘when BITs prescribe treating the foreign investor in accordance with customary international law, they should be understood to mean the standard of international law embodied in the terms of some two thousand concordant BITs.’
41 Schill, The Multilateralisation of International Investment Law, Cambridge University Press, 2009, p. 84.
42 James Crawford, Brownlie’s Principles of International Law, 8th Edition, Oxford University Press, p. 31.
43 McLachlan QC, Investment Treaties and General International Law, 57(2) International and Comparative Law Quarterly, 2008, p. 361.
44 Dolzer, New Foundations of the Law of Expropriation of Alien Property, 75 American Journal of International Law, 1981, p. 553, p. 560
45 Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, 2001, p. 55, Commentary to Article 12 at para. (4).
46 Mondev International Ltd v. United States of America, ICSID Case No. ARB(AF)/99/2, Award of 11 October 2002.
49 Eureko BV v. Republic of Poland, Ad Hoc Tribunal (UNCITRAL), Partial Award and Dissenting Opinion, IIC 98, 19 August 2005, para. 258. This statement was made in the context of the tribunal’s observation that reliance by the tribunal in SGS v. Pakistan on the maxim in dubio mitius so as effectively to presume that sovereign rights override the rights of a foreign investor could be seen as a reversion to a doctrine that has been displaced by contemporary customary international law, particularly as that law has been reshaped by the conclusion of more than 2,000 essentially concordant bilateral investment treaties.