1 Louis Henkin, How Nations Behave: Law and Foreign Policy (2nd edn, Council on Foreign Relations 1979) 47 (noting that ‘almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’).
2 Bin Cheng, General Principles of Law as applied by International Courts and Tribunals (Cambridge University Press 1994, reprinted) 103 (hereafter Cheng, General Principles of Law) (noting the relevance of good faith in, inter alia, treaty formation, treaty performance, and the exercise of rights); James Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press 2012) 377 (hereafter Crawford, Brownlie’s Principles of Public International Law) (noting the application of good faith in treaty relations); Anthony D’Amato, ‘Good Faith’ in Max Planck Encyclopedia of Public International Law (Oxford University Press 1992) 599–601 (stating that ‘[t]he principle of good faith requires parties to a transaction to deal honestly and fairly with each other, to represent their motives and purposes truthfully, and to refrain from taking unfair advantage that might result from a literal and unintended interpretation of the agreement between them’); Markus Kotzur, ‘Good Faith (Bona Fides)’ in Max Planck Encyclopedia of Public International Law (Oxford University Press 2009) (stating that ‘[b]ona fides takes a most prominent place among the general principles as specified in Art. 38(1)(c) Statute of the International Court of Justice’); Vaughn Lowe, ‘Book Review: Good Faith in International Law by J.F. O’Connor’ (1992) 41(2) International and Comparative Law Quarterly 484, 484 (suggesting that ‘good faith is an awful subject for a narrowly focused monograph, if only because it is so hard to find anyone who doesn’t think that it is a jolly good thing’); Andrew Mitchell, ‘Good Faith in WTO Dispute Settlement’ (2006) 7 Melbourne Journal of International Law 339, 341 (tracing its origins in modern international law to the drafting of the Statute of the Permanent Court of International Justice); JF O’Connor, Good Faith in International Law (Dartmouth Publishing Company 1991) 2 (hereafter O’Connor, Good Faith in International Law) (describing good faith as ‘the foundation of all law’); M Virally, ‘Review Essay: Good Faith in Public International Law’ (1983) 77 American Journal of International Law 130, 130 (hereafter Virally, ‘Review Essay: Good Faith in Public International Law’) (‘It is commonly understood by international lawyers that a requirement of good faith in various contexts is a well-established principle of international law and even one of the most fundamental ones’); Elisabeth Zoller, La Bonne Foi en Droit International Public (A Pédone 1977) (hereafter Zoller, La Bonne Foi en Droit International Public).
3 See generally Bernardo Cremades, ‘Good Faith in International Arbitration’ (2012) 27(4) American University International Law Review 761, 761 (hereafter Cremades, ‘Good Faith in International Arbitration’) (contending that ‘[i]t is difficult to find any international arbitration award not based on, or that does not at least mention, good faith’); AFM Maniruzzaman, ‘The Concept of Good Faith in International Investment Law—The Arbitrator’s Dilemma’ (2012) 89 Amicus Curiae: Journal of the Society for Advanced Legal Studies 16, 18 (hereafter Maniruzzaman, ‘The Concept of Good Faith in International Investment Law—The Arbitrator’s Dilemma’); Martha Belete Hailu, ‘Good Faith (Lack of) in Investment Arbitration and the Conduct of the Ethiopian Government in the Salini Case: Exercise of Legitimate Right or “Exhibit A” for Guerrilla Tactics?’, 6 UNCTAD Virtual Library <https://vi.unctad.org/resources-mainmenu-64/digital-library?task=dl_doc&doc_name=826_good_faith_> accessed 30 January 2018 (hereafter Hailu, ‘Good Faith (Lack of) in Investment Arbitration and the Conduct of the Ethiopian Government in the Salini Case’); Eric De Brabandere, ‘ “Good Faith”, “Abuse of Process” and the Initiation of Investment Treaty Claims’ (2012) 3(3) Journal of International Dispute Settlement 609, 609 (hereafter De Brabandere, ‘ “Good Faith”, “Abuse of Process” and the Initiation of Investment Treaty Claims’).
4 ICSID Convention (Convention on the Settlement of Investment Disputes between States and Nationals of Other States) (opened for signature 18 March 1965, entered into force 14 October 1966) (as amended and effective 10 April 2006) Art 42(1) (hereafter ICSID Convention); ADC Affiliate Ltd & ADC & ADMC Management Ltd v Republic of Hungary, ICSID ARB/03/16, Award (2 October 2006) para 290 (hereafter ADC v Hungary).
5 Martins Paparinskis, ‘Good Faith and Fair and Equitable Treatment in International Investment Law’ in Andrew Mitchell, M Sornarajah, and Tania Voon (eds), Good Faith and International Economic Law (Oxford University Press 2015) 144–45; Roland Kläger, ‘Fair and Equitable Treatment’ in International Investment Law (Cambridge University Press 2013) 130 (‘the principle of good faith has met with wide recognition in the discussion regarding the concept of fair and equitable treatment … In their analysis of a possible breach of fair and equitable treatment, arbitral tribunals frequently highlight good faith as a guiding principle in the relationship between the investor and the host state’); Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (2nd edn, Oxford University Press 2012) 291 (hereafter Dolzer and Schreuer, Principles of International Investment Law); Genin and Others v Estonia, ICSID Case No ARB/99/2, Award (25 June 2001) para 367 (stating that ‘Article II(3)(a) of the BIT requires the signatory governments to treat foreign investment in a “fair and equitable” way … Acts that would violate this minimum standard would include acts showing a willful neglect of duty, an insufficiency of action falling far below international standards, or even subjective bad faith’); Mondev International Ltd v United States of America, ICSID Case No ARB(AF)/99/2, Award (11 October 2002) para 116 (‘To the modern eye, what is unfair or inequitable need not equate with the outrageous or the egregious. In particular, a State may treat foreign investment unfairly and inequitably without necessarily acting in bad faith’); Tecnicas Medioambientales Tecmed SA v The United Mexican States, ICSID Case No ARB(AF)/00/2, Award (29 May 2003) para 153 (‘The Arbitral Tribunal finds that the commitment of fair and equitable treatment included in Article 4(1) of the Agreement is an expression and part of the bona fide principle recognized in international law, although bad faith from the State is not required for its violation’); Waste Management v United Mexican States, ICSID Case No ARB(AF)/00/3, Award (30 April 2004) para 138 (noting that ‘[a] basic obligation of the State under Article 1105(1) [of the NAFTA] is to act in good faith and form, and not deliberately to set out to destroy or frustrate the investment by improper means’); Bayindir Insaat Turizm Ticaret VE Sanayi AS v Islamic Republic of Pakistan, ICSID Case No ARB/03/29, Decision on Jurisdiction (14 November 2005) para 237 (referring to the interpretation of the fair and equitable treatment obligation as stated in Tecmed); Saluka Investments BV (the Netherlands) v The Czech Republic, UNCITRAL, Partial Award (17 March 2006) para 307 (‘A foreign investor protected by the Treaty may in any case properly expect that the Czech Republic implements its policies bona fide by conduct that is, as far as it affects the investors’ investment, reasonably justifiable by public policies and that such conduct does not manifestly violate the requirements of consistency, transparency, even-handedness and nondiscrimination. In particular, any differential treatment of a foreign investor must not be based on unreasonable distinctions and demands, and must be justified by showing that it bears a reasonable relationship to rational policies not motivated by a preference for other investments over the foreign-owned investment’); Sempra Energy International v Argentine Republic, ICSID Case No ARB/02/16, Award (28 September 2007) paras 291–92, 297 (contrasting the positions of the parties by noting that the claimant ‘explains that while this particular standard [of fair and equitable treatment] originates in the obligation of good faith under international law, it has gradually acquired a specific meaning in the light of decisions and treaties, and requires, inter alia, a treatment compatible with the expectations of foreign investors, the observance of arrangements on which the investor has relied in making the investment, and the maintenance of a stable legal and business framework’ while noting that the respondent considers that ‘fair and equitable treatment is a standard indistinguishable from the customary international minimum standard’. Ultimately, the tribunal maintains with respect to the fair and equitable treatment standard that ‘[t]he principle of good faith is thus relied on as the common guiding beacon that will orient the understanding and interpretation of obligations, just as happens under civil codes’); Frontier Petroleum Services Ltd v The Czech Republic, UNCITRAL, Final Award (12 November 2010) para 301 (‘It follows from these authorities that action by the host state that is not in good faith is at variance with the fair and equitable treatment promise. However, not every violation of the standard of fair and equitable treatment requires bad faith’).
6 Inceysa Vallisoletana, SL v Republic of El Salvador, ICSID Case No ARB/03/26, Award, English Translation of Award Rendered in Spanish (2 August 2006) paras 230–35; Phoenix Action, Ltd v Czech Republic, ICSID Case No ARB/06/5, Award (15 April 2009) para 106 (hereafter Phoenix v Czech Republic, Award) (‘States cannot be deemed to offer access to the ICSID dispute settlement mechanism to investments not made in good faith’).
7 Dolzer and Schreuer, Principles of International Investment Law (n 5) 291; Plama Consortium Limited v Republic of Bulgaria, ICSID Case No ARB/03/24, Award (27 August 2008) para 135 (‘the Arbitral Tribunal considers that this situation [deliberate concealment amounting to fraud] does not involve the “strawman” provision set out in the Bulgarian Privatization Law, the Tribunal is of the view that this behavior is contrary to other provisions of Bulgarian law and to international law and that it, therefore, precludes the application of the protections of the ECT’); Gustav F W Hamester v Republic of Ghana, ICSID Case No ARB/07/24, Award (18 June 2010) para 123 (hereafter Hamester v Republic of Ghana) (‘An investment will not be protected if it has been created in violation of national or international principles of good faith; by way of corruption, fraud, or deceitful conduct; or if its creation itself constitutes a misuse of the international investment protection under the ICSID Convention. It will also not be protected if it is made in violation of the host State’s law’).
8 Regarding strict textualism in the context of US constitutional decisions, see Antonin Scalia and Bryan A Garner, Reading Law: The Interpretation of Legal Texts (West 2012).
9 Stephan Schill, ‘International Investment Law and General Principles of Law’, in Jürgen Bering et al, ‘General Public International Law and International Investment Law: A Research Sketch on Selected Issues’ (March 2011) 105 Beiträge zum Transnationalen Wirtschaftsrecht <http://telc.jura.uni-halle.de/sites/default/files/BeitraegeTWR/Heft%20105.pdf> 13–14 (hereafter Schill, ‘International Investment Law and General Principles of Law’) (stating that general principles of law ‘played quite a significant role in determining the parties’ substantive obligations in the oil concession arbitrations in the pre-BIT era’, but also noting that ‘general principles of law arguably can also be used in order to elucidate standards of treatment, such as fair and equitable treatment, or the concept of indirect expropriation, or as a basis to develop solutions for procedural issues that investment tribunals face, for example developing and concretizing the appropriate standards of review’); Campbell McLachlan, ‘Investment Treaties and General International Law’ (2008) 58 International and Comparative Law Quarterly 361, 362.
10 Thomas W Wälde, ‘Interpreting Investment Treaties: Experiences and Examples’ in Christina Binder, Ursula Kriebaum, August Reinisch, and Stephan Wittich (eds), International Investment Law for the 21st Century (Oxford University Press 2009) 724.
11 Jürgen Bering, Tillmann Rudolf Braun, Ralph Alexander Lorz, Stephan Schill, Christian J Tams, and Christian Tietje, ‘General Public International Law and International Investment Law: A Research Sketch on Selected Issues’ (March 2011) 105 Beiträge zum Transnationalen Wirtschaftsrecht <http://telc.jura.uni-halle.de/sites/default/files/BeitraegeTWR/Heft%20105.pdf> accessed 30 January 2018 (hereafter Bering et al, ‘A Research Sketch’) 10.
12 Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (hereafter VCLT). Regarding the typical reliance on the VCLT, see, inter alia, Continental Casualty Company v The Argentine Republic, ICSID Case No ARB/03/9, Decision on the Claimant’s Preliminary Objection to Argentina’s Application for Annulment (23 October 2009) para 23 (applying Arts 31 and 32 of the Vienna Convention of the Law of Treaties to assist in interpretation of Art 49(2) of the ICSID Convention); Phoenix v Czech Republic, Award (n 6) paras 75–76; Mr Franck Charles Arif v The Republic of Moldova, ICSID Case No ARB/11/23, Award (8 April 2013) para 165; Cambodia Power Company v Kingdom of Cambodia/Electricité du Cambodge, ICSID Case No ARB/09/18, Decision on Jurisdiction (22 March 2011) para 222; Global Trading Resource Corp and Globex International, Inc v Ukraine, ICSID Case No ARB/09/11, Award (1 December 2010) para 47; Millicom International Operations BV and Sentel GSM SA v The Republic of Senegal, ICSID Case No ARB/08/20, Decision on Jurisdiction of the Arbitral Tribunal (16 July 2010) para 62. Similarly, tribunals have applied the ILC Articles on State Responsibility. In this regard, see, inter alia, Chevron Corporation and Texaco Petroleum Corporation v the Republic of Ecuador, PCA Case No 2009-23, Interim Award (1 December 2008) para 118 (hereafter Chevron v Ecuador, Interim Award); Mr Franck Charles Arif v The Republic of Moldova, noted, para 344; Ioannis Kardassopoulos and Ron Fuchs v The Republic of Georgia, ICSID Case Nos ARB/05/18 and ARB/07/15, Award (3 March 2010) para 280.
13 Cremades, ‘Good Faith in International Arbitration’ (n 3) 767.
15 Philip Morris Asia Limited v the Commonwealth of Australia, PCA Case No 2012-12, Award on Jurisdiction and Admissibility (17 December 2015) para 588 (hereafter Philip Morris v Australia, Award on Jurisdiction and Admissibility) (‘the Tribunal cannot but conclude that the initiation of this arbitration constitutes an abuse of rights, as the corporate restructuring by which the Claimant acquired the Australian subsidiaries occurred at a time when there was a reasonable prospect that the dispute would materialise and as it was carried out for the principal, if not sole, purpose of gaining Treaty protection’).
16 The first bilateral investment treaty (BIT) was signed between the Federal Republic of Germany and Pakistan in 1959. See Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments (25 November 1959).
17 Jeswald W Salacuse, The Law of Investment Treaties (Oxford University Press 2015) 84; see generally Christian Tietje and Emily Sipiorski, ‘The Evolution of Investment Protection Based on Public International Law Treaties: Lessons to be Learned’ in Andrea K Bjorklund and August Reinisch (eds), International Investment Law and Soft Law (Edward Elgar 2012) 194 (hereafter Tietje and Sipiorski, ‘The Evolution of Investment Protection’).
18 The early BITs maintained a system of state-to-state arbitration. An investor seeking redress would need to convince his home government of the merits of the dispute. By the 1990s, the mechanisms for investor-state arbitration—without the involvement of the investor home state at the moment of the dispute—were well entrenched in the typical BIT language. Recent BITs, however, have in some cases returned to state-to-state arbitration. See for example, recent Australian BITs and FTAs. The reasoning for such shift may point to a desire for investor-State arbitration to re-enter the more transparent and somewhat more regulated arena of public international law—thus removing investor-state arbitration from the margins of private and public international law and returning it to its classical origins. See Tietje and Sipiorski, ‘The Evolution of Investment Protection’ (n 17) 196.
19 See United Nations Conference on Trade and Development, Investment Policy Hub <http://investmentpolicyhub.unctad.org/IIA> accessed 30 January 2018; see also Jason Webb Yackee, ‘Do Bilateral Investment Treaties Promote Foreign Direct Investment? Some Hints from Alternative Evidence’ (2010) 51(2) Virginia Journal of International Law 397; Jason Webb Yackee, ‘Bilateral Investment Treaties, Credible Commitment, and the Rule of (International) Law: Do BITs Promote Foreign Direct Investment?’ (2008) 42 Law and Society Review 805, 827–28; Eric Neumayer and Laura Spess, ‘Do Bilateral Investment Treaties Increase Foreign Direct Investment to Development Countries?’ (2005) 33 World Development 1567.
20 See generally Gus Van Harten, Investment Treaty Arbitration and Public Law (Oxford University Press 2007) 9 (hereafter Van Harten, Investment Treaty Arbitration and Public Law).
22 Julian Lew, Loukas Mistelis, and Stefan Kröll, Comparative International Commercial Arbitration (Kluwer Law International 2003) 17.
23 Notably, the Netherlands has been the home State in ninety-six disputes and the responding state in none. Along a similar trend, the United States has been the respondent state in sixteen disputes, all currently pending, decided in the favour of the State, or settled. This compares to the 152 disputes in which the United States was the home state of the investor. See Investment Policy Hub, UNCTAD, available at <http://investmentpolicyhub.unctad.org/ISDS/FilterByCountry> accessed 30 January 2018.
24 See for example, Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG v Federal Republic of Germany, ICSID Case No ARB/09/6, Notice of Arbitration (31 May 2012) (dispute by a Swedish investor under the Energy Charter Treaty against the Federal Republic of Germany—a state typically seen as a home state of investors); Philip Morris v Australia, Award on Jurisdiction and Admissibility (n 15) (dispute brought against Australia under the Australia–Hong Kong China SAR BIT (1993)); Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v Kingdom of Belgium, ICSID Case No ARB/12/29, Award (30 April 2015).
25 See generally Stephan Schill, ‘From Sources to Discourse: Investment Treaty Jurisprudence as the New Custom?’, British Institute of International and Comparative Law, May 2011, <www.biicl.org/files/5630_stephan_schill.pdf> at 1 ff accessed 30 January 2018 (‘[O]ne can observe that the jurisprudence of investment treaty tribunals creates a significant amount of convergence rather than fragmentation and results in a system of international investment protection that can well be understood as a multilateral system, even though it is based largely on bilateral treaties and implemented by one-off arbitral tribunals’).
26 Stephan Schill, The Multilateralization of International Investment Law (Cambridge University Press 2014) 15 (hereafter Schill, The Multilateralization of International Investment Law) (‘Unlike genuinely bilateral treaties, that is, treaties that are bilateral in form and substance, BITs do not stand isolated in governing the relation between the two contracting states only; they rather develop multiple overlaps and structural interconnections that, it is argued, create a uniform and treaty-overarching regime for international investments. BITs in their entirety, it is argued, function analogously to a truly multilateral system as they establish rather uniform general principles that order the relations between foreign investors and host states in a relatively uniform manner independently of the sources and targets of specific transborder investment flows. Instead of being prone to almost infinite fragmentation, international investment law is thus developing into a uniform governing structure for foreign investment with only limited room for insular deviation by individual States’); Van Harten, Investment Treaty Arbitration and Public Law (n 20) 9.
27 Saipem v Bangladesh, ICSID Case No ARB/05/07, Decision on Jurisdiction and Provisional Measures (21 March 2007) para 67 (hereafter Saipem v Bangladesh, Decision on Jurisdiction and Provisional Measures) (noting that although ‘not bound by previous decisions … [the tribunal] is of the opinion that it must pay due consideration to earlier decisions of international tribunals’); but see also AES Corporation v the Republic of Argentina, ICSID Case No ARB/02/17, Decision on Jurisdiction (26 April 2005) para 30 (hereafter AES Corporation v the Republic of Argentina, Decision on Jurisdiction) (noting the sovereignty of each tribunal to resolve similar issues differently).
28 Charles N Brower, Charles H Brower II, and Jeremy K Sharpe, ‘The Coming Crisis in the Global Adjudication System’ (2003) 19 Arbitration International 415.
29 José E Alvarez, The Public International Law Regime Governing International Investment (The Hague Academy of International Law 2011). 406; Van Harten, Investment Treaty Arbitration and Public Law (n 20) 4
30 Pac Rim Cayman LLC v The Republic of El Salvador, ICSID Case No ARB/09/12, Decision on the Respondent’s Jurisdictional Objections (1 June 2012).
31 See for example, inter alia, North American Free Trade Agreement (NAFTA) (signed 17 December 1992, entered into force 1 January 1994) Art 1105(1) providing that ‘[e]ach Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security’ [emphasis added].
32 See generally Bering et al, ‘A Research Sketch’ (n 11).
33 Robert Kolb, Good Faith in International Law (electronic edition, Hart 2017) position 276 (hereafter Kolb, Good Faith in International Law).
34 Christoph Schreuer, The ICSID Convention: A Commentary (2nd edn, Cambridge University Press 2009) Art 42, para 97 (hereafter Schreuer, ICSID Commentary).
35 Antonio R Parra, ‘Applicable Law in Investor-State Arbitration’, paper presented at Second Annual Conference on International Arbitration and Mediation (Investor-State Arbitration Panel) held at Fordham University Law School on 18–19 June 2007 4, referencing ICSID, 2 Documents Concerning the Origin and Formulation of the Convention 570 (1968) (History of the Convention) 984–85 (hereafter Parra, ‘Applicable Law in Investor-State Arbitration’); Emmanuel Gaillard and Yas Banifatemi, ‘The Meaning of “and” in Article 42(1), Second Sentence of the Washington Convention: The Role of International Law in the ICSID Choice of Law Process’ (2003) 18 ICSID Review—Foreign International Law Journal 375, 383–88 (hereafter Gaillard and Banifatemi, ‘The Meaning of “and” in Article 42(1)’).
36 Parra, ‘Applicable Law in Investor-State Arbitration’ (n 35). This position of using international law for the purpose of gap-filling has also been considered extensively by WTO Panels and the Appellate Body. In the context of the WTO, see for example, WTO, Brazil—Measures Affecting Desiccated Coconut, Appellate Body Report and Panel Report, WT/DS22/AB/R (adopted 20 March 1997) (non-retroactivity of treaties); WTO, Japan—Taxes on Alcoholic Beverages, Appellate Body Report, WT/DS8/AB/R (adopted 1 November 1996). See generally Christina Voigt, ‘The Role of General Principles of International Law and Their Relationship to Treaty Law’ (2008) 31 Retfærd Årgang 2/121, 3, 6, 16 (hereafter Voigt, ‘The Role of General Principles of International Law and Their Relationship to Treaty Law’).
38 Klöckner Industrie-Anlagen GmbH, et al v United Republic of Cameroon, ARB/81/2, Decision of the Ad Hoc Committee (21 October 1983) (1986) 1 ICSID Review 89, para 69.
39 Autopista Concessionada de Venezuela CA v Bolivarian Republic of Venezuela, ICSID Case No ARB/00/5, Award (23 September 2003) para 336 (noting that ‘there is no reason in this case, especially considering that it is a contract and a not a treaty arbitration, to go beyond the corrective and supplemental functions of international law’).
40 See Gaillard and Banifatemi, ‘The Meaning of “and” in Article 42(1)’ (n 35) 377–78; Agreement between the Kingdom of Norway and … for the Promotion and Protection of Investments (Norwegian Model BIT) (2015), Art 5; Canadian Model Agreement for the Promotion and Protection of Investments (2004), Art 5; US Model BIT (2004), Art 5.
41 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford University Press 1994, reprinted 2010) 4 (hereafter Higgins, Problems and Process).
42 Robert Kolb, ‘Principles as Sources of International Law (with Special Reference to Good Faith)’ (2006) 53(1) Netherlands International Law Review 1, 27.
43 Higgins, Problems and Process (n 41) 4.
44 Voigt, ‘The Role of General Principles of International Law and Their Relationship to Treaty Law’ (n 36) 3.
45 Louis Henkin, International Law: Politics, Values and Functions: General Course in Public International Law (Nijhoff 1989) 61–62.
46 Robert Alexy, ‘Formal Principles: Some Replies to Critics’ (2014) 12(3) International Journal of Constitutional Law 511, 511 (hereafter Alexy, ‘Formal Principles: Some Replies to Critics’).
47 Steven Reinhold, ‘Good Faith in International Law’ (2013) 2 UCL Journal of Law and Jurisprudence 40, Bonn Research Paper on Public International Law No 2/2013, 3 (hereafter Reinhold, ‘Good Faith in International Law’).
48 Ronald Dworkin notes that a principle guides the decision-making process. Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978) 25 (hereafter Dworkin, Taking Rights Seriously); see also Reinhold, ‘Good Faith in International Law’ (n 47) 3.
49 Alexy, ‘Formal Principles: Some Replies to Critics’ (n 46) 512; see also Sir Gerald Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, Band 2 von Recueil des cours (The Hague Academy of International Law 1957) 7 (clarifying that ‘[a] rule answers the question “what”: a principle in effect answers the question “why” ’).
50 Robert Alexy, A Theory of Constitutional Rights (translated by Julian Rivers) (Oxford University Press 2002)
51 In this regard, see S Litvinoff, ‘Good Faith’ (1987) 87 Tulane Law Review 1645, 1649 (noting that in the context of marriage laws in the Louisiana Civil Code ‘[i]t is clear that these rules contemplate legal relations that are not obligations in the technical sense. It is also clear that, in the context of these rules, good faith does not appear as a duty to be observed, but rather as a circumstance, a condition shown by a party as a sort of personal quality, or perhaps a state of mind’).
52 Border and Transborder Armed Actions (Nicaragua v Honduras) (Jurisdiction and Admissibility)  ICJ Reports 69, para 94.
53 Nuclear Tests (Australia v France) (Judgment)  ICJ Reports 253, 268.
55 Voigt, ‘The Role of General Principles of International Law and Their Relationship to Treaty Law’ (n 36) 10.
57 Dworkin, Taking Rights Seriously (n 48) 22; see also HLA Hart, The Concept of Law (3rd edn, Oxford University Press 2012) 79 (hereafter Hart, The Concept of Law) (distinguishing between primary and secondary rules).
58 See generally Marion Panizzon, Good Faith in the Jurisprudence of the WTO: The Protection of Legitimate Expectations, Good Faith Interpretation and Fair Dispute Settlement (Hart Publishing 2006) 21–30 (hereafter Panizzon, Good Faith in the Jurisprudence of the WTO).
59 International Centre for Settlement of Investment Disputes, Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) (as amended and effective 10 April 2006), Rules of Procedure for Conciliation Proceedings.
60 See eg Société d’Investigation de Recherche et d’Exploitation Minière (SIREXM) c Burkina Faso (Affaire CIRDI ARB/97/1), Sentence of Tribunal (19 January 2000), para 5.13.
61 Abaclat v Argentine Republic, ICSID Case No ARB/07/5, Decision on Jurisdiction and Admissibility (4 August 2011) (Tribunal: Pierre Tercier [President], Albert Jan van den Berg, Georges Abi-Saab [dissenting]) para 647.
62 An important distinction should be made between procedural aspects of good faith—for example, interpreting treaty language—and substantive application of good faith. Substantive good faith impacts the obligations of the parties and their rights. Both aspects of good faith will be covered in this study. See also De Brabandere, ‘ “Good Faith”, “Abuse of Process” and the Initiation of Investment Treaty Claims’ (n 3) 609 (‘From a substantive perspective, “good faith” often is used to assess the conduct of the host State. From a procedural perspective, “good faith” likewise plays a significant role in relation to the conduct of the arbitral proceedings, linked to the obligation to arbitrate fairly’); Abaclat and Others v The Argentine Republic, Decision on Jurisdiction and Admissibility, (n 61) para 648 (holding that ‘TFA’s role in the proceedings [did] not amount to an abuse of rights which would justify dismissing Claimants’ claim for lack of admissibility’). The Abaclat tribunal generally distinguished procedural good faith from ‘material good faith’, noting that material good faith had been approached by tribunals in two ways: ‘(i) It can be seen as an issue of consent and thus of jurisdiction, where the consent of the Host State cannot be considered to extend to investments done under circumstances breaching the principle of good faith; (ii) It can be seen as an issue relating to the merits, where the key question is whether the circumstances in which the relevant investment was made are meant to be protected by the relevant BIT.’ In contrast, the tribunal noted that the two approaches to procedural good faith by tribunals were as follows: ‘(i) It can be seen as an issue of consent and thus of jurisdiction, where one party considers procedural aspects to be key components of the consent of the Host State; or (ii) It can be seen as an issue of admissibility, where the key question is whether the way in which the investor initiated the proceedings, although in accordance with the applicable provisions, aim to obtain a protection, which he is—under the principle of good faith—not entitled to claim.’
63 Kolb, Good Faith in International Law (n 33) position 223.
64 Shabtai Rosenne, Developments in the Law of Treaties 1945–1986 (Cambridge University Press 1989) 135–136: ‘Its normative content is to be distinguished from the role of good faith against the broader background of international relations … Without denying … that good faith, as a concept, is also one of public and of private morality, the view that it is only a moral or a metaphysical concept is one that cannot be entertained.’
65 Zoller, La Bonne Foi en Droit International Public (n 2).
66 Cheng, General Principles of Law (n 2) 118.
67 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)  ICJ Reports 226, para 99.
68 Bin Cheng notes with regard to treaty negotiation that ‘good faith requires that one party should be able to place confidence in the words of the other, as a reasonable man might be taken to have understood them in the circumstances’. Cheng, General Principles of Law (n 2) 107; Regarding the fulfilment of treaty obligations, see Van Bokkelen Case (1888), 2 International Arbitration 1807, 1849–50, quoting Kent’s Commentaries, as cited in Cheng, General Principles of Law 112: ‘Treaties of every kind, when made by the competent authority, are as obligatory upon nations as private contracts are binding upon individuals … and to be kept with the most scrupulous good faith.’
69 Virally, ‘Review Essay: Good Faith in Public International Law’ (n 2) 133.
70 See Hart, The Concept of Law (n 57) 126; Brian Bix, Law, Language and Legal Determinacy (Clarendon 1993) 7; Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford University Press 2005) 13.
71 See for example, Mathilde Cohen, ‘On the Linguistic of Multinational Courts: The French Capture’ (2016) Design I-CON 1, 16 (discussing the different styles of judicial opinions resulting from judges writing in different languages, specifically French).
72 Panizzon, Good Faith in the Jurisprudence of the WTO (n 58) 21–30.
74 Andrew D Mitchell, M Sornarajah, and Tania Voon (eds), Good Faith and International Economic Law (Oxford University Press 2015).
75 O’Connor, Good Faith in International Law (n 2) 2; Zoller, La Bonne Foi en Droit International Public (n 2); Kolb, Good Faith in International Law (n 33).
76 For example, Maniruzzaman, ‘The Concept of Good Faith in International Investment Law—The Arbitrator’s Dilemma’ (n 3) 18 (describing good faith as ‘a subject of perennial controversy since it was derived from the Roman legal equivalent “bonas fides” ’); De Brabandere, ‘ “Good Faith”, “Abuse of Process” and the Initiation of Investment Treaty Claims’ (n 3) 609; Hailu, ‘Good Faith (Lack of) in Investment Arbitration and the Conduct of the Ethiopian Government in the Salini Case (n 3); VV Veeder, ‘The 2001 Goff Lecture: The Lawyer’s Duty to Arbitrate in Good Faith’ (2002) 18(4) Arbitration International 444
77 WTO, United States—Standards for Reformulated and Conventional Gasoline, Appellate Body Report, WT/DS2/AB (20 May 1996) 16: ‘The general rule of interpretation [based on Article 31(1) of the Vienna Convention on the Law of Treaties] has attained the status of a rule of customary or general international law. As such, it forms part of the “customary rules of interpretation of public international law” which the Appellate Body has been directed, by Article 3(2) of the DSU, to apply in seeking to clarify the provisions of the General Agreement and the other “covered agreements” of the Marrakesh Agreement Establishing the World Trade Organization (the “WTO Agreement”). That direction reflects a measure of recognition that the General Agreement is not to be read in clinical isolation from public international law’; WTO, United States—Continued Existence and Application of Zeroing Methodology, Appellate Body Report, WT/DS350/AB/R (4 February 2009) 268: ‘The principles of interpretation that are set out in Articles 31 and 32 are to be followed in a holistic fashion. The interpretative exercise is engaged so as to yield an interpretation that is harmonious and coherent and fits comfortably in the treaty as a whole so as to render the treaty provision legally effective. A word or term may have more than one meaning or shade of meaning, but the identification of such meanings in isolation only commences the process of interpretation, it does not conclude it … a treaty interpreter is required to have recourse to context and object and purpose to elucidate the relevant meaning of the word or term. This logical progression provides a framework for proper interpretative analysis. At the same time, it should be kept in mind that treaty interpretation is an integrated operation, where interpretative rules or principles must be understood and applied as connected and mutually reinforcing components of a holistic exercise.’
78 Saipem v Bangladesh, Decision on Jurisdiction and Provisional Measures (n 27) para 67 (noting that although ‘not bound by previous decisions … [the tribunal] is of the opinion that it must pay due consideration to earlier decisions of international tribunals’); but see also AES Corporation v the Republic of Argentina, Decision on Jurisdiction (n 27) para 30 (noting the sovereignty of each tribunal to resolve similar issues differently).
79 Compare, for example, the impact of Professor Brigitte Stern in Phoenix v Czech Republic (n 6) and in Hamester v Republic of Ghana (n 7).