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Part III Procedural Issues, Ch.30 A Doctrine of Precedent? »

Christoph Schreuer, Matthew Weiniger
From: The Oxford Handbook of International Investment Law
Edited By: Peter T Muchlinski, Federico Ortino, Christoph Schreuer
This chapter begins with a discussion of precedent in international law. It then discusses the practice of investment treaty tribunals, inconsistent decisions, interpretative statements by states, and institutionalized mechanisms.

Appendix 10 Accord entre le Gouvernement de la République Française et le Gouvernement de [ ] sur l'Encouragement et la Protection Réciproques des Investissements (‘France Model BIT’) »

From: International Investment Arbitration: Substantive Principles
Campbell McLachlan QC, Laurence Shore, Matthew Weiniger

Appendix 9 Agreement between the Government of the Democratic Socialist Republic of Sri Lanka and the Government of [ ] for the Promotion and Protection of Investments »

From: International Investment Arbitration: Substantive Principles
Campbell McLachlan QC, Laurence Shore, Matthew Weiniger

Appendix 4 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of [Country] for the Promotion and Protection of Investments »

From: International Investment Arbitration: Substantive Principles
Campbell McLachlan QC, Laurence Shore, Matthew Weiniger

Appendix 8 Agreement on Encouragement and Reciprocal Protection of Investments between [ ] and the Kingdom of the Netherlands »

From: International Investment Arbitration: Substantive Principles
Campbell McLachlan QC, Laurence Shore, Matthew Weiniger

Appendix 3 ASEAN Agreement for the Promotion and Protection of Investments (15 December 1987) »

From: International Investment Arbitration: Substantive Principles
Campbell McLachlan QC, Laurence Shore, Matthew Weiniger

Appendices, Appendix 3 ASEAN Comprehensive Investment Agreement 2009 »

From: International Investment Arbitration: Substantive Principles (2nd Edition)
Campbell McLachlan, Laurence Shore, Matthew Weiniger

Part I Overview, 2 The Basic Features of Investment Treaties »

From: International Investment Arbitration: Substantive Principles (2nd Edition)
Campbell McLachlan, Laurence Shore, Matthew Weiniger
Chapter 2 introduces the reader to the basic features of investment treaties, with particular emphasis on two types of treaties under which investment arbitrations have arisen: bilateral investment treaties (BITs) and multilateral investment treaties. It first discusses the structure of BITs, focusing on provisions in such areas as substantive rights, compensation for losses (war clause), free transfer of payments, dispute settlement, and subrogation. It then examines the common provisions of four major multilateral investment treaties, namely: NAFTA; the Energy Charter Treaty; the ASEAN Comprehensive Investment Agreement and the newly-concluded Trans-Pacific Partnership Agreement (not yet in force).

Part I Overview, 2 The Basic Features of Investment Treaties »

From: International Investment Arbitration: Substantive Principles
Campbell McLachlan QC, Laurence Shore, Matthew Weiniger
Chapter 2 looks at the key principles contained in BITs and MITs. In its discussion of BIT key provisions it has sections on Preambles, Definitions, Admission, War Clauses, Free Transfer of Payments, Subrogation, State to State Disputes and Duration. All other issues are dealt with elsewhere in the book. The section on MITs considers similar provisions contained in NAFTA, the ASEAN Agreement and the Energy Charter Treaty. Issues which are unique to these treaties are addressed. The chapter concludes with a summary of issues relating to Foreign Investment Laws.

Part III Substantive Rights, 9 Compensation »

From: International Investment Arbitration: Substantive Principles (2nd Edition)
Campbell McLachlan, Laurence Shore, Matthew Weiniger
Chapter 9 examines the obligation upon the State committing the international wrong to make reparation through restitution or monetary compensation. It first considers the international law standards of compensation for expropriation before proceeding to discuss the range of options adopted in practice by arbitral tribunals. It then looks at practical application of the main methods of valuation used to determine the appropriate level of compensation, particularly the ‘discounted cash flow’ method, along with the issue of causation in international law. The chapter concludes with an analysis of five topics that are assuming greater practical importance in the approach of arbitral tribunals to remedies: the award of moral damages in exceptional circumstances; the claimant’s duties of mitigation of loss; the potential for the availability of non-pecuniary remedies; interest; and costs.

Part III Substantive Rights, 9 Compensation »

From: International Investment Arbitration: Substantive Principles
Campbell McLachlan QC, Laurence Shore, Matthew Weiniger
The final chapter is concerned with the approach to be taken to the determination of the appropriate level of compensation for breach of treaty rights. The law on this topic is an amalgam of the provisions of general international law with the specific provisions of the treaties themselves. Compensation is a potential form of reparation for any internationally wrongful act of a State. This part of the work is therefore closely linked to the international law of State responsibility. But the specific provisions of investment treaties, as lex specialis, have resolved a number of contentious issues as to the appropriate approach to be taken to the calculation of the amount of compensation. Nevertheless, the detailed principles to be applied to determining the amount of compensation, both for expropriation claims, as for other claims to breach of treaty, has continued to raise difficulties for arbitral tribunals. This chapter discusses the range of options adopted in actual practice by tribunals dealing in addition with interest and costs.

Contents—Detailed »

From: International Investment Arbitration: Substantive Principles (2nd Edition)
Campbell McLachlan, Laurence Shore, Matthew Weiniger

Contents—Summary »

From: International Investment Arbitration: Substantive Principles (2nd Edition)
Campbell McLachlan, Laurence Shore, Matthew Weiniger

Appendix 11 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID) »

From: International Investment Arbitration: Substantive Principles
Campbell McLachlan QC, Laurence Shore, Matthew Weiniger

Part I Overview, 3 Dispute Resolution Provisions »

From: International Investment Arbitration: Substantive Principles (2nd Edition)
Campbell McLachlan, Laurence Shore, Matthew Weiniger
Chapter 3 examines those aspects of dispute resolution provisions commonly found in bilateral investment treaties (BITs), with particular emphasis on four fundamental issues in the settlement of investment disputes through arbitration: (1) the clauses in investment treaties that provide for investor–State arbitration, focusing on the issue of the existence and limits of the consent to arbitrate; (2) transparency and the extent to which non-parties may be heard in the process; (3) the legal nature of the rights contained in investment treaties within the choice of law framework applicable to investment arbitration, in which both international law and host State law have a role to play; and (4) the overall approach to be taken to the interpretation of BITs under the general rule of interpretation provided in the Vienna Convention. The chapter concludes by discussing the role precedent plays in the development of investment treaty law.

Part I Overview, 3 Dispute Resolution Provisions »

From: International Investment Arbitration: Substantive Principles
Campbell McLachlan QC, Laurence Shore, Matthew Weiniger
Chapter 3 Dispute Settlement looks in more detail at four fundamental issues in the settlement of investment disputes through arbitration. These are: (1) Dispute Settlement Provisions. In the first place, Chapter 3 analyses the clauses in investment treaties which provide for investor–State arbitration. Although dispute resolution provisions are commonly found towards the conclusion of an investment treaty, it is these provisions, and the array of options which they provide to the investor of the book which provide the key to the rest of the process. They are therefore dealt with at the outset of the book. (2) Transparency. A feature of investment arbitration, which distinguishes it from commercial arbitration, and which reflects its mixed public/private character, is the extent to which the process, and the resulting award, is exposed to public scrutiny. An important element of this is the extent to which non–parties may be heard in the process, whether as amici curiae or otherwise. (3) Legal Nature of the Rights at Issue. The rights contained in investment treaties have been described as having a mixed or hybrid character, entered into on the plane of public international law between States, but vindicated directly through claims brought by private investors. This section explores the relative emphasis to be put on the respective roles of the contracting State and the claimant investor in determining the basis of the rights asserted. (4) Interpretation of BITs. The final section examines the overall approach to be taken to the interpretation of investment treaties, and discusses in particular whether a doctrine of precedent is emerging in investment arbitration.

Appendices, Appendix 2 Energy Charter Treaty, Part III: Investment Promotion and Protection »

From: International Investment Arbitration: Substantive Principles (2nd Edition)
Campbell McLachlan, Laurence Shore, Matthew Weiniger

Appendix 2 Energy Charter Treaty (Part III: Investment Promotion and Protection, Articles 10–17) »

From: International Investment Arbitration: Substantive Principles
Campbell McLachlan QC, Laurence Shore, Matthew Weiniger

Part III Substantive Rights, 8 Expropriation »

From: International Investment Arbitration: Substantive Principles (2nd Edition)
Campbell McLachlan, Laurence Shore, Matthew Weiniger
Chapter 8 deals with the protection from the expropriation of an investor’s property. It places this important protection against the background of its historical development before considering the particular formulations now commonly found in the key investment treaties. It then examines, case by case, the circumstances in which arbitral tribunals have found State conduct to be expropriatory, analysing the degree of State interference required to constitute expropriation as well as the kinds of governmental measures that may constitute expropriation; the nature of the claimant’s rights that are capable of being expropriated; and the importance of the distinction between direct and indirect expropriation.

Part III Substantive Rights, 8 Expropriation »

From: International Investment Arbitration: Substantive Principles
Campbell McLachlan QC, Laurence Shore, Matthew Weiniger
By contrast with the rights discussed in Chapter 7, the protection of property rights in investments from expropriation has long been the subject of close consideration by arbitral tribunals. However, the factual matrix in which the modern expropriation claim arises may well be very different to the context of outright nationalization of foreign property, which characterised many of the earlier causes célèbres. The chapter starts by looking at the classic definition and its modern elasticity. It considers both direct and indirect expropriation. It concludes by looking at the case–by–case approach of tribunals, in particular the criteria they consider and the governmental measures that may constitute expropriation.