Reform of Investor-State Dispute Settlement: Lessons from International Uniform Law
This article argues that significant improvements in the quality and consistency of decision-making in investor-state arbitration can be achieved without taking such drastic (and possibly unachievable) steps as creating a global appellate body or standing international investment court, or enacting a new treaty that codifies the substantive obligations of international investment law for all signatory states. The article draws on the experience of the international uniform law movement to suggest realistic and achievable steps that could nevertheless be effective.Although investor-state arbitration and uniform law are not entirely analogous, they do share some important similarities. In particular, they share the same basic goal (to create a fair, even, and predictable playing field for private relationships that cross borders) and the same basic challenge (how to deliver that degree of consistency without the factors that normally stabilize adjudication in national court systems, such as court hierarchies and a shared domestic legal culture).This article is organized around three “questions asked” with respect to investor-state dispute settlement. For each, it describes the “answers” yielded by the experience of the international uniform law movement, and proposes how the insights gained might be put into practice in investor-state arbitration. The first two questions are doctrinal in character: what degree of consistency between investment tribunals should be the goal? and what should be the role of precedent in a decentralized, non-hierarchical interpretive community? On both of these issues, the international uniform law literature provides doctrines that are normatively attractive and that can feasibly be adapted to the international investment law context. The third question is more practical: which non-binding aids to interpretation are most effective in promoting quality and consistency? A wide range of interpretive aids exist for various international uniform law instruments, providing an opportunity to identify best practices. In general, the international uniform law experience shows that substantial improvements in consistency and quality of decision-making can be realized even without the establishment of centralized administrative or appellate bodies or the enactment of new treaty regimes.
Most-Favoured-Nation Treatment in International Investment Law: Ascertaining the Limits Through Interpretative Principles
Recent developments in investor-state arbitration portrays most-favoured-nation (MFN) standard as a limitless provision to attract third party treaties. There is no jurisprudence constante as to its nature and scope under international investment law. Textual differences of the clause in investment treaties are often used as a justification for its varied interpretation by ad hoc arbitral tribunals. On that account, this article identifies specific interpretative techniques — like res inter alias acta, ejusdem generis, questioning presumptive approaches, recognising relative autonomy of treaty components, and balancing conceptual evolution over textual interpretation — to ascertain the limits of MFN standard under international investment law and to regulate the interpretative discretion of investment tribunals.
The Vienna Convention on the Law of Treaties: The Consequences of Participation and Nonparticipation
Mr Sinclair's book, which analyses the more important elements of the Vienna Treaties Convention, reflects his high degree of scholarship in this important area of international law and the experience he gained not only as a member of the British delegation to the conference which drew up the convention but especially as a member of the conference's drafting committee. Two aspects of the convention are singled out for special attention, the relationship of the convention to customary international law, and the concept of jus cogens. Although the convention is not likely to enter into force for some time, it already exercises considerable influence on the treaty-making practices of states and is commonly referred to in the preparation of bilateral and multilateral treaties. Because the convention is already serving, to a limited degree, as a code of treaty law, the treaty practitioner will find the discussion distinguishing between those provisions of the convention which are a codification of existing treaty law and those which constitute attempts at progressive development of that law of considerable practical value. Mr Sinclair approaches the concept of jus cogens in international law with the same prudence which has marked the attitude of the British judiciary to the analogous domestic law concept of public policy. He concludes that 'there is a place for the concept of jus cogens in international law. Its growth and development will parallel the growth and development of an international legal order expressive of the consensus of the international community as a whole. Such an international legal order is, at present, inchoate, unformed and only just discernible/ The question whether economic coercion constitutes a use of force