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A NEW STRATOSPHERE? INVESTMENT TREATY ARBITRATION AS ‘INTERNATIONALIZED PUBLIC LAW’

Published online by Cambridge University Press:  30 April 2015

Caroline Foster
Caroline Foster*
Affiliation:
The University of Auckland, New Zealand, [email protected].
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Abstract

The idea of investment treaty arbitration as public law is in tension with the concept of international law as a law between representative public agencies. This concept of international law is valuable for its capacity to progress a broad range of public policy aims in an integrated and coordinated manner, including aims extending beyond the economic sphere such as international social, environmental, cultural and related aims. The probable effect on this concept of international law of a radical ‘internationalized public law’ approach to investment treaty arbitration requires further thought, especially with regard to the potential implications of recognizing investor rights under international law.

Keywords

comparative public lawcompensationinternational public lawinvestment treaty arbitrationinvestor rightspublic lawremediesreparationState responsibility
Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 64 , Issue 2 , April 2015 , pp. 461 - 485
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

1 Waelde, TW ‘A Requiem for the ‘‘New International Economic Order’’: The Rise and Fall of Paradigms in International Economic Law’ in Hafner, G et al. (eds), Liber Amicorum Professor Ignaz Seidl-Hohenveldern in Honor of his 80th Birthday (Kluwer Law International 1998) 771, 776Google Scholar.

2 A network of over 3,000 treaties protects and promotes foreign investment, as observed by Douglas, Zachary, ‘The Enforcement of Environmental Norms in Investment Treaty Arbitration’ in Dupuy, P-M and Viñuales, JE (eds), Harnessing Investment to Promote Environmental Protection: Incentives and Safeguards (CUP 2013) 415Google Scholar. Compare this with ten years previously, when Douglas referred to the figure of approximately 2000 treaties. Douglas, Z, ‘The Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 BYBIL 150, 159Google Scholar. See also Newcombe, A and Paradell, L, Law and Practice of Investment Treaties: Standards of Treatment (Kluwer Law International 2009) 57Google Scholar.

3 Douglas, ‘The Hybrid Foundations’ (n 2); Hofmann, R and Tams, CJ, ‘International Investment Law: Situating an Exotic Special Regime with the Framework of General International Law’ in Hofmann, R and Tams, CJ (eds), International Investment Law and General International Law: From Clinical Isolation to Systematic Integration? (Nomos 2011) 9Google Scholar.

4 Roberts, A, ‘Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System’ (2013) 107 AJIL 45Google Scholar.

5 Van Harten, G, Investment Treaty Arbitration and Public Law (OUP 2007)Google Scholar; Montt, S, State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative Law in the BIT Generation (Hart Publishing 2009)Google Scholar; Kulick, A, Global Public Interest in International Investment Law (CUP 2012) 97Google Scholar; Schill, SW, ‘Crafting the International Economic Order: The Public Function of Investment Treaty Arbitration and its Significance for the Role of the Arbitrator’ (2010) 23 LIJL 401Google Scholar; Schill, SW, ‘International Investment Law and Comparative Public Law: An Introduction’ in Schill, SW (ed), International Investment Law and Comparative Public Law (OUP 2010)Google Scholar; Schill, SW, ‘Enhancing International Investment Law's Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach’ (2011) 52(1) VaJIL 57Google Scholar.

6 Van Harten (n 5) 4, observing that ‘the system's crucial importance is that – unlike any other form of international arbitration – it is a method of public law adjudication, meaning that it is used to resolve regulatory disputes between individuals and the State as opposed to reciprocal disputes between private parties or between States.’ Emphasis original.

7 See for instance Van Harten (n 5); Schill, ‘Introduction’ (n 5) 10–11ff.

8 As observed by Anne Van Aaken, ‘Delegation and Interpretational Methods in International Investment Law’, remarks in panel on ‘Paradigmatic Changes in the Settlement of International Disputes’, 108th Annual Meeting of the American Society of International Law and 76th Biennial Conference of the International Law Association, 7–12 April, 2014; Sir Berman, Franklin, ‘Evolution or Revolution’ in Brown, C and Miles, K, Evolution in Investment Treaty Law and Arbitration (CUP 2011) 658, 668Google Scholar.

9 For instance, Douglas begins his 2003 article with the observation that ‘the principal beneficiary of the investment treaty regime is the investor’. Douglas, ‘The Hybrid Foundations’ (n 2) 152. cf Roberts, identifying investment promotion rather than investor protection as the raison d’être of the investment treaty system. Roberts, A, ‘State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority’ (2014) 55(1) HarvIntlLJ 1, 20–4Google Scholar.

10 Van Aaken (n 8).

11 Describing how counsel and arbitrators may lack experience in both public and public international law, their expertise lying in the field of commercial dispute resolution, Reed, L et al. ‘Mapping the Future of Investment Treaty Arbitration as a System of Law’ (2009) 103(1) Proceedings of the Annual Meeting ASIL 323, 326Google Scholar. See also Schill, SW, ‘W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law’ (2011) 22(3) EJIL 875, 883, 889Google Scholar.

12 Scholarly work on the interplay between investment treaty law and law in these fields includes Vadi, VS, Public Health in International Investment Law and Arbitration (Routledge 2013)CrossRefGoogle Scholar; Vadi, VS, Cultural Heritage in International Investment Law and Arbitration (CUP 2014)Google Scholar; Lenzerini, F, ‘Property Protection and Protection of Cultural Heritage’ in Schill, SW (ed), International Investment Law and Comparative Public Law (OUP 2010) 541Google Scholar. See also Viñuales, JE, Foreign Investment and the Environment in International Law (CUP 2012)Google Scholar; Dupuy, P-M, Francioni, F and Petersmann, E-U (eds), Human Rights in International Investment Law and Arbitration (OUP 2009)Google Scholar; Dupuy, P-M and Viñuales, JE (eds), Harnessing Investment to Promote Environmental Protection: Incentives and Safeguards (CUP 2013)Google Scholar. Consider also Foster, CE, ‘Adjudication, Arbitration and the Turn to Public Law ‘‘Standards of Review’’: Putting the Precautionary Principle in the Crucible’ (2012) 3(3) JIDS 525Google Scholar.

13 Foster (n 12). On the necessary surrender of regulatory autonomy in international law today see Cogan, JK ‘The Regulatory Turn in International Law’ (2011) 52(2) HarvIntlLJ 322, 331Google Scholar, 366, 372.

14 Wälde, TW, ‘The Specific Nature of Investment Arbitration’ in Kahn, PE and Wälde, TW (eds), Les Aspects Nouveaux du Droit des Investissements Internationaux (Martinus Nijhoff 2007) 43Google Scholar.

15 ibid 56.

16 ibid, 53–4, 60, 101, 119 citing at 61 Gaillard, Emmanuel, Jurisprudence du CIRDI (Pedone 2004) at 7, 768Google Scholar.

17 ibid 86.

18 ibid 49.

19 ibid 56.

20 Schill, ‘Enhancing International Investment Law's Legitimacy’ (n 5) 57. ‘After all’, adds Schill, ‘in this perspective, international investment law and investor State arbitration is nothing more than an internationalised discipline of public law’. ibid 102.

21 The term ‘internationalized public law’ is Schill's. Schill, ‘Enhancing International Investment Law's Legitimacy’ (n 5) 102. See also Schill, ‘W(h)ither Fragmentation?’ (n 11) 897–902. Consider the European Research Council Project ‘Transnational Private-Public Arbitration as Global Regulatory Governance: Charting and Codifying the Lex Mercatoria Publica’, directed by Schill, <http://www.mpil.de/en/pub/organization/lex_mp.cfm>.

22 Schill, ‘Introduction’ (n 5) 12.

23 Schill, ‘Enhancing International Investment Law's Legitimacy’ (n 5) 59, 100; Schill, ‘Introduction’ (n 5) 35. The same characteristics also underpin the distinction between investment treaty arbitration and commercial arbitration. ibid 75–8. See, earlier, Van Harten, Investment Treaty Arbitration and Public Law (n 5).

24 Schill, listed publications.

25 Schill, ‘Enhancing International Investment Law's Legitimacy’ (n 5) 57.

26 Schill, ‘Introduction’ (n 5) 25.

27 We may note the remarks of the Tribunal in Toto Construzioni Generali S.P.A. and Republic of Lebanon, ICSID Case No ARB/07/12, Award of June 7, 2012 that ‘[t]he fair and equitable treatment standard of international law does not depend on a perception of the frustrated investor, but should use public international law and comparative domestic public law as a benchmark’ para 166. In Total S.A. v Argentine Republic the Tribunal began by observing that it is generally relevant to consider what will constitute ‘fair and unfair conduct by domestic public authorities in respect to private investors and firms in domestic law’. Total S.A. v Argentine Republic ICSID Case No ARB/04/1, Decision on Liability of 27 December 2010, para 111, cited in Toto, para 166. The Tribunal then referred to ‘a standard of reasonableness and proportionality’ in determining compliance with the requirement for fair and equitable treatment. Paras 123, 309(h). One earlier 1995 case is also interesting, precisely because it seems the arbitrators turned to domestic administrative law to determine the case because they did not view their task as being to apply the investment treaty as a public international law instrument. As discussed by Jarrod Hepburn, ‘Saar Papier v Poland: Comparative Public Law and the Second-Ever Investment Treaty Award’ <www.ejiltalk.org> 3 February 2015. For cases where tribunals have employed concepts of proportionality see (n 67) and accompanying text.

28 Montt (n 5) 13–15; as noted by Schill, ‘W(h)ither Fragmentation?’ (n 11) 899.

29 Montt (n 5) 84; as noted by Schill, ‘W(h)ither Fragmentation?’ (n 11) 900. See also Kulick, Global Public Interest (n 5) 91–3. Schneiderman has manifested grave concern, with reference to investment law, regarding the constitutional effect of transnational economic regimes. D Schneiderman, ‘Investment Rules and the New Constitutionalism’ (2000) 25 L&SocInquiry 757. D Schneiderman, ‘Constitutionalising Economic Globalisation: Investment Rules and Democracy's Promise’ (CUP 2008).

30 Schill, SW, ‘Deference in Investment Treaty Arbitration: Re-conceptualising the Standard of Review’ (2012) 3(3) JIDS 577, 600–2Google Scholar.

31 ibid 602–3.

32 ibid 604.

33 Schill, SW, The Multilateralization of International Investment Law (CUP 2009), 372Google Scholar. On investment treaty arbitration as ‘a mechanism of global governance’ see Schill, ‘W(h)ither Fragmentation?’ (n 11) 894, 896. Schill, ‘Introduction’ (n 5) 19–23; Schill, ‘Crafting the International Economic Order’ (n 5) 413–18. Schill, SW, ‘System-Building in Investment Treaty Arbitration and Lawmaking’ (2011) 12(5) German Law Journal 1083, 1086Google Scholar.

34 Schill, ‘Introduction’ (n 5) 24.

35 Schill, ‘Enhancing International Investment Law's Legitimacy’ (n 5) 70.

36 Schill, ‘System-Building’ (n 33) observing that tribunals’ lawmaking ‘is a consequence of the position that was envisaged for them by States’, 1093. See also Schill, ‘W(h)ither Fragmentation?’ (n 11) 900, highlighting points made by Montt (n 5) 109. On the role of States’ consent, see Van Harten, G and Loughlin, M, ‘Investment Treaty Arbitration as a Species of Global Administrative Law’ (2006) 17 EJIL 142–5Google Scholar.

37 Van Harten and Loughlin (n 36) 150.

38 ibid 143.

39 ibid, ch 7, 152–84. See also Van Harten, G, ‘Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law’ in Schill, SW (ed), International Investment Law and Comparative Public Law (OUP 2010) 627Google Scholar.

40 Schill, ‘Introduction’ (n 5) 26–7; Schill, ‘Enhancing International Investment Law's Legitimacy’ (n 5) 90–9, 101–2.

41 Art 38(1)(c) Statute of the ICJ; Article 38(3) Statute of the Permanent Court of International Justice 1922, PCIJ Publications, Ser D (No 1) 7; Cheng, B, General Principles of Law As Applied by International Courts and Tribunals (Stevens & Sons 1953)Google Scholar; Pellet, A, ‘Article 38’ in Zimmermann, A et al. (eds), The Statute of the International Court of Justice: A Commentary (2nd edn, OUP 2012) 833Google Scholar; Crawford, J, Brownlie's Principles of Public International Law (8th edn, OUP 2012) 34–7Google Scholar.

42 Jennings, R and Watts, A, Oppenheim's International Law (9th edn, Longmans 1992)Google Scholar, vol I, 36, title 12; cf the alternative conceptions of general principles of law in terms of principles of justice among members of the Committee of Jurists preparing the Statute of the International Court of Justice. Crawford, Brownlie's Principles (n 41) 34. Pellet (n 41) 833 and discussion at 835.

43 Although there may be an overlap between the category of general principles referred to in art 38(1)(c) and general principles of international law in the sense of rules of customary international law, as well as with logical propositions that may underlie judicial reasoning. Crawford (n 41) 37.

44 Brown, C, A Common Law of International Adjudication (OUP 2007) 53–5, 89–90Google Scholar.

45 Crawford (n 41) 36.

46 Pellet (n 41) 833.

47 Hirsch, M, ‘Sources of International Investment Law’ in Bjorklund, AK and Reinisch, A (eds), International Investment Law and Soft Law (Edward Elgar 2012) 9, 24Google Scholar, citing for instance the application of the principle of res judicata in Waste Management v Mexico II, Decision on Jurisdiction of 26 June 2002, ICSID Case No ARB(AF)/00/3, para 39 and interestingly the principle of unjust enrichment in Saluka Investments BV (The Netherlands) v Czech Republic, Partial Award of 17 March 2006, UNCITRAL, para 449.

48 Hirsch, ibid 24; Fauchauld, OK, ‘The Legal Reasoning of ICSID Tribunals: An Empirical Analysis’ (2008) 19 EJIL 301, 312Google Scholar.

49 Sornarajah, M, International Law on Foreign Investment (2nd edn, CUP 2004) 93–5Google Scholar. See also Anghie, A, Imperialism, Sovereignty, and the Making of International Law (CUP 2005) 237Google Scholar.

50 Lauterpacht, H, Private Law Sources and Analogies of International Law (Longmans, Green & Co 1927) 67–71Google Scholar.

51 Kulick (n 5) 164. Pellet (n 41) 782.

52 Vadi, V, ‘Book Review: International Investment Law and Comparative Public Law’ 15(3) JIEL 917Google Scholar.

53 Kingsbury, B, Krisch, N, and Stewart, RB ‘The Emergence of Global Administrative Law’ (2005) 68(3) LCP 15, 29Google Scholar.

54 Pellet (n 41) 766. See also Jennings and Watts (n 42) vol I, 37–8, title 12.

55 M Paparinskis, ‘Investment Treaty Interpretation and Customary Investment Law: Preliminary Remarks’ in Brown and Miles (n 8) 75–77, 77.

56 Martins Paparinskis, Remarks on ‘Legitimate Expectations: Reflections on Sources of International Law’, 13th Annual WTO Conference, British Institute of International and Comparative Law, 15–16 May 2013. See also M Paparinskis, ‘Reply to Howley and Howse’, expressing scepticism about the role that general principles and analogies from domestic public law may be alleged to play in investment law at <http://www.ejiltalk.org/reply-to-howley-and-house/#more-9705> (EJIL: Talk! 24 October 2013).

57 Schill, ‘Introduction’ (n 5) 26–9, 37; Schill, ‘Enhancing International Investment Law's Legitimacy’ (n 5) 101.

58 Gazzini, T, ‘General Principles in the Field of Foreign Investment’ (2009) 10 Journal of World Investment and Trade, 103Google Scholar.

59 Schill, ‘Introduction’ (n 5) 26–8; Schill, ‘Enhancing International Investment Law's Legitimacy’ (n 5) 90–1, 101. Consider the diverse contributions to Schill, SW (ed), International Investment Law and Comparative Public Law (OUP 2010)Google Scholar. McLachlan highlights the use of general principles of law to inform the content of ‘open-textured’ treaty norms. McLachlan, C, ‘Investment Treaties and General International Law’ (2008) 57 ICLQ 361, 396, 401Google Scholar.

60 Schill, ‘Introduction’ (n 5) 28; Schill, ‘Enhancing International Investment Law's Legitimacy’ (n 5) 90–1.

61 McLachlan et al. argue that we should recognize a standard of justice, by which both nationals and foreigners should be treated, as a principle ranking among ‘general principles of international law’ as referred to in art 38(1)(c) of the ICJ Statute. McLachlan, C, Shore, L and Weiniger, M, International Investment Arbitration: Substantive Principles (OUP 2007) 204–6Google Scholar, paras 7.12–7.15.

62 Schill, SW, ‘General Principles of Law and International Investment Law’ in Gazzini, T and De Brabandere, E, International Investment Law: The Sources of Rights and Obligations (Martinus Nijhoff 2012) 133, 178Google Scholar. On proportionality reasoning see inter alia Kingsbury, B and Schill, SW, ‘Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest: The Concept of Proportionality’ in Schill, SW (ed), International Investment Law and Comparative Public Law (OUP 2010) 75Google Scholar.

63 Schill, ‘Enhancing International Investment Law's Legitimacy’ (n 5) 97; Schill (n 62).

64 See for further interest Henckels, C, ‘Indirect Expropriation and the Right to Regulate: Revisiting Proportionality Analysis and the Standard of Review in Investor-State Arbitration’ (2012) 15(1) JIEL 223–55CrossRefGoogle Scholar; Henckels, C, ‘Balancing Investment Protection and the Public Interest: The Role of the Standard of Review and the Importance of Deference in Investor-State Arbitration’ (2013) 4(1) JIDS 197Google Scholar. Henckels considers that, regardless of whether proportionality qualifies as a general principle of law, proportionality-type analyses serve a role in investment treaty arbitration, but seeks to curb or calibrate their scope and effects.

65 Kingsbury and Schill (n 62) 102–3; Kulick (n 5) 171–3.

66 See further Foster (n 12) 526, 533–4; Foster, CE, ‘Diminished Ambitions? Public International Legal Authority in the Transnational Economic Era’ (2014) 17(2) JIEL 355Google Scholar. See also Klabbers, J, ‘Setting the Scene’ in Klabbers, J, Peters, A and Ulfstein, G, The Constitutionalization of International Law (OUP 2009)CrossRefGoogle Scholar 1, 35–6.

67 Occidental Petroleum Corporation, Occidental Exploration and Production Company v Ecuador, ICSID Case No ARB/06/11, Award of 5 October 2012, para 417. The concept of proportionality was the pivot of the Tribunal's findings that Ecuador had failed to afford fair and equitable treatment to Occidental's investment (paras 384–452), conduct also tantamount to expropriation (paras 453–455), leading to an award against Ecuador of US$1.7bn. The Tribunal cited at length the evidence that Ecuador's law and Constitution specifically required proportionate treatment, paras 396–401, 422 and 427, additionally citing past awards of arbitral tribunals where reference was made to proportionality. This evidence included the Tribunal's reliance on the statement of expert witness Judge Schwebel on proportionality as one of various considerations in the context of fair and equitable treatment in MTD Equity SDN. BHD. and other v The Republic of Chile, ICSID Case No ARB/01/7 (25 May 2004), para 109, cited in Occidental at para 405; and the controversial decision in Tecmed S.A. v The United Mexican States, ICSID Case No ARB (AF)/00/2 (29 May 2003). The Occidental Tribunal did not frame proportionality as a proposed general principle of law, but made the less specific statement that it had no doubt the principle was applicable as a matter of general international law. ibid, para 427. See also Renco's pleadings on fair and equitable treatment in The Renco Group, Inc. v The Republic of Peru, ICSID Case No UNCT/13/1.

68 See eg Klatt, M and Meister, M, The Constitutional Structure of Proportionality (OUP 2012) 1–2Google Scholar.

69 ibid 3–4.

70 Van Harten, G, Sovereign Choices and Sovereign Constraints: Judicial Restraint in Investment Treaty Arbitration (OUP 2013) 68Google Scholar.

71 LG&E Energy Corp and others v Argentine Republic, ICSID Case No ARB/02/1, Decision on Liability of 3 October 2006, para 195, dealing with LG&E's claim for expropriation. The Tribunal's decision in Azurix Corp. v The Argentine Republic could also be read as supporting a test of obvious disproportionality, as guidance for determining when regulatory actions amounted to expropriation and gave rise to compensation. Azurix Corp. v The Argentine Republic, ICSID Case No ARB/01/12, Award of 14 July 2006, paras 311–312.

72 See, writing on an indicative disproportionality test in the trade field, Foster, CE, ‘Public Opinion and the Interpretation of the World Trade Organisation's Agreement on Sanitary and Phytosanitary Measures’ (2008) 11(2) JIEL 427, 450Google Scholar. Note also the Appellate Body's application of art XX(g) of GATT 1994 in United States—Import Prohibition of Certain Shrimp and Shrimp Products, where it was considered relevant that the United States’ means for securing the conservation of resources were not disproportionately wide in scope and reach in relation to their policy objective. Report of the Appellate Body, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, para 140.

73 Schill, ‘Enhancing International Investment Law's Legitimacy’ (n 5) 92; and see Kulick (n 5) 920.

74 Friedmann, WG, The Changing Structure of International Law (Columbia University Press 1964) 191Google Scholar.

75 ibid 196–7. McLachlan promotes reliance on the concept of equity as an important dimension to the fair and equitable treatment standard, suggesting that this concept could perform the function performed by proportionality in human rights law. McLachlan (n 59) 382–3, 400.

76 Friedmann (n 74) 196.

77 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), open for signature 18 March 1965, entry into force 14 October 1966, 4 ILM 524 (1965); Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958) (the New York Convention), open for signature 10 June 1958, entry into force 7 June 1959, 330 UNTS 38 (1959). Van Harten and Loughlin (n 36) 127–37. Van Harten (n 5) 5.

78 Schill, ‘Crafting the International Economic Order’ (n 5) 410–12.

79 Van Harten and Loughlin (n 36) 146.

80 Schill, ‘Introduction’ (n 5) 4–7.

81 Schill, ‘Crafting the International Economic Order’ (n 5) 405.

82 Schill, SW, The Multilateralization of International Investment Law (CUP 2009) 8Google Scholar.

83 ‘[I]nternational investment law can thus be understood as serving a constituent function for the emerging global economy’. ibid 373. Schill (n 82) 11–19.

84 Schill, SW, ‘Public or Private Dispute Settlement? The Culture Clash in Investment Treaty Arbitration and Its Impact on the Role of the Arbitrator’ in Weiler, T, Baetens, F and Wälde, T (eds), New Directions in International Economic Law: In Memoriam Thomas Wälde (Martinus Nijhoff 2011) 23–43Google Scholar, 25.

85 Schill, ‘Crafting the International Economic Order’ (n 5) 424.

86 ibid 419.

87 cf Schill (n 84) 34.

88 For discussion of international investment law, economic ideology and hegemony, Schill (n 82) 6–8, 7.

89 Schill, SW, ‘Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law’ in Schill, SW (ed), International Investment Law and Comparative Public Law (OUP 2010) 151Google Scholar; see in particular at 177–181.

90 ibid. See critical comment on the broader subject of rule of law arguments by Van Harten (n 39).

91 Schill, ‘W(h)ither Fragmentation?’ (n 11) 880, fn 23; Roberts (n 9) 37.

92 J Pauwelyn, discussing the Award in Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award of 27 June 1990. Pauwelyn, J, ‘Rational Design or Accidental History? The Emergence of International Investment Law’ in Douglas, Z, Pauwelyn, J and Viñuales, J (eds), The Foundations of International Investment Law: Bringing Theory into Practice (OUP 2014) 11, 31Google Scholar.

93 Paparinskis, M, ‘Analogies and Other Regimes of International Law’ in Douglas, Z, Pauwelyn, J and Viñuales, J (eds), The Foundations of International Investment Law: Bringing Theory into Practice (OUP 2014) 95Google Scholar, although stating this less strongly.

94 Parlett, K, The Individual in the International Legal System: Continuity and Change in International Law (CUP 2011) 106–8Google Scholar, citing inter alia the English Court of Appeal decision in Republic of Ecuador v Occidental Exploration and Production Company [2006] 1 QB 432 (CS (Civ)); Douglas, ‘The Enforcement of Environmental Norms’ (n 2) 419.

95 Wälde, ‘The Specific Nature of Investment Arbitration’ (n 14) 92. This view has also been adopted by tribunals. See Corn Products International, Inc. v United Mexican States, ICSID Case No ARB (AF)/04/1 (NAFTA) Decision on Responsibility, 15 January 2008, paras 165–176; Cargill, Incorporated v United Mexican States, ICSID Case No ARB(AF)/05/2 (NAFTA), Award, 18 September 2009, paras 423–428. Interestingly the language of paras 82–83 of the Separate Opinion of Arthur W Rovine in the earlier case of Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v The United Mexican States, ICSID Case No ARB (AF)/04/5 (NAFTA), Award and Separate Opinion of 26 September 2007, refers largely to investors’ rights to redress rather than to substantive rights in terms of benefitting from guaranteed standards of treatment.

96 Douglas, ‘The Hybrid Foundations’ (n 2) 182, 282; Douglas, Z, The International Law of Investment Claims (CUP 2009) 32Google Scholar.

97 M Paparinskis, ‘Investment Treaty Arbitration and the (New) Law on State Responsibility’ (2013) 24(2) EJIL 617, 626. Roberts for instance writes ‘I contend that, given that both home States and investors have an interest in vindicating investment treaty obligations, and that both have been granted a procedural mechanism for doing so, we should presume that both have been granted substantive rights under investment treaties absent clear wording to the contrary.’ Roberts, ‘State-to-State Investment Treaty Arbitration’ (n 9) 39.

98 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (n 77) art 27. Alvarez, JE, ‘Are Corporations ‘Subjects’ of International Law?’ (2011) 9 Santa Clara Journal of International Law 13–14Google Scholar.

99 Braun, TR, ‘Globalisation-Driven Innovation: The Investor As a Partial Subject in Public International Law: An Inquiry into the Nature and Limits of Investor Rights’ (2014) 15 The Journal of World Investment and Trade 73, 76Google Scholar.

100 ibid 106–7.

101 See text accompanying notes 112–123.

102 ‘By taking up the case of one of its subjects and by resorting to diplomatic protection or international judicial proceedings on his behalf, a State is in reality asserting its own rights …’. Mavrommatis Palestine Concessions Case (1924) PCIJ Ser A No 2, 12. See Douglas, ‘The Hybrid Foundations’ (n 2) 164–6.

103 The term ‘derivative’ is employed by Douglas, ‘The Hybrid Foundations’ (n 2) 162–3; Douglas, The International Law of Investment Claims (n 96) 11–32, discussing also how the derivative approach has been promoted within investment arbitration under the North American Free Trade Agreement. Braun (n 99) 87. See the overview of the state of play in McLachlan et al. (n 61) 61–5.

104 See (n 110).

105 Douglas, ‘The Hybrid Foundations’ (n 2) 164–5. Consider, for instance, Barcelona Traction, Light and Power Co. (Belgium v Spain) [1970] ICJ Rep 3.

106 eg Douglas, ‘The Hybrid Foundations’ (n 2) 153–4; Van Harten, Investment Treaty Arbitration and Public Law (n 5) 136.

107 LaGrand (Germany v United States of America), Judgment of 27 June 2001 (Merits) [2001] ICJ Reports 466. The relevant provision, art 36(1)(b) of the Vienna Convention on Consular Relations, provides that: ‘[I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.’ Vienna Convention on Consular Relations 1963, 596 UNTS 261, open for signature 24 April 1963, entry into force 19 March 1967. (Emphasis added.)

108 Crawford, J, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (CUP 2002) 210Google Scholar, para 4 of the Commentary to art 3. (Emphasis added.)

109 Crawford, J, ‘The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’ (2002) 96(4) AJIL 874, 887Google Scholar. Crawford has also observed that the character of investor rights will depend on the treaty in question. Crawford, J, ‘International Law as an Open System’ in Crawford, J, International Law As an Open System: Selected Essays (Cameron May 2002) 17, 36Google Scholar.

110 Parlett (n 94) 108. Parlett instances the Energy Charter Treaty, art 13(2), 17 December 1994, entry into force 16 April 1998, 2080 UNTS 100. This provision sets out a right to prompt review in domestic law in case of expropriation. Energy Charter Treaty, 17 December 1994, entry into force 16 April 1998, 2080 UNTS 100. Douglas has referred to the Austria model BIT provision on expropriation, also stating that an investor ‘shall have the right to prompt review of its case, including the valuation of its investment and the payment of compensation’. Art 5(3) Austria model BIT, vol VII International Investment Agreements: A Compendium (UNCTAD 2002) 262. Douglas, ‘The Hybrid Foundations’ (n 2) 183; Douglas, The International Law of Investment Claims (n 96) 35.

111 Paparinskis, ‘Investment Treaty Arbitration and the (New) Law on State Responsibility’ (n 97).

112 Part Two of the Articles, dealing with the content of State responsibility, is written without prejudice to any such rights. Art 33(2) of the ILC Articles, above n 158, states that ‘This Part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State’. See also Commentary to art 28, para (3), Crawford, above n 108, 193, and Commentary to Chapter I of Part II, General Principles, para 2, Crawford, above n 108, 192. Crawford observes that ‘Responsibility is no longer an exclusively bilateral, inter-State matter.’ Crawford, ‘International Law as an Open System’ (n 109) 29.

113 Douglas, ‘The Hybrid Foundations’ (n 2); Douglas (n 97). Crawford observes that ‘A new legal relation, directly between the investor and the responsible State, is thereby formed, if it did not already exist.’ Crawford, ‘A Retrospect’ (n 109) 888. (Emphasis added).

114 Douglas ‘The Enforcement of Environmental Norms’ (n 2) 419–20; Douglas, The International Law of Investment Claims (n 96) 35. See, previously, Douglas, ‘The Hybrid Foundations’ (n 2) 184.

115 Douglas, The International Law of Investment Claims (n 96) 35. See, previously, Douglas, ‘The Hybrid Foundations’ (n 2) 184.

116 Douglas, The International Law of Investment Claims (n 96) 35. See, previously, Douglas, ‘The Hybrid Foundations’ (n 2) 184.

117 Douglas, Z, ‘Other Specific Regimes of Responsibility: Investment Treaty Arbitration and ICSID’ in Crawford, J, Pellet, A, Olleson, S and Parlett, K (eds), The Law of International Responsibility (OUP 2010) 815, 819Google Scholar.

118 Douglas, ‘The Hybrid Foundations’ (n 117) 170 and 190–4. Douglas, ‘Investment Treaty Arbitration and ICSID’ (n 117) 829.

119 See arts 34–37 of the International Law Commission's Articles on State Responsibility (n 108); and see Douglas, ‘Investment Treaty Arbitration and ICSID’ (n 117) 820, 829–32. For a starting point, Braun (n 99) 115. Van Aaken advocates greater use in investment law of the preventive and restitutive remedies characterizing municipal legal orders. A Van Aaken, ‘Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View’ in Schill, International Investment Law and Comparative Public Law (n 5) 721. Schill (n 82) 721. See also Marboe, I, ‘State Responsibility and Comparative State Liability for Administrative and Legislative Harm to Economic Interests’ in Schill, SW (ed), International Investment Law and Comparative Public Law (OUP 2010) 377Google Scholar and note Kriebaum, U, ‘Restitution in International Investment Law’ in Hofmann, R and Tams, CJ (eds), International Investment Law and General International Law: From Clinical Isolation to Systematic Integration? (Nomos 2011) 201Google Scholar.

120 Douglas, ‘The Hybrid Foundations’ (n 2) 184–93, 282 and see at 187, referring to work carried out by Riphagen, Third Special Rapporteur on the topic of State Responsibility, International Law Commission, including the ‘Third Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles) (1983) 2 UNYBILC 22, UN Doc A/CN.4/354/Add. 1 & 2, see especially at para 35. See also (n 117) 819. Indeed, Douglas observes this may be the case even where investors are primary substantive right-holders. Douglas, ‘The Hybrid Foundations’ (n 2) 182–4.

121 Douglas, ‘The Hybrid Foundations’ (n 2) 169–70, canvassing instances where States’ submissions to arbitral tribunals have been rejected. Douglas, The International Law of Investment Claims (n 96) 17–19.

122 On satisfaction as a form of reparation, see arts 34 and 37 of the International Law Commission's Articles on State Responsibility (n 109).

123 As discussed engagingly by Paparinskis (n 97).

124 Kingsbury, B, ‘International Law as Inter-Public Law’ in Richardson, HR and Williams, MS (eds), Nomos XLIX: Moral Universalism and Pluralism (New York University Press 2009) 167Google Scholar. Describing international law as based on the dialectic interplay between the ideals of a relational and an institutional law, see RJ Dupuy, ‘Communauté Internationale et Disparités de Développement’ (1979-IV) 165 Recueil des Cours 9. Viewing investment treaty law within international law as a blended relational and institutional law, see Šturma, P, ‘Relations between International Investment Law and Domestic Public Law: No Love at First Sight’ in Hofmann, R and Tams, CJ, (eds), International Investment Law and its Others (Nomos 2012) 203, 205Google Scholar, 210–11.

125 Kingsbury, B and Donaldson, M, ‘From Bilateralism to Publicness in International Law’ in Fastenrath, U et al. (eds), Essays in Honour of Bruno Simma (OUP 2011) 86Google Scholar. Kuo, M-S, ‘The Concept of ‘‘Law’’ in Global Administrative Law: A Reply to Benedict Kingsbury’ (2009) 20(4) EJIL 977Google Scholar.

126 Constituencies ought not be viewed, though, as restricted to national constituencies, and constituencies may overlap with one another. Kingsbury and Donaldson (n 125); Kingsbury (n 124) 85.

127 Parlett (n 94) 352, 357.

128 ibid 350, 357 and Conclusion.

129 Consider A-M Slaughter, ‘The New World Order’ (1997) 76(5) Foreign Affairs 183; Slaughter, A-M, A New World Order (Princeton University Press 2004)Google Scholar.

130 Wilske, S and Raible, M, ‘The Arbitrator as Guardian of International Public Policy? Should Arbitrators Go beyond Solving Legal Disputes?’ in Rogers, CA and Alford, RP (eds), The Future of Investment Arbitration (OUP 2009) 249Google Scholar.

131 Miles, K, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (CUP 2013) 332–5Google Scholar. Also Foster, ‘Diminished Ambitions’ (n 66) 357. Consider also von Bogdandy, A and Venzke, I, In Whose Name? A Public Law Theory of International Adjudication (OUP 2014)Google Scholar noting that functionalist approaches may lead to weaknesses in legitimacy and observing that ‘the specific focus of an international court can easily lead to a strong orientation toward the ‘regime interest’ at the expense of other principles’, 97.

132 Consider the Advisory Opinion of the Seabed Disputes Chamber on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area, Case No 17, Seabed Disputes Chamber of the International Tribunal of the Law of the Sea, Advisory Opinion of 1 February 2011, 50 ILM 458.

133 China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, Panel Report WT/DS363/R, Appellate Body Report WT/DS363/AB/R, adopted 19 January 2010; China—Measures Related to the Exportation of Rare Earths, Tungsten and Molybdenum, Panel Reports WT/DS431/R; WT/DS432/R; WT/DS433/R, Appellate Body Reports WT/DS431/AB/R, circulated 7 August 2014.

134 See ‘The Compact: A Contractual Mechanism for Response in the Event of Damage to Biological Diversity Caused by the Release of a Living Modified Organism’, 17 May 2010. See also First Amended Text, 19 November 2012, Second Amended Text, 18 September 2012. Available at <www.biodiversitycompact.org>.

135 Foster, ‘Diminished Ambitions’ (n 66).

136 McCorquodale, R ‘An Inclusive International Legal System (2004) 17 LIJL 477Google Scholar; McCorquodale, R, ‘The Individual and the International Legal System’ in Evans, M (ed), International Law (3rd edn, OUP 2010) 284Google Scholar.

137 Petersmann, E-U, ‘The Future of International Economic Law: A Research Agenda’ in Joerges, C and Petersmann, E-U, Constitutionalism, Multilevel Trade Governance and International Economic Law (OUP 2011) 546Google Scholar.

138 Higgins, R, “‘Conceptual Thinking about the Individual in International Law”’, (1978) 4(1) British Journal of International Studies 1, 2Google Scholar.

139 See Ku, JG, ‘The Limits of Corporate Rights under International Law’ (2012) 12 Chicago Journal of International Law 729Google Scholar, 729, 754 and Dupuy, P-M, ‘Unification Rather Than Fragmentation of International Law? The Case of International Human Rights Law and International Investment Law’ in Dupuy, P-M, Francioni, F and Petersmann, E-U (eds), Human Rights in International Investment Law and Arbitration (OUP 2009) 45, 61Google Scholar; See Seidl-Hohenveldern's discussion on the widening of the notion of subjects of international law. Seidl-Hohenveldern, I, International Economic Law (3rd rev edn, Kluwer Law International 1999) Ch II, 9–17Google Scholar.

140 Alvarez (n 98).

141 Dumberry, P, ‘Corporate Investors’ International Legal Personality and their Accountability for Human Rights Violations under IIAs’ in De Mestral, A and Lévesque, C (eds), Improving International Investment Agreements (Routledge 2013) 179Google Scholar. Even though international corporate actors attract already a growing responsibility for their actions. Alvarez (n 98) 31, discussing the work of United Nations Special Representative on Business and Human Rights, John Ruggie. See UN Guiding Principles on Business and Human Rights, Advance Edited Version A/HRC/17/31 (21 March 2011). Consider also the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises, 2011 Edition, first drawn up in 1976. OECD Guidelines for Multinational Enterprises, OECD Publishing; United Nations ‘UN Global Compact: The Ten Principles’ (2013) <www.unglobalcompact.org>.

142 See Ku (n 139). The Tribunal in Plama Consortium referred to investors’ step-by-step ‘transition from objects to subjects of international law’ as part of the process by which the ‘legal architecture of a liberal global economy’ is gradually constructed, as noted by Braun (n 99) 107, citing Plama Consortium Limited v Republic of Bulgaria, ICSID Case No ARB/03/24, Decision on Jurisdiction of 8 February 2005, para 141.

143 Douglas, ‘The Enforcement of Environmental Norms’ (n 2) 242.

144 For debate over the implications of corporate personality in international law see further eg Braun, TR, ‘Globalization: The Driving Force in International Investment Law’ in Waibel, M, Kaushal, A, Kyo-Hwa Chung, L and Balchin, C (eds), The Backlash against Investment Arbitration: Perceptions and Reality (Wolters Kluwer Law and Business 2010) 491Google Scholar.

145 To situate this point within a broad, forward-looking perspective see Bethlehem, D, ‘The End of Geography: The Changing Nature of the International System and the Challenge to International Law’ (2014) 25(1) EJIL 9Google Scholar, including Bethlehem's proposed conception of international legal relations taking the form of a three-tiered lex congregato incorporating industry-driven standards of conduct at 24.

146 Van Harten and Loughlin (n 36) 146 observe that this is presently a point of difference between domestic administrative judicial review and investment treaty arbitration in which proceedings are taken against the State as a whole.

147 G Van Harten, ‘Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law’ (n 39) 633; Schill, ‘Deference’ (n 30) 591.

148 Kingsbury, Krisch and Stewart (n 53).

149 Van Harten and Loughlin (n 36).

150 Kingsbury, ‘International Law as Inter-Public Law’ (n 124) 197; Kingsbury, Krisch and Stewart (n 53) 50. Kingsbury and Donaldson (n 125).

151 Kingsbury declines to take a commitment to national democracy as a starting point in developing a concept of international law, in part because globalization threatens this democracy. Kingsbury, ‘International Law as Inter-Public Law’ (n 124) 193–6.

152 Waibel et al. (n 144).

153 Paulsson, J, ‘Arbitration Without Privity’ (1995) 10(2) ICSID Review – Foreign Investment Law Journal 232Google Scholar.