In this introductory chapter to Part II, we will examine the key specifics of the EU legal order and investment protection mechanisms under EU law, with a view to expose systemic similarities and differences between the EU legal order and international investment law (IIL). First, we will explain the basic features of the EU legal order. Second, we will expose the modus operandi of the EU judicial system and the Court of Justice of the European Union (CJEU) as its integral part. Finally, we will explain the scope of investment issues in the EU legal order to understand the reasons which render IIL more attractive to intra-EU investors than EU law. This chapter thus provides the context to the discussion on intra-EU dispute settlement in the next chapter. The divergent approaches to intra-EU ISDS between investment tribunals and the CJEU epitomise the fundamental differences of the two legal orders discussed in this chapter. The tensions between these two legal orders can only be understood in light of the constitutionalisation of the EU legal order, the process in which the CJEU plays the key role.

This chapter deals with the creation of private rights in areas of uncertain jurisdiction. What kinds of rights are they and what are their features? Do states possess the same competence to create private rights in delimited and undelimited spaces? To address the above, the chapter first discusses the creation of private rights by states in general. Then, it examines whether the lack of clearly established boundaries prohibits or otherwise hinders states from granting private rights in land and maritime spaces which are also claimed by other states. It is concluded that the absence of fixed international boundaries does not affect the powers of states to create private rights on land or at sea, even in areas claimed by two or more parties. Rather, the states’ competence to create private rights in areas of uncertain jurisdiction rests on the bona fide claim of a legal title. Although this claim may be rebutted or reduced by the establishment of an international boundary, the said private rights are legitimate and active.

This chapter examines the role of private rights in the process of land and maritime delimitation. To determine this, the study performs a comparative analysis in pairs. Firstly, it compares the effect of private rights in land and maritime delimitation treaties. Then it compares the effect of private rights in land and maritime delimitation rulings. A synthesis of the findings reached shows that the effect of private rights is extensive and significant in land delimitation, but restricted or even absent in maritime delimitation. Hence, the risk of reallocation is greater for offshore private rights in the first place. This asymmetry has important implications for private actors operating in contested waters and for international law in general.

It is well appreciated that legal systems are imbued with patterns. Given their constructed nature, use of precedent, application of principles and multitude of law-making instruments, it is unsurprising that links, repetition, practices and relationships are identified within and across legal systems; and international law is no different in that respect. As a field, it has developed at various points in line with a range of patterns as it responds to particular propositions, assertions, circumstances, events or challenges. And as it has fractured and subdivided into specialist areas, that process has been replicated, each sector of international law producing its own distinct reiterations. Clearly not the sole pattern – but certainly an especially potent one – is the centrality of property and commerce.1 When the history of international law is examined, a repeated process of right-construction can be observed and we can see that mechanisms and artificial constructs have repeatedly been developed to place property and commerce at the centre of international law. Concepts, treaties, arbitrations, even the use of language as a mechanism were all new devices, each responding to contemporary needs with a new construct: ostensibly a break or change of direction but always actually preserving core, central principles, supporting a private-rights focus in rules for international application, creating overall a continuity of approach.