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Books on the topic 'Arbitration and investment treaties'

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Published: 4 June 2021
Last updated: 1 February 2022

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1

The law of investment treaties. Oxford: Oxford University Press, 2010.

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2

Ghouri, Ahmad Ali. Interaction and conflict of treaties in investment arbitration. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2015.

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3

Weeramantry, J. Romesh. Treaty interpretation in investment arbitration. Oxford, U.K: Oxford University Press, 2012.

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4

Sureda, Andrés Rigo. Investment treaty arbitration: Judging under uncertainty. Cambridge: Cambridge University Press, 2012.

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Investment treaty arbitration: Judging under uncertainty. Cambridge: Cambridge University Press, 2012.

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6

Investment treaty arbitration and public law. New York: Oxford University Press, 2007.

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7

Evolution in investment treaty law and arbitration. Cambridge: Cambridge University Press, 2011.

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8

Lluís, Paradell, ed. Law and practice of investment treaties: Standards of treatment. Austin [Tex.]: Wolters Kluwer Law & Business, 2009.

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9

Hamilton, Jonathan C. Latin American investment protections: Comparative perspectives on laws, treaties, and disputes for investors, states and counsel. Leiden: M. Nijhoff Publishers, 2012.

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10

E, Garcia-Bolivar Omar, and Hernando Otero, eds. Latin American investment protections: Comparative perspectives on laws, treaties, and disputes for investors, states and counsel. Leiden: M. Nijhoff Publishers, 2012.

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11

State liability in investment treaty arbitration: Global constitutional and administrative law in the BIT generation. Oxford: Hart, 2012.

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12

State liability in investment treaty arbitration: Global constitutional and administrative law in the BIT generation. Oxford: Hart Pub., 2009.

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13

International investment law: The sources of rights and obligations. Leiden: M. Nijhoff Publishers, 2012.

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14

US GOVERNMENT. Tax treaties. 2nd ed. Chicago, IL: CCH Inc., 2004.

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15

Smit, Hans. International arbitration treaties. Edited by Pěchota Vratislav. 2nd ed. Huntington, NY: Juris Pub., 2005.

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16

Smit, Hans. International arbitration treaties. [Yonkers, N.Y.]: Juris Pub., 1998.

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17

International economic law and national autonomy. New York: Cambridge University Press, 2010.

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18

Margrete, Stevens, and International Centre for Settlement of Investment Disputes., eds. Bilateral investment treaties. The Hague: M. Nijhoff, 1995.

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19

US GOVERNMENT. Compilation of treaties in force. Buffalo, N.Y: W.S. Hein, 2005.

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20

Stirnimann, Franz X., Jorge Alberto Huerta-Goldman, and Antoine Romanetti. WTO litigation, investment arbitration, and commercial arbitration. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2013.

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21

Nigel, Blackaby, Partasides Constantine, Redfern Alan, and Hunter Martin. 8 Arbitration under Investment Treaties. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198714248.003.0008.

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This chapter describes the arbitration process under international investment treaties, in particular under the Washington Convention of 1965. This Convention aimed primarily to create a new arbitral forum for the resolution of disputes between investors and states by means of the inclusion of arbitration clauses in state contracts. The travaux préparatoires of the Convention also made clear that the consent of the state to arbitration could be established through the provisions of an investment law, which prompted many states to develop a programme of bilateral treaties for the promotion and protection of investments, so-called bilateral investment treaties (BITs), which set out protections in favour of foreign investment. The dramatic growth of BITs since the mid-1980s has led to the adoption of similar provisions in the ‘investment chapters’, or collateral agreements, to multilateral economic cooperation treaties, such as the Association of Southeast Asian Nations (ASEAN) Comprehensive Investment Agreement.
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22

Law of Investment Treaties. Oxford University Press, 2015.

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23

Chaisse, Julien, and Luke Nottage, eds. International Investment Treaties and Arbitration Across Asia. Brill | Nijhoff, 2018. http://dx.doi.org/10.1163/9789004360105.

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24

Jeswald W, Salacuse. The Law of Investment Treaties. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198703976.001.0001.

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The rapid growth in investment treaties has led to a burgeoning number of international arbitration decisions that have applied and interpreted treaty provisions in disputes between investors and states concerning their respective rights. This flurry of treaties and arbitral decisions has seen the creation of a new branch of international law - the law of investment claims. In this revised second edition, Jeswald Salacuse examines the law of international investment treaties, specifically in relation to its origins, structure, content, and effect, as well as their impact on international investors and investments, and the governments that are parties to them. Specific topics include conditions for the entry of foreign investment and general standards of treatment of foreign investments; monetary transfers; operational conditions; protection against expropriation; dispossession and compensation for losses; dispute settlement, including negotiation, arbitration, and conciliation; and judicial proceedings.
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25

Interpretation of Investment Treaties. BRILL, 2014.

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26

Franck, Susan D. Arbitration Costs: Myths and Realities in Investment Treaty Arbitration. Oxford University Press, Incorporated, 2019.

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27

Norah, Gallagher, and Shan Wenhua. Chinese Investment Treaties. Oxford University Press, 2009. http://dx.doi.org/10.1093/law:iic/9780199230259.001.1.

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China's success in attracting foreign direct investment (FDI) in the last decade is undisputed and unprecedented. It is currently the second largest FDI recipient in the world, a success partially due to China's efforts to enter into bilateral investment treaties (BITs) and other international investment instruments. This book is a comprehensive commentary on Chinese BITs. Chinese investment treaties have typically provided international forums for settling investment disputes such as the International Centre for the Settlement of Investment Disputes (ICSID). Given the continuous growth of FDI in China, the emergence of state-investor disagreements in China, and the dramatic rise of investment treaty based arbitrations world wide in recent years, it is anticipated that there will be an increasing number of investment arbitrations involving the central and local governments of China. This book reviews and analyzes China's approach to foreign investment. It considers the current role of investment treaties in China's foreign economic policy, analyzes and interprets the key provisions of the BITs, and discusses the future agenda of China's investment program. It looks at how this investment regime interconnects with the domestic system and considers the implications for a foreign investor in China.
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28

The Coordination Of Multiple Proceedings In Investment Treaty Arbitration. Oxford University Press, 2013.

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29

United Nations Conference on Trade and Development, ed. Investor-state disputes arising from investment treaties: A review. New York: United Nations, 2005.

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30

Ucheora, Onwuamaegbu. Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 3 International Investment Dispute Settlement Mechanisms. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0003.

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This chapter begins by introducing the three institutions under whose auspices treaty-based investor-state arbitration proceedings have most commonly been conducted: the International Centre for Settlement of Investment Disputes (ICSID), the International Court of Arbitration of the International Chamber of Commerce (ICC), and the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). Following a general overview of the three institutions, it examines certain procedural issues that may be considered by parties in deciding among them, assuming that consent exists. The intention is to highlight certain provisions in their arbitration rules that best demonstrate the main differences between them. Finally, the chapter examines the Rules of the United Nations Commission on International Trade Law under which the majority of ad hoc investor-state arbitrations have so far been conducted and draws certain contrasts between them and the rules of the institutions earlier discussed.
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31

Jeswald W, Salacuse. 4 A History of International Investment Treaties. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198703976.003.0004.

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Since the inception of international investment, foreign investors have sought assurances from the sovereigns in whose territory they invest that their interests will be protected from negative actions by the sovereign and local individuals. This chapter begins with a historical background of the treatification process, which came about due to the perceived weaknesses of customary international law applying to foreign investments. It then discusses the objectives of the movement to negotiate investment treaties; the primary and secondary objectives of investment treaties; long-term goals of investment treaties; the treaty negotiation process; and the consequences of investment treaties, including the growth in investor–state arbitration cases to settle investment disputes.
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32

Florou, Aikaterini. Contractual Renegotiations and International Investment Arbitration: A Relational Contract Theory Interpretation of Investment Treaties. BRILL, 2020.

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33

Harten, Gus Van, and H. H. A. Van Harten. Investment Treaty Arbitration and Public Law. Oxford University Press, 2008.

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34

David W, Rivkin, and Friedman Mark W. 5 Financial Products as Investments under Bilateral Investment Treaties and Other Multilateral Instruments with Consents to Arbitration. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780199687862.003.0005.

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This chapter discusses the status of financial products as qualifying investments under bilateral and multilateral treaties that contain protections for foreign investment, including the signatory States' consent to submit investor-State disputes to international arbitration. It first describes how an investor and a State consent to proceed to arbitration under such a treaty. Second, it discusses how a qualifying investment is generally defined for purposes of investor-State treaty arbitration. Third, it addresses significant treaty and case law developments relating specifically to financial products — such as loan agreements, sovereign bonds, and derivatives — as qualifying investments. These developments shed light on the key questions of whether an investment exists; whether the investment was made in the territory of the host State; and whether the investment was made by the claimant investor. The chapter concludes with comments on the trend favouring inclusion of financial instruments within the definition of investment.
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35

Jonathan, Bonnitcha, Skovgaard Poulsen Lauge N, and Waibel Michael. 7 Politics of Investment Treaties in Developed Countries. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198719540.003.0007.

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This chapter focuses on the main factors driving investment treaty policy-making in developed countries. This can only be done based on an understanding of the changing socio-economic environment for foreign investments, and the chapter therefore provides significant historical context to the law and economics of the investment treaty regime. The chapter evaluates four potential explanations for why and how developed countries adopted investment treaties. These are: (i) the promotion of business interests; (ii) de-politicizing investment disputes; (iii) building customary international law; and (iv) using investment treaties for diplomatic and symbolic reasons. The chapter concludes by examining recent developments. These include the rise of investment treaty arbitration against developed country states themselves, which has prompted unprecedented political debate about investment treaties.
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36

Ranjan, Prabhash. India and Bilateral Investment Treaties. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780199493746.001.0001.

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Many countries have started contesting international investment treaties that allow foreign corporations to sue sovereign states for alleged treaty breaches at international arbitration forums. This contestation has taken the form of either countries terminating their investment treaties or walking out of the investor–state dispute settlement (ISDS) system. India has also jumped on the contestation bandwagon. As a consequence of being sued by more than 20 foreign investors, India terminated close to 60 investment treaties and adopted a new Model bilateral investment treaty (BIT) purportedly to balance investment protection with the host state’s right to regulate. This book critically studies India’s approach towards BITs by tracing the origin, evolution, and the current state of play. The book does so by locating it in India’s economic policy in general and policy towards foreign investment in particular. India’s approach towards BITs and India’s policy towards foreign investment were consistent with each other in the periods of economic nationalism (1947 to 1990) and economic liberalism (1991 to 2010). However, post 2010; India’s approach to BITs has become protectionist while India’s foreign investment policy continues to be liberal. In order to balance investment protection with the state’s right to regulate, India needs to evolve its BIT practice based on the twin framework of international rule of law and embedded liberalism.
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37

Brabandere, Eric De. Investment Treaty Arbitration as Public International Law. Cambridge University Press, 2016.

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38

Jeswald W, Salacuse. The Law of Investment Treaties. 3rd ed. Oxford University Press, 2021. http://dx.doi.org/10.1093/law/9780198850953.001.0001.

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Investment treaties grant special international protection to foreign investors, and give them a means to enforce those rights against States in which they have invested. This book examines systematically the law of international investment treaties. Although the precise provisions of investment treaties are not uniform, virtually all investment treaties address the same issues. This book examines those issues in detail, including the scope of application, conditions for the entry of foreign investment, and general standards of treatment of foreign investments. Investment treaty law has continued to evolve rapidly and dramatically since publication of the second edition of this work in 2015. The field has seen considerable growth in the number and scope of investment treaties, now estimated at 3300, and investor-state arbitrations cases, which reached over 1000 in 2020. Beyond growth, the field has also experienced significant changes and reforms. In 2018, eleven Pacific Basin Countries, despite the withdrawal of the United States, forged ahead to conclude the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTTP), a potentially far reaching regional trade and investment agreement. The next year, the three north American nations replaced the North American Free Trade Agreement (NAFTA) with the United States-Mexico-Canada Agreement (USMCA). And in 2020, European Union member states terminated over 100 intra-EU BITs, leaving intra-EU investors to rely on EU law and legal processes alone for protection from unfavourable government acts. This edition incorporates a consideration of all of these and other reforms into its analysis of the body of law created by investment treaties since World War II.
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39

Franck, Susan D. Arbitration Costs. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780190054434.001.0001.

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Investment treaty arbitration (sometimes called ISDS or investor-state dispute settlement) has become a flashpoint in the backlash against globalization, with costs becoming an area of core scrutiny. Yet “conventional wisdom” about costs is not necessarily wise. To separate fact from fiction, this book reality tests claims about investment arbitration and fiscal costs against hard data so that policy reforms can be informed by scientific evidence, rather than intuition or cognitive illusions. The exercise is critical, as investment treaties grant international arbitrators the power to order states—both rich and poor—to pay potentially millions of dollars to foreign investors when states violate the international law commitments made in the treaties. Meanwhile, the cost to access and defend the arbitration can also be in the millions of dollars. This book uses cognitive psychology insights and hard data to explore the reality of investment treaty arbitration, identify core demographics and basic information on outcomes, and drill down on the costs of parties’ counsel and arbitral tribunals. It offers a nuanced analysis of how and when cost-shifting occurs, parses tribunals’ rationalization (or lack thereof) of cost assessments, and models the variables most likely to predict costs, using data to point the way toward evidence-based normative reform. With an intelligent interdisciplinary approach that speaks to ongoing reform at entities such as the World Bank’s ICSID and UNCITRAL, this book provides the most up-to-date study of investment treaty dispute resolution costs, offering new insights that will shape the direction of investment treaty and arbitration reform more broadly.
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40

Jeswald W, Salacuse. 6 The Interpretation of Investment Treaties. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198703976.003.0006.

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This chapter addresses issues that arise in the interpretation of investment treaties and provides guidance on treaty interpretation. The interpretation of a treaty must take into account the ‘context’ of the treaty terms and the treaty’s object and purpose. It must also take into account subsequent agreement between the parties regarding the interpretation of the treaty as well as any subsequent practice in the application of the treaty. The chapter discusses the basic rules of interpretation found in Articles 31, 32, and 33 of the Vienna Convention on the Law of Treaties (VCLT) and considers the sources and languages of treaty texts, as well as the use of arbitrations and judicial decisions and scholarly commentary in the interpretation process.
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41

Emmanuel, Gaillard, and McNeill Mark. Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 2 The Energy Charter Treaty. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0002.

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The landscape of investment arbitration has shifted dramatically, with Europe — and the Energy Charter Treaty (ECT) — playing important roles in that transition. As the number of investment treaty arbitrations continues to mount, the ECT remains the most frequently invoked investment agreement with over 100 publicly known arbitrations filed to date. This chapter begins with some brief remarks on the genesis of the ECT. Each subsequent section focuses on a different aspect of the Treaty’s investment-related features, including the definitions of ‘Investor’ and ‘Investment’ in Article 1 of the ECT; the denial of benefits provision in Article 17(1), the Treaty’s substantive investment protections in Part III; and the dispute resolution mechanisms in Articles 26 and 27. Where useful, the chapter compares the Treaty’s text with analogous provisions in other investment agreements and addresses relevant arbitral decisions under the ECT.
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42

Jan, Paulsson. Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 4 The Role of Precedent in Investment Treaty Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0004.

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This chapter examines the role of precedent in investment treaty arbitration. The technical rules of precedent are practice rules developed within legal systems. A system that enforces the rule of precedent requires a supreme court authorised both to impose a rule on inferior courts and to modify it when it sees fit. However, there is nothing like it in the international realm, and even less so in the context of arbitration. Nonetheless, it is possible to imagine the development of an international ‘law on investment protection’ by something akin to the common-law process of developing authoritative rules by case-by-case accretion, though this type of precedent must be qualified by the word ‘persuasive’ rather than ‘binding’.
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43

Investor-state Disputes Arising from Investment Treaties: A Review (Unctad Series on International Investment Policies for Development). United Nations, 2006.

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44

Kendra, Magraw. Notable Developments in International Investment Arbitration Case Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/law-iic/9780198809722.016.0003.

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The years 2015 and 2016 saw dynamic and significant developments in international investment law and arbitration. This chapter discusses some notable decisions and developments in the case law that occurred during this period. It focuses on decisions that: are novel; address topical issues; may impact subsequent case law as a result of, amongst others, the interpretation of multilateral treaties or the development of legal doctrines; were particularly high-profile or garnered significant public attention; and/or may shape the development of the investor–state arbitration regime. The chapter is divided into six parts: security for costs; disclosure of third-party funding; strategic investment structuring to benefit from investment treaty protection; the first decisions issued in the Energy Charter Treaty (ECT) disputes against Spain; host states' right to regulate; and the enforcement and set-aside of arbitral awards.
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45

Jonathan, Bonnitcha, Skovgaard Poulsen Lauge N, and Waibel Michael. 1 The Investment Treaty Regime in Context. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198719540.003.0001.

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This chapter charts the rise of the global network of more than 3000 investment treaties and of investment treaty arbitration. Investors have used investment treaties to ask for compensation for a very wide range of government conduct. The chapter surveys the investment treaty regime and the investment regime complex. The regime consists of three main components: (i) investment treaties; (ii) the set of treaties, rules, and institutions governing investment treaty arbitration; and (iii) the decisions of arbitral tribunals applying and interpreting investment treaties. The growing role of investment treaty arbitration has made it highly controversial in both developed and developing countries, and has transformed the investment treaty regime from an obscure field of international law to a central part of the investment regime complex.
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46

Antonio R, Parra. 11 “The Premier International Investment Arbitration Facility in the World”. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198767466.003.0011.

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This chapter examines activities of the Centre from the start of 2011 to the end of June 2015. Almost 50 percent more cases were registered at ICSID in that period compared to the previous five years. The chapter provides some statistics on the cases of this period. As in the decade before, it shows, most the cases were brought to ICSID on the basis of the dispute settlement provisions of investment treaties, mostly bilateral investment treaties (BITs) (in over 60 percent of the cases). A large proportion of the cases (more than ten percent) came to ICSID under the Energy Charter Treaty (ECT). Cases submitted to the Centre pursuant to the dispute resolution clauses of investment contracts made up for a smaller share of the total. A handful (5 percent) of the cases were initiated under dispute settlement provisions of an investment law of the host State. The chapter then looks at institutional developments of ICSID during the period and considers new challenges that ICSID might meet in the future.
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47

The Regionalization of International Investment Treaty Arrangements. British Institute of International, 2015.

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48

Sovereign Choices And Sovereign Constraints Judicial Restraint In Investment Treaty Arbitration. Oxford University Press, 2013.

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49

Jeswald W, Salacuse. 15 Investment Treaty Dispute Settlement. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198703976.003.0015.

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This chapter first considers the nature of conflicts between investors and states. Three of the most common measures that may lead to a dispute are government actions that cancel or change the contractual or licence rights of an investment; seize or cancel property rights owned by an investor; or change legislation or regulations. The chapter then examines the various means provided by treaties to resolve such conflicts. Most investment treaties provide four separate dispute settlement methods: consultations and negotiations between contracting states; arbitration between contracting states; consultations and negotiations between covered investors and host governments; and investor–state arbitration. Finally, criticisms of investor–state arbitration are considered, regarding the integrity of arbitrators, treatment exceptions, arbitral procedure, transparency of proceedings, and submissions by non-disputing parties. The chapter concludes that the dispute settlement process seems to be in a state of flux and is open to various options for reform.
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50

Katia, Yannaca-Small, and Katsikis Dimitrios. Part III Guide to Key Jurisdictional Issues, 11 The Meaning of ‘Investment’ in Investment Treaty Arbitration. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198758082.003.0011.

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Despite the growing number of investor-state arbitrations and resulting jurisprudence, there is still no consensus on the criteria of investment. This chapter first examines the way ‘investment’ is ‘defined’ in bilateral investment treaties and other international investment agreements, as well as the meaning of investment in the International Centre for Settlement of Investment Dispute (ICSID) Convention. It then considers aspects of the arbitral jurisprudence on certain types of assets constituting an investment; the ‘objective’ and ‘subjective’ approach to interpreting definitions of ‘investment’; the characteristics that have been considered to be criteria of an investment; and the requirements that, to be protected, an ‘investment’ must be (i) made in accordance with the host State’s law and (ii) in the territory of the host State.
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