International law on foreign investment finds its origins in the international law on the treatment of aliens and has long been regarded as an instrument of Western dominance over and exploitation of developing countries. In the aftermath of decolonization, both substantive and procedural rules on the treatment of foreign investment were at the center of developing countries’ struggle to gain control over their natural resources and establish a New International Economic Order. With the creation of the International Centre for Settlement of Investment Disputes (ICSID), in 1965, the World Bank sought to bridge the gap between capital-exporting and capital-importing countries by means of an international arbitration institution for the settlement of investment disputes between states and nationals of other states, offering investors a neutral venue, while freeing host states from power-based diplomatic protection. During subsequent decades, this “procedure first” approach was complemented by the development of substantive rules laid down in thousands of bilateral investment treaties (BITs). Having reached its climax during the first decade of the 20th century, with hundreds of investment arbitration proceedings, the system again faces a legitimacy crisis in both its substantive and procedural components, which are criticized for their inadequacy as a means of balancing private investors’ rights and the general interest. This evolution is also reflected in legal literature, which, as investor-state arbitration has developed since the late 20th century, was largely descriptive in nature and increasingly is more critical and normative.
Given the very large array of issues raised, both historically and in the early 21st century, by international investment law, many general overviews of this area of the law unsurprisingly tend, their general scope notwithstanding, to concentrate on subareas or to look at the issues from a specific perspective. Although it would appear at first glance to compile contributions on specific subjects, Muchlinski, et al. 2008 covers all the main areas of international investment law. Subedi 2008 equally presents a comprehensive analysis of investment law, both substantive and procedural, and is remarkably structured in its analysis of early-21st-century issues and ways to address them. McLachlan, et al. 2007 deals with the principles of investment law in the order in which they are likely to be addressed in arbitral proceedings. Salacuse 2010 brings an exhaustive analysis of the various aspects of investment treaties, including policy issues. This text mainly concentrates on substantive issues but has a chapter on dispute settlement. Dolzer and Schreuer 2012 is a concise yet complete and authoritative overview concentrating on the substantive principles of investment law, complemented by a presentation of the settlement of disputes. Newcombe and Paradell 2009 gives an equally exhaustive and stimulating analysis of the substantive principles, accompanied with ampler references than Dolzer and Schreuer 2012. Sornarajah 2010 offers a broad view of the subject matter, including capital-importing countries’ perspectives. This work also contains a chapter on the liability of multinational corporations. Alvarez 2011 analyzes the functions, critiques, and future of international investment law and provides excellent theoretical insight of great practical significance.
Alvarez, José E. The Public International Law Regime Governing International Investment. The Hague: Hague Academy of International Law, 2011.
Most valuable for its analysis of the functions, critiques, and future of international investment law; also provides excellent theoretical insight of great practical significance.
Dolzer, Rudolf, and Christoph Schreuer. Principles of International Investment Law. 2d ed. Oxford: Oxford University Press, 2012.
A concise yet complete and authoritative overview concentrating on the substantive principles of investment law, complemented by a presentation of the settlement of disputes. Among the ideal student handbooks.
McLachlan, Campbell, Laurence Shore, and Matthew Weiniger. International Investment Arbitration: Substantive Principles. Oxford: Oxford University Press, 2007.
Deals with the principles of investment law in the order in which they are likely to be addressed in arbitral proceedings. Despite its subtitle, the text discusses dispute settlement provisions, then examines the ambit of protection, including parallel proceedings, before turning to substantive rights.
Muchlinski, Peter, Federico Ortino, and Christoph Schreuer, eds. The Oxford Handbook of International Investment Law. Oxford: Oxford University Press, 2008.
A collective work, with very thorough contributions on all the main subjects of international investment law, grouped into three parts: “Fundamental Issues,” “Substantive Issues,” and “Procedural Issues.”
Newcombe, Andrew, and Lluís Paradell. Law and Practice of Investment Treaties: Standards of Treatment. Alphen aan den Rijn, The Netherlands: Kluwer, 2009.
Gives an exhaustive and stimulating analysis of the substantive principles. Because of the numerous references, this book is also an ideal starting point for further study.
Salacuse, Jesuald D. The Law of Investment Treaties. Oxford: Oxford University Press, 2010.
Brings an exhaustive analysis of the various aspects of investment treaties, including policy issues. The text mainly concentrates on substantive issues but has a chapter on dispute settlement.
Sornarajah, Muthucumaraswamy. The International Law on Foreign Investment. 3rd ed. Cambridge, UK: Cambridge University Press, 2010.
Offers a broad view of the subject-matter, including capital-importing countries’ perspectives. The work also contains a chapter on the liability of multinational corporations.
Subedi, Surya P. International Investment Law: Reconciling Policy and Principle. Oxford: Hart, 2008.
Presents a comprehensive critical analysis of investment law, both substantive and procedural. Analyzes the evolution of investment law and the protection of investment in customary law and through BITs, fleshes out the principles through jurisprudence, and addresses a wealth of early-21st-century issues and ways to address the challenges.
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