International Law Applicable Law in Investment Agreements
by
Catharine Titi
  • LAST MODIFIED: 27 March 2019
  • DOI: 10.1093/obo/9780199796953-0179

Introduction

The law applicable to investment disputes is of paramount importance because it can be a determinant of the outcome of the dispute. Disputing parties can choose the law applicable to their dispute. This derives from the principle of party autonomy in international arbitration. The parties’ choice of the applicable law often takes place in tandem with or as part of their consent to arbitration. Treaty partners can insert a clause on applicable law in the investment treaty or indirectly incorporate the provisions on applicable law of various arbitration rules, such as when offering arbitration according to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) or the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). When an investor accepts the host state’s offer to arbitrate, it also accepts its choice of applicable law as expressed in the treaty and/or in the arbitration rules under which the investor selects to bring the dispute. There are also other ways in which disputing parties can choose the applicable law. For instance, their choice of applicable law can be crystallized in a compromis drafted once a dispute has arisen. In the absence of an express choice of applicable law, the latter is determined on the basis of the default rules found in the arbitration rules which govern the dispute. As an illustration, Article 42(1) of the ICSID Convention provides that, if the parties do not agree on the applicable law, the tribunal shall apply the law of the host state, including its conflict of law rules, “and such rules of international law as may be applicable.” Debates about the identification of the applicable law have often revolved around the relative weight to be accorded to the municipal law of the host state and to international law. Sometimes the tribunal’s failure to apply primarily the investment treaty has been at the heart of debate. Failure to apply the proper law constitutes a ground for annulment under the ICSID Convention (as manifest excess of powers). In non-ICSID Convention arbitration, awards can also be set aside for failure to apply the applicable law (e.g., when the tribunal is perceived to overstep its mandate). However, such annulment or set-aside concerns the effect of failure to apply the applicable law. This is a separate issue and as such it is not covered in the present article.

General Overviews

General overviews of the law applicable in investment agreements tend to cover some or all of the following issues: the parties’ choice of applicable law, the applicable law in the absence of the parties’ express choice of law (often focused on the respective roles of international law and of the municipal law of the host state), ex aequo et bono decisions, and the prohibition of non liquet. General overviews of the law applicable in investment agreements include monographs, textbook chapters, and articles or chapters in edited volumes.

Monographs

Three monographs address applicable law in investment disputes: Begic 2005 offers a traditional overview and Kjos 2013 focuses on the interaction between national and international law. Zambrana 2010 is geared toward a Spanish-language audience.

  • Begic, Taida. Applicable Law in International Investment Disputes. Utrecht, The Netherlands: Eleven International, 2005.

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    Concise monograph offering a comprehensive overview of the applicable substantive law in investment disputes under the ICSID Convention and other arbitration rules. The topics covered include the applicable law as selected by the parties, the applicable law in the absence of the parties’ choice, annulment and set-aside for failure to apply the applicable law, prohibition of non liquet, and ex aequo et bono adjudication.

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    • Kjos, Hege Elisabeth. Applicable Law in Investor-State Arbitration: The Interplay between National and International Law. Oxford: Oxford University Press, 2013.

      DOI: 10.1093/acprof:oso/9780199656950.001.0001Save Citation »Export Citation »E-mail Citation »

      Available on open access, this monograph explores the substantive law applicable to the merits of investment disputes, with a focus on the interplay between national and international rules. It further addresses the territorialized or internationalized nature of investment tribunals, choice-of-law rules, claims and counterclaims, and the concurrent application of national and international law.

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      • Zambrana, Nicolás. La determinación del derecho aplicable al fondo en el arbitraje de inversiones. Aranzadi, Spain: Thomson Reuters, 2010.

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        Spanish-language monograph discussing the law applicable to the merits of investment disputes, in light of the case law.

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        Textbooks

        General textbooks on investment law and investment arbitration often include a chapter dealing with the applicable law. While some, like Dolzer and Schreuer 2012, serve as a first port-of-call for students of international investment law, works like Douglas 2009; Dugan, et al. 2008; and Newcombe and Paradell 2009 are more difficult to classify as textbooks (specifically) targeting students.

        • Dolzer, Rudolf, and Christoph Schreuer. Principles of International Investment Law. 2d ed. Oxford: Oxford University Press, 2012.

          DOI: 10.1093/law/9780199651795.001.0001Save Citation »Export Citation »E-mail Citation »

          Analysis of applicable law in investment dispute settlement in a classic student textbook. See pp. 288–293.

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          • Douglas, Zachary. The International Law of Investment Claims. Cambridge, UK: Cambridge University Press, 2009.

            DOI: 10.1017/CBO9780511581137Save Citation »Export Citation »E-mail Citation »

            Chapter 2, “Applicable Laws” (pp. 39–133), offers an innovative and interesting analysis of the topic, canvassing the law applicable to specific aspects or issues of a dispute, after summarizing it in a number of “Rules” (statements). For example, the law applicable to the existence of property rights is the law of the host state; the law applicable to the question of whether the claimant’s property rights constitute a covered investment is the investment treaty.

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            • Dugan, Christopher, Don Wallace Jr., Noah Rubins, and Burzū Ṣabāḥī. Investor-State Arbitration. New York: Oxford University Press, 2008.

              DOI: 10.1093/law:iic/9780379215441.book.1Save Citation »Export Citation »E-mail Citation »

              Chapter 9, “Governing Law in Investment Disputes” (pp. 201–217), provides a succinct and practical study of applicable law in investment dispute settlement. Besides more “traditional” topics examined in this context, such as the parties’ choice of law, the chapter dedicates a section to the role and interpretation of investment treaties, and to the role of customary international law in investment disputes.

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              • Newcombe, Andrew Paul, and Lluís Paradell. Law and Practice of Investment Treaties. Austin, TX: Kluwer Law International, 2009.

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                Chapter 2, “Applicable Substantive Law and Interpretation” (pp. 75–119), offers a detailed and easy-to-read analysis of the topic. Besides choice of law clauses, it discusses sources of law for investment disputes, the role of domestic and international law, including the law of international responsibility of the state, and precedents.

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                Selections from Journals and Edited Volumes

                This section includes general overviews of applicable law in journal articles, such as Sacerdoti 2004, Schreuer 2002, and Thomas and Dhillon 2014; chapters in edited volumes, such as Banifatemi 2010, Bjorklund 2014, Kreindler 2004, and Spiermann 2015; and an article in a yearbook, Douglas 2004.

                • Banifatemi, Jas. “The Law Applicable in Investment Treaty Arbitration.” In Arbitration under International Investment Agreements: A Guide to the Key Issues. Edited by Katia Yanaca-Small, 191–210. Oxford and New York: Oxford University Press, 2010.

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                  Discussion of substantive applicable law in light of the parties’ choice of applicable law and in the absence of such choice. The chapter also considers the relationship between investment treaty protections and the applicable law.

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                  • Bjorklund, Andrea K. “Applicable Law in International Investment Disputes.” In Litigating International Investment Disputes. Edited by Chiara Giorgetti, 261–286. Leiden, The Netherlands, and Boston: Brill Nijhoff, 2014.

                    DOI: 10.1163/9789004276574_010Save Citation »Export Citation »E-mail Citation »

                    Stepping beyond the confines of the usual discussion about applicable law in investment disputes, the chapter addresses, among others, practical issues such as the distinction between applicable law as a rule of decision and as an aid to interpretation; dépeçage, or the application of different laws to different parts of the dispute; and interactions between, on the one hand, national and international law, and on the other, different international laws.

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                    • Douglas, Zachary. “The Hybrid Foundations of Investment Treaty Arbitration.” British Yearbook of International Law 74.1 (2004): 151–289.

                      DOI: 10.1093/bybil/74.1.151Save Citation »Export Citation »E-mail Citation »

                      Douglas’s classic piece includes an exploration of applicable law (pp. 194–226), considering both the law applicable to the substance of the dispute and the law applicable to procedure.

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                      • Kreindler, Richard H. “The Law Applicable to International Investment Disputes.” In Arbitrating Foreign Investment Disputes. Edited by Norbert Horn, 401–424. The Hague: Kluwer Law International, 2004.

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                        Exploration of the substantive law applicable to investment disputes with an emphasis on the parties’ autonomy and freedom to choose the law governing their dispute. The chapter discusses choice of law rules under several procedural frameworks and investment treaties.

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                        • Sacerdoti, Giorgio. “Investment Arbitration under ICSID and UNCITRAL Rules: Prerequisites, Applicable Law, Review of Awards.” ICSID Review—Foreign Investment Law Journal 19.1 (2004): 1–48.

                          DOI: 10.1093/icsidreview/19.1.1Save Citation »Export Citation »E-mail Citation »

                          Interesting comparative analysis of applicable law under two different systems, notably the UNCITRAL Arbitration Rules, used both for investment and commercial disputes, and arbitration under the ICSID Convention.

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                          • Schreuer, Christoph. “Failure to Apply the Governing Law in International Investment Arbitration.” Austrian Review of International and European Law 7 (2002): 147–196.

                            DOI: 10.1163/157365102X00055Save Citation »Export Citation »E-mail Citation »

                            Extensive general discussion of the law governing investment disputes as a prelude to analysis of the consequences of failure to apply this law.

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                            • Spiermann, Ole. “Investment Arbitration: Applicable Law.” In International Investment Law: A Handbook. Edited by Marc Bungenberg and Jörn Griebel, 1373–1390. Baden-Baden, Germany: Beck, Hart and Nomos, 2015.

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                              Examination of the substantive applicable law in both investment treaty and contract claims. An earlier but not identical version of the chapter by the same author appeared under the title “Applicable Law,” in The Oxford Handbook of International Investment Law, Peter Muchlinski, Federico Ortino, and Christoph Schreuer, eds. (Oxford: Oxford University Press, 2008), pp. 89–118.

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                              • Thomas, J. Christopher, and Harpreet Kaur Dhillon. “Applicable Law under International Investment Treaties.” Singapore Academy of Law Journal 26 (2014): 975–998.

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                                The article explores the different approaches adopted by tribunals to identify the applicable law and considers reasons for such differential approaches in light of treaty structure and the extent to which treaties refer to the law of the host state.

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                                Applicable Law under the ICSID Convention

                                Since its creation in 1965, the ICSID framework has dominated the resolution of investment disputes, and arbitration for the vast majority of investment disputes has been conducted under the ICSID Convention. As a consequence, a number of publications, from the 1960s onward, have focused on applicable law under the ICSID Convention.

                                Early Contributions

                                Some early publications date from the time when ICSID did not yet administer investment treaty arbitrations. However, their analysis retains its pertinence, while offering useful insights into the elaboration and travaux préparatoires of the ICSID Convention, such as Broches 1972, Feuerle 1977, and Lauterpacht 1968. Sometimes these early scholarly analyses address contractual investment claims, such as in Kahn 1968.

                                • Broches, Aron. “The Convention on the Settlement of Investment Disputes between States and Nationals of Other States.” Collected Courses of The Hague Academy of International Law 136 (1972): 381–395.

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                                  Succinct contribution and analysis of the terms of Article 42 of the ICSID Convention by the Convention’s “principal architect,” according to Christoph Schreuer’s famous phrase, published in the wake of the adoption of the ICSID Convention.

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                                  • Feuerle, Peter. “International Arbitration and Choice of Law under Article 42 of the Convention on the Settlement of Investment Disputes.” Yale Studies in World Public Order 4.89 (1977): 89–121

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                                    Interesting account of applicable law under the ICSID Convention, interpreting Article 42 of the Convention in light of its historical context.

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                                    • Kahn, Philippe. “The Law Applicable to Foreign Investments: The Contribution of the World Bank Convention on the Settlement of Investment Disputes.” Translated by Arthur M. Fell. Indiana Law Journal 44.1 (1968): 1–32.

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                                      An interesting early account of the law applicable in investment disputes under the ICSID Convention, published a mere three years after the ICSID Convention was opened for signature, two years after the ICSID Convention entered into force, and four years before the first ICSID case was registered. A significant part of the discussion revolves around investment contracts.

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                                      • Lauterpacht, Elihu. “The World Bank Convention on the Settlement of International Investment Disputes.” In Recueil d’études de droit international en hommage à Paul Guggenheim. Edited by Faculté de droit de l’Université de Genève, 642–664. Geneva, Switzerland: Faculté de droit de l’Université de Genève, 1968.

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                                        Another early and much-cited publication on applicable law, authored three years after the ICSID Convention was opened for signature.

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                                        More Recent Contributions (1990s – Onward)

                                        Publications in this section range from 1994, like Shihata and Parra 1994, when investment treaty case law was not developed, to 2014, as in Thomas and Dhillon 2014. The more recent the contribution, the more it tends to benefit from interpretations of applicable law in investment dispute settlement. Written with such hindsight and distilling past experience, articles and chapters in this section can focus on specific issues (e.g., Gaillard and Banifatemi 2003 on the interaction between national and international law, Kreindler 2004 on the choice of law, Reisman 2000 on the role of international law, Sacerdoti 2004 on a comparison with applicable law in non-ICSID Convention arbitration) and often discuss existing case law (e.g., Parra 2008). United Nations Conference on Trade and Development (UNCTAD 2003) offers probably the best concise tour d’horizon and Schreuer, et al. 2009 the most comprehensive overview of applicable law under the ICSID Convention. Di Pietro 2005 discusses applicable law under the ICSID Convention in light of investment contract claims.

                                        • Di Pietro, Domenico. “Applicable Law under Article 42 of the ICSID Convention: The Case of Amco v. Indonesia.” In International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law. Edited by Todd Weiler, 223–279. London: Cameron May, 2005.

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                                          Examination of the applicable law in ICSID Convention investment dispute settlement in light of Amco v. Indonesia, a contractual dispute.

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                                          • Gaillard, Emmanuel, and Yas Banifatemi. “The Meaning of “and” in Article 42(1), Second Sentence, of the Washington Convention: The Role of International Law in the ICSID Choice of Law Process.” ICSID Review—Foreign Investment Law Journal 18.2 (2003): 375–411.

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                                            As indicated in its title, this article focuses on a particular question relating to applicable law under the ICSID Convention, namely, in the absence of the parties’ choice of applicable law, what weight is to be given to the municipal law of the host state, and notably, what weight is to be given to international law.

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                                            • Kreindler, Richard H. “The Law Applicable to International Investment Disputes.” In Arbitrating Foreign Investment Disputes. Edited by Norbert Horn, 401–424. The Hague: Kluwer Law International, 2004.

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                                              Interesting approach to the discussion of applicable law, with a focus on the parties’ freedom of choice of the applicable law under the ICSID Convention.

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                                              • Parra, Antonio R. “Applicable Law in Investor-State Arbitration.” In Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2007. Edited by Arthur W. Rovine, 1–12. Leiden, The Netherlands: Martinus Nijhoff, 2008.

                                                DOI: 10.1163/ej.9789004167384.i-336.7Save Citation »Export Citation »E-mail Citation »

                                                Analysis of the applicable law under Article 42(1) of the ICSID Convention, in light of its interpretation by ICSID Convention tribunals.

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                                                • Reisman, W. Michael. “The Regime for Lacunae in the ICSID Choice of Law Provision and the Question of Its Threshold.” ICSID ReviewForeign Investment Law Journal 15.2 (2000): 362–381.

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                                                  Discussion of Article 42(1) of the ICSID Convention with a focus on the role of international law, including its supplemental (filling in gaps) and corrective (ius cogens) functions.

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                                                  • Sacerdoti, Giorgio. “Investment Arbitration under ICSID and UNCITRAL Rules: Prerequisites, Applicable Law, Review of Awards.” ICSID Review—Foreign Investment Law Journal 19.1 (2004): 1–48.

                                                    DOI: 10.1093/icsidreview/19.1.1Save Citation »Export Citation »E-mail Citation »

                                                    Discussion of the applicable law under the ICSID Convention in light of a comparison with the UNCITRAL Arbitration Rules and the ICSID Additional Facility, and the latter two sets of rules’ reliance on the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

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                                                    • Schreuer, Christoph H., Loretta Malintoppi, August Reinisch, and Anthony Sinclair. ICSID Convention: A Commentary. 2d ed. Cambridge, UK: Cambridge University Press, 2009.

                                                      DOI: 10.1017/CBO9780511596896Save Citation »Export Citation »E-mail Citation »

                                                      The chapter on “Article 42” of the ICSID Convention of this publication (pp. 550–639) constitutes probably the most comprehensive, authoritative, and up-to-date scholarly analysis of applicable law under the ICSID Convention. It contains an-depth analysis of the terms of Article 42 of the ICSID Convention, in light of relevant investment case law.

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                                                      • Shihata, Ibrahim F. I., and Antonio R. Parra. “Applicable Substantive Law in Disputes between States and Private Foreign Parties: The Case of Arbitration under the ICSID Convention.” ICSID Review—Foreign Investment Law Journal 9.2 (1994): 183–213.

                                                        DOI: 10.1093/icsidreview/9.2.183Save Citation »Export Citation »E-mail Citation »

                                                        While not qualifying as an “early” contribution, this article still appeared at a time before the more recent surge of investment disputes and interest in investment law and arbitration. It offers a detailed discussion of Article 42 of the ICSID Convention, including analysis of Paragraph 2 of the article on non liquet and ex aequo et bono decisions. Exploration of relevant early case law, including on annulment for failure to apply the applicable law.

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                                                        • Thomas, J. Christopher, and Harpreet Kaur Dhillon. “Applicable Law under International Investment Treaties.” Singapore Academy of Law Journal 26 (2014): 975–998.

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                                                          While offering a broad discussion of applicable law, a significant part of this article is dedicated to an analysis of the negotiation and application of Article 42(1) of the ICSID Convention in cases with different applicable treaty structures.

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                                                          • UNCTAD. “Applicable Law.” In Course on Dispute Settlement in International Trade, Investment and Intellectual Property. 1–40. New York and Geneva, Switzerland: United Nations, 2003.

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                                                            Concise, well-written, reader-friendly overview of applicable law under the ICSID Convention and related issues. The publication draws heavily on preexisting literature but offers a useful summary of important issues. Especially relevant to students of international investment law and dispute settlement.

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                                                            Applicable Law and Jurisdiction

                                                            While scholarly discussion of the law applicable to investment disputes tends to focus on the law applicable to the merits of the dispute, a handful of publications have specifically addressed the law applicable to the tribunal’s jurisdiction. Schreuer 2014 canvasses applicable law and jurisdiction in general. Other publications address, among other issues, jurisdiction over counterclaims. This is the case for Douglas 2009, Kjos 2013, and Lalive and Halonen 2011.

                                                            • Douglas, Zachary. The International Law of Investment Claims. Cambridge, UK: Cambridge University Press, 2009.

                                                              DOI: 10.1017/CBO9780511581137Save Citation »Export Citation »E-mail Citation »

                                                              Extensive and innovative discussion of the law applicable to jurisdiction, including the law applicable to counterclaims, addressing separately narrowly defined issues of jurisdiction and admissibility. See pp. 39–133.

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                                                              • Kjos, Hege Elisabeth. Applicable Law in Investor-State Arbitration: The Interplay between National and International Law. Oxford: Oxford University Press, 2013.

                                                                DOI: 10.1093/acprof:oso/9780199656950.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                Extensive and interesting discussion of applicable law in the context of the tribunal’s jurisdiction over counterclaims in chapter 4, entitled “The Scope of the Arbitration Agreement: Claims and Counterclaims of a National and/or International Nature” (pp. 105–155).

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                                                                • Lalive, Pierre, and Laura Halonen. “On the Availability of Counterclaims in Investment Treaty Arbitration.” Czech Yearbook of International Law 2 (2011): 141–156.

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                                                                  Brief discussion of applicable law in the context of the tribunal’s jurisdiction over counterclaims.

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                                                                  • Schreuer, Christoph. “Jurisdiction and Applicable Law in Investment Treaty Arbitration.” McGill Journal of Dispute Resolution 1.1 (2014): 1–25.

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                                                                    The article canvasses the law applicable to the tribunal’s jurisdiction and the differing scope of jurisdiction depending on the treaty (such as covering all disputes or only specific types of disputes). The article finds no obvious link between the scope of a tribunal’s jurisdiction and provisions on the applicable law. The article also considers situations where jurisdiction and applicable law are based on different legal sources, such as in the case where the tribunal applies standards that existed before the investment treaty’s entry-into-force (the investment treaty providing for jurisdiction).

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                                                                    Applicable Law and Non Liquet

                                                                    Article 42(2) of the ICSID Convention enjoins tribunals not to “bring in a finding of non liquet on the ground of silence or obscurity of the law.” While not prima facie a matter of applicable law, the prohibition of non liquet is nonetheless relevant to the law governing the dispute, since any eventual gap-filling exercise can only take place by law that is eventually applicable to the dispute. Non liquet in investment treaty law has not engendered prolific literature, and Begic 2005; Schreuer, et al. 2009; Shihata and Parra 1994; and UNCTAD 2003 deal with the issue with exemplary laconicism.

                                                                    • Begic, Taida. “Prohibition of a Non Liquet.” In Applicable Law in International Investment Disputes. By Taida Begic, 217–218. Utrecht, The Netherlands: Eleven International, 2005.

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                                                                      Discussion of non liquet in the monograph in two pages.

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                                                                      • Schreuer, Christoph H., Loretta Malintoppi, August Reinisch, and Anthony Sinclair. ICSID Convention: A Commentary. 2d ed. Cambridge, UK: Cambridge University Press, 2009.

                                                                        DOI: 10.1017/CBO9780511596896Save Citation »Export Citation »E-mail Citation »

                                                                        Succinct discussion of non liquet in Article 42 of the ICSID Convention over two pages (pp. 630–631).

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                                                                        • Shihata, Ibrahim F. I., and Antonio R. Parra. “Applicable Substantive Law in Disputes between States and Private Foreign Parties: The Case of Arbitration under the ICSID Convention.” ICSID Review—Foreign Investment Law Journal 9.2 (1994): 183–213.

                                                                          DOI: 10.1093/icsidreview/9.2.183Save Citation »Export Citation »E-mail Citation »

                                                                          Short discussion (pp. 195–196) of recourse to both international and national law in order to fill gaps and avoid a finding of non liquet.

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                                                                          • UNCTAD. “Applicable Law”.” In Course on Dispute Settlement in International Trade, Investment and Intellectual Property. 1–40. New York and Geneva, Switzerland: United Nations, 2003.

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                                                                            Succinct and to the point, the publication summarizes non liquet under the ICSID Convention (pp. 27–28).

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                                                                            Decisions Ex Aequo et Bono

                                                                            Although debated whether an issue of jurisdiction or of applicable law (Broches 1972), decisions ex aequo et bono are part of the present topic; they derive from the parties’ agreement to free the tribunal from the strict obligation to apply the applicable law and authorize it instead to decide according to what is “equitable and good.” Although several publications discuss ex aequo et bono adjudication in public international law, the topic has attracted more limited interest in investment arbitration; this despite the fact that, while for instance the International Court of Justice has never decided ex aequo et bono, at least two investment tribunals have exercised such a mandate. Schreuer 1996 and Trakman 2008 focus on decisions ex aequo et bono. In a handful of cases, ex aequo et bono adjudication forms part of a broader discussion on applicable law, as discussed in Begic 2005; Schreuer, et al. 2009; and Sohn 1963. Shihata and Parra 1994 and UNCTAD 2003 deal with ex aequo et bono decisions very succinctly.

                                                                            • Begic, Taida. “Decision Ex Aequo et Bono.” In Applicable Law in International Investment Disputes. By Taida Begic, 219–230. Utrecht, The Netherlands: Eleven International, 2005.

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                                                                              Chapter 7 of the monograph is dedicated to ex aequo et bono decision-making, discussing among other issues the possibility of dépeçage and the relevant investment case law.

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                                                                              • Broches, Aron. “The Convention on the Settlement of Investment Disputes between States and Nationals of Other States.” Collected Courses of The Hague Academy of International Law 136 (1972): 387–395.

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                                                                                Concise presentation of decisions ex aequo et bono pursuant to Article 42(3) of the ICSID Convention. The author sees ex aequo et bono decisions as not only capable of offering satisfactory dispute settlement but also appropriate to the continuing working relationship between investors and host states.

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                                                                                • Schreuer, Christoph. “Decisions Ex Aequo et Bono under the ICSID Convention.” ICSID Review—Foreign Investment Law Journal 11.1 (1996): 37–63.

                                                                                  DOI: 10.1093/icsidreview/11.1.37Save Citation »Export Citation »E-mail Citation »

                                                                                  This publication contains an extensive analysis of decisions ex aequo et bono under the ICSID Convention. While somewhat dated for a field as fast-paced as international investment law, the publication retains all its pertinence and significantly looks at length into the two ICSID Convention tribunals that decided under a mandate ex aequo et bono.

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                                                                                  • Schreuer, Christoph H., Loretta Malintoppi, August Reinisch, and Anthony Sinclair. ICSID Convention: A Commentary. 2d ed. Cambridge, UK: Cambridge University Press, 2009.

                                                                                    DOI: 10.1017/CBO9780511596896Save Citation »Export Citation »E-mail Citation »

                                                                                    While analyzing the terms of Article 42 of the ICSID Convention, the authors discuss decisions ex aequo et bono. See pp. 631–639.

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                                                                                    • Shihata, Ibrahim F. I., and Antonio R. Parra. “Applicable Substantive Law in Disputes between States and Private Foreign Parties: The Case of Arbitration under the ICSID Convention.” ICSID Review—Foreign Investment Law Journal 9.2 (1994): 183–213.

                                                                                      DOI: 10.1093/icsidreview/9.2.183Save Citation »Export Citation »E-mail Citation »

                                                                                      Brief discussion of ex aequo et bono decision-making (pp. 197–198).

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                                                                                      • Sohn, Louis B. “The Function of International Arbitration Today.” Collected Courses of The Hague Academy of International Law 108 (1963): 41–59.

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                                                                                        In-depth discussion of the ex aequo et bono mandate in international arbitration in a publication that precedes the adoption of the ICSID Convention, by an author who has written extensively on equitable considerations in international law.

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                                                                                        • Trakman, Leon. “Ex Aequo et Bono: Demystifying an Ancient Concept.” Chicago Journal of International Law 8.2 (2008): 621–642.

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                                                                                          The article evaluates ex aequo et bono decision-making and argues in its favor. This article also appeared under the title “Ex Aequo et Bono: Basing Decisions on That Which Is Just and Fair” in Transnational Dispute Management 9.3 (2012).

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                                                                                          • UNCTAD. “Applicable Law.” In Course on Dispute Settlement in International Trade, Investment and Intellectual Property. 1–40. New York and Geneva, Switzerland: United Nations, 2003.

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                                                                                            Concise summary of ex aequo et bono decisions under the ICSID Convention and examples from the case law (pp. 29–31).

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                                                                                            Non-Investment Considerations as Part of the Applicable Law

                                                                                            An issue that has been discussed in the context of applicable law in investment treaties is to what extent Article 31(3)(c) of the Vienna Convention on the Law of Treaties allows investment tribunals to import norms found in other international law applicable in the relations between the parties. This is the issue of the application of the principle of systemic integration in investment law. Although properly speaking the principle of systemic integration relates to the interpretation of investment treaties, to the extent that it is accepted, it results in the tribunal enlarging the scope of the applicable law by introducing extraneous legal norms, such as human rights and environmental treaties. Scholarly literature on the topic is very prolific but not necessarily investment law specific and touches upon a great variety of issues. The publications included here are all investment law specific and offer a very selective view of the topics covered in this strain of literature. The author of Brabandere 2014 examines non-investment considerations as part of his argument that investment treaty arbitration is part of public international law. Dupuy, et al. 2009 explores the topic from the viewpoint of human rights. Hofmann and Tams 2011 is interested more generally in interactions between investment arbitration and other legal fields. Lalive and Halonen 2011 studies the issue from the perspective of counterclaims. Rosentreter 2015 focuses on the principle of systemic integration in investment law per se.

                                                                                            • Brabandere, Eric de. Investment Treaty Arbitration as Public International Law: Procedural Aspects and Implications. Cambridge, UK: Cambridge University Press, 2014.

                                                                                              DOI: 10.1017/CBO9781107589216Save Citation »Export Citation »E-mail Citation »

                                                                                              Chapter 4 (pp. 122–147) addresses the “applicable law and non-investment considerations in investment treaty arbitration.” The author discusses the elementary principles relating to the applicable law and argues in favor of the preponderant influence of public international law. He explores, among others, the issue of whether investment tribunals can take into account human rights and customary international law, including in light of the principle of systemic integration.

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                                                                                              • Dupuy, Pierre-Marie, Ernst-Ulrich Petersmann, and Francesco Francioni, eds. Human Rights in International Investment Law and Arbitration. Oxford: Oxford University Press, 2009.

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                                                                                                While not directly canvassing the governing law in investment treaties, Part 4 of this edited volume, entitled “Case Studies on Protection Standards and Specific Human Rights in Investor-State Arbitration,” contains several contributions indirectly considering the extent to which human rights can form part of the law applicable to investment disputes.

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                                                                                                • Hofmann, Reiner, and Christian J. Tams, eds. International Investment Law and General International Law: From Clinical Isolation to Systemic Integration? Baden-Baden, Germany: Nomos, 2011.

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                                                                                                  Not directly addressing applicable law, this edited volume comprises contributions discussing, among other issues, non-investment considerations in investment arbitration.

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                                                                                                  • Lalive, Pierre, and Laura Halonen. “On the Availability of Counterclaims in Investment Treaty Arbitration.” Czech Yearbook of International Law 2 (2011).

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                                                                                                    Non-investment considerations as part of the applicable law in investment treaty disputes are explored in the context of counterclaims (pp. 150–151).

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                                                                                                    • Rosentreter, Daniel. Article 31(3)(c) of the Vienna Convention on the Law of Treaties and the Principle of Systemic Integration in International Investment Law and Arbitration. Baden-Baden, Germany: Nomos, 2015.

                                                                                                      DOI: 10.5771/9783845262383Save Citation »Export Citation »E-mail Citation »

                                                                                                      Monograph dedicated to the topic of systemic integration in international investment law.

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                                                                                                      Applicable Law—Treatment of Other Specific Topics

                                                                                                      Two publications worth citing address specific aspects of the law applicable to investment disputes and therefore do not fall under any of the above categories. Dumberry 2016 discusses customary international law and Hepburn 2016 the Trans-Pacific Partnership Agreement.

                                                                                                      • Dumberry, Patrick. The Formation and Identification of Rules of Customary International Law in International Investment Law. Cambridge, UK: Cambridge University Press, 2016.

                                                                                                        DOI: 10.1017/CBO9781316481479Save Citation »Export Citation »E-mail Citation »

                                                                                                        Chapter 5, “The Fundamental Importance of Customary Rules in International Investment Law” (pp. 351–405), includes a discussion of customary international law as applicable to investment disputes.

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                                                                                                        • Hepburn, Jarrod. “Applicable Law in TPP Investment Disputes.” Melbourne Journal of International Law 17 (2016): 349.

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                                                                                                          Analysis of applicable law in investment disputes under the Trans-Pacific Partnership Agreement.

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