IIL Flashcards
Who are disputes usually between?
States and foreign investors
How do BITs tend to define investment?
Very typically BITs will contain a very wide definition of investment.
What are the three defining features of international investment law?
(1) its decentralized (2) it emerged organically unlike other fields of law which were purposefully designed (3) it’s highly contested but dynamically stable.
When did BITs emerge as model treaties?
In Europe in the 1960s
Does a regime need high levels of centralization and global control to survive?
No, the decentralized composition of IIL and its self-organizing qualities demonstrate that high levels of centralization and global control are not indispensable for a regime to thrive.
Should we centralise international investment law?
No, more formalized centralization can make experimentation and adaptation more difficult.
Have BITs lead to increased foreign investment flows?
Pauwelyn has claimed that the evidence linking BITs to actual increases in foreign investment flows is limited or, at least, contested
Why would foreign investors want to circumvent domestic courts?
Parties can pick arbitrators, timescales etc. Arbitral procedures are much quicker than court proceedings. Lack of appeal under ICSID.
How did Treaty of Westphalia affect how states could protect their citizens abroad?
Rules limited the power of both host and home states to enable variable degrees of private international economic intercourse albeit mostly with an eye to expanding the power and wealth of states rather than protecting the individual rights of aliens
AAPL v Sri Lanka
Small tweaks to international investment law can have a big cumulative effect
What was early goal of BITs?
According to Pauwelyn, avoiding backsliding of custom was early goal.
What does international investment law grant?
Direct treaty rights to private investors against interventions by states, enforced at the international law level through investor-state arbitration.
What changed for foreign investment in the 1930s?
Foreign direct investment as we know it today emerged, especially in the mining and oil sectors. To protect investors who made contracts with states, investor-state arbitration was provided for.
Why would states agree to BITs?
The rise in foreign investment flows is partly due to international investment arbitration as it gives foreign investors special protection.
Which type of treaties emerged after WW2?
Westphalia-style treaties of friendship, commerce and navigation (FCN treaties)
Core difference between FCN treaties and early BITs?
early BITs were de facto one-way streets between developed and developing countries while FCN treaties were reciprocal.
How has shift to private standing impacted diplomatic protection?
It’s reduced financial and political costs, as while host states must defend arbitration claim they avoid diplomatic, economic and perhaps military pressure from strong states whose nationals believe they have been injured
Which investors benefit from shift to private standing?
It enhances protection for investors whose claim the home state would otherwise not have espoused but weakens claims for investors who don’t have resources to file an ICSID claim
What are umbrella clauses?
Clauses which elevate contractual claims to treaty status. It is when host states commit by treaty to comply with investor-state contracts
What important right to BITs give foreign investors?
Foreign investors are given right to circumvent domestic courts. Foreign investors are given special standards of protection that are not given to local actors.
Pre- Treaty of Westphalia, how did countries protect their citizens abroad?
In state of nature, states used force/threat of force to protect their citizens abroad.
When did BITs stop being one-way streets?
The late 1980s when South-South BITs emerged, and mid 1990s when investment chapters were included in FTAs between developed countries
What is the hybrid of international investment law composed of?
mixing and combining investment contracts, host state law, and international law
What is the defining feature of IIL?
private standing to invoke treaty breach
