Investment protection treaties generally provide for the obligation to treat investments fairly and equitably, even if the wording of the rule and its relationship with the customary international standard may differ. The open-textured nature of the rule, the ambiguous relationship between the vague treaty and equally vague customary rules, and States' interpretations of the content and relationship of both rules (not to mention the frequency of successful invocation by investors) make this issue one of the most controversial aspects of investment protection law. This monograph engages in a comprehensive analysis of the relationship between the international minimum standard and fair and equitable treatment. It provides an original argument about the historical development of the international standard, a normative rationale for reading it into the treaty rules of fair and equitable treatment, and a coherent methodology for establishing the content of this standard. The first part of this book untangles the history of both the international minimum standard and fair and equitable treatment. The second part addresses the normative framework within which the contemporary debate takes place. After an exhaustive review of all relevant sources, it is argued that the most persuasive reading of fair and equitable treatment is that it always makes a reference to customary law. The third part of the book builds on the historical analysis and the normative framework, explaining the content of the contemporary standard by careful comparative human rights analysis.
The obligation of States to provide full reparation for internationally wrongful acts, including by full compensation, is one of the bedrock principles of international law. The article challenges this principle for cases where compensation is crippling for the responsible State or its peoples, which can occur when State responsibility is implemented before international courts and tribunals. The International Law Commission's decision not to qualify full reparation for instances of crippling compensation in its influential Articles on State responsibility was an unpersuasive legal position to adopt in 2001, and its rationale has aged badly. However, the failure by States and other actors to challenge it in the following two decades signified its endorsement by the international legal process. Nevertheless, the case against the permissibility of crippling compensation in modern international law can still be made, both on a case-by-case basis and at the level of customary secondary rules of State responsibility.
Casablanca opens with a shot of a revolving globe. 1 The intention, as the producer of the movie explained, was 'to have a spinning globe-an unusual, interesting shot, sketchily lighted', 'immediately preceding the montage of the refugees'. 2 Before the camera zooms in to the refugee trail starting in Paris, it shows the political map of Europe, which-as a careful eye might spot-also includes the boundaries of Estonia, Latvia, and Lithuania. Baltic States do not play a major (or indeed any) role in the movie, but a watcher familiar with the history of international relations might pause and wonder about the cartographic solution. The demarcated presence of the three Baltic States on the world map of December 1941-when the story of Casablanca unfolds-is not an obvious choice. These States had been effectively annexed by the Soviet Union in 1940, 3 and in 1941 were under the effective control of the German Reich. Why, then, are they still on the map? An international lawyer, if one were available to discuss the pedantic minutiae, would likely explain the presence of the Baltic States as an application of the more general proposition that illegal annexation does not affect the existence of the State under international law 4 (or, to
The current (once) international law of state responsibility is shaped by the International Law Commission's Articles on responsibility of States for internationally wrongful acts, generally endorsed in state and judicial practice as consonant with custom. This Essay makes the case that the global pandemic and associated practice may affect foundational elements of the (future) law of state responsibility. It outlines the contours of systemic grain of possible developments by reference to the tension between bilateralism and community interests in international law.
Is there an exception to the principle of full reparation in international investment arbitration for cases in which full compensation is crippling for the responsible State or its peoples? The routine presentation and consideration of billion-dollar-plus investment arbitration claims in the first half of 2021 suggests that this subject has not been invented in order to enable it to be written about but is one of considerable importance for the field of international investment law and its actors. The frame of reference in a discussion about compensation in investment law is provided by the law of State responsibility, strongly shaped by the 2001 International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (2001 ILC Articles on State Responsibility), which treat crippling compensation as permissible as a matter of content of responsibility. The argument for the permissibility of crippling compensation explicitly assumed the rarity of such claims; safeguards in primary, secondary, and tertiary rules for the few cases when they did arise; and the enlightened self-interest of States as repeat-playing actors in not making them—and perhaps implicitly scepticism about compound interest and Discount Cash Flow valuation. None of these assumptions holds true in modern investor State arbitration. Nevertheless, the predominant reaction to crippling compensation claims has been silence by tribunals and respondent States, suggestive in legal terms of endorsement of their permissibility in line with the 2001 ILC Articles on State Responsibility. There is some scope for addressing crippling compensation within the 2001 ILC Articles on State Responsibility, both indirectly (challenging the meaningfulness of the question in the first place or considering crippling compensation as part of the general discussion of the content of responsibility) and directly, under the rubrics of circumstances precluding wrongfulness and enforcement. The case can also be made for moving beyond the 2001 ILC Articles on State Responsibility, by emphasising the difference between implementation of responsibility in inter-State and investor–State legal relations or even directly arguing for a change of the applicable customary rule.
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