A Nascent Common Law

Radiating effects: The gentle impact of international investment law on general international law

“…104 Finally, in the field of responsibility, investment law decisions have 'add[ed] flesh to the bone' of the concept of de facto organs, 105 and provided observers with 'a better sense of what interests of the State are "essential",' and thus capable of being relied on for purposes of the defence of necessity. 106 Notwithstanding their differences in focus, and the commentators' diverse normative starting points, these snippets illustrate the central promise of the special regime of international investment law and arbitration: its '[fairly] consistent and steady flow' 107 of decisions is an ongoing exercise in applying concepts, notions, and doctrines recognized in the general international law of treaties, in the field of State responsibility, and in the practice of international dispute settlement; in clarifying these concepts in the face of real disputes; and in moulding them to fit 'circumstances which the most imaginative writers [as well as the codifiers of the general frameworks] never thought of'. 108 Across the board, this exercise results in a body of arbitral pronouncements enunciating rules that are more specific, more tangible, and often more 'grounded' than those comprising the general framework.…”

“…For another topic currently under consideration in the ILC, namely 'evidence before international courts and tribunals', Frédéric Sourgens hopes for, and expects, a similar uptake: 'Given the ILC's current composition, it certainly is familiar with investor-state arbitration;' its work may thus mark a more 'open engagement by general international legal bodies with the jurisprudence of investor-State tribunals'. 132 These considerations suggest that, while investment law's radiating effects continue to be resisted or ignored, general international lawyers seem to open up.…”