International Investment Law and Legal Theory

Abstract

Expropriation is a hotly debated issue in international investment law. This is the first study to provide a detailed analysis of its norm-theoretical dimension, setting out the theoretical foundations underlying its understanding in contemporary legal scholarship and practice. Jörg Kammerhofer combines a doctrinal discussion with a theoretical analysis of the structure of the law in this area, undertaking a novel approach that critically re-evaluates existing case-law and writings. His approach critiques the arguments for a single expropriation norm based on custom, interpretation and arbitral precedents within international investment law, drawing also on generalist international legal thought, to show that both cosmopolitan and sovereigntist arguments are largely political, not legal. This innovative work will help scholars to understand the application of theory to investment law and help specialists in the field to improve their arguments.

The interaction of doctrine and theory in (international) legal scholarship

“…36 This looks like a nonsensical statement, but it can be explained by the orthodox drive to explain and guide the process of application: doctrine as 'Rechtsanwendungslehre'. 37 As mentioned above and as detailed (for international law) in other writings, 38 if the act of application by a legal organ, foremost the courts, is necessarily preceded by 'interpretation', if that process can and should be guided 39 and if the law to be applied by that organ can be given greater specificity through interpretation -if, in short, 'solutions' to legal problems are possible through reflective work rather than through authoritative decisions -then legal doctrine could potentially be involved in this work. This is certainly the mainstream view, both in Germany and among specialists of international law, for example Uwe Volkmann who defines Dogmatik as an 'aid to application for competent deciders in legal practice'; 40 it is seen as the processing of general norms in advance of individual decisions.…”

Beyond the res judicata doctrine: The nomomechanics of ICJ interpretation judgments

“…This is so because interpretation as text-cognition can only be performed by humans, not by legal organs. 106 An ICJ interpretation judgment is an authentic interpretation 107 in the strictest sense, leading to a 'replacement of the dispositif of the impeached judgment'; 108 'an interpretation judgment will itself amount to res judicata : : : notwithstanding its presumed "declaratory" quality'. 109 An authentic interpretation creates a later norm of the same sort as the norm which has been authentically 'interpreted', such as a later treaty explaining, with binding force, how a certain term in an earlier treaty is to be understoodor a later judgment, explaining, with binding force, how the terms 'vicinity' or 'promontory' are to be understood in an earlier judgment.…”