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Principles of International Investment Law

ISBN-10: 0199651809
ISBN-13: 9780199651801
Edition: 2nd 2012
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Book details

Edition: 2nd
Copyright year: 2012
Publisher: Oxford University Press
Publication date: 11/15/2012
Binding: Paperback
Pages: 530
Size: 6.50" wide x 10.00" long x 1.00" tall
Weight: 1.584
Language: English

Christoph Schreuer is a graduate of the Universities of Vienna, Cambridge and Yale. Over an academic career spanning more than forty years, he has published numerous articles and several books in the field of international law. He has covered such diverse areas as human rights, adjudication by national and international courts and tribunals, sovereign immunity, the law of international organizations, the sources of international law and the future of sovereignty.

Foreword to the Second Edition
Table of Cases
Table of Treaties, Conventions, Resolutions, and Rules
List of Abbreviations
History, Sources, and Nature of International Investment Law
The history of international investment law
Early developments
The emergence of an international minimum standard
Developments after the Second World War
The evolution of investment protection treaties
The quest for a multilateral framework
Recent developments
The sources of international investment law
The ICSID Convention
Bilateral investment treaties
Sectoral and regional treaties: the Energy Charter Treaty and NAFTA
Customary international law
General principles of law
Unilateral statements
Case law
The nature of international investment law
Investment law and trade law
Balancing duties and benefits
The investor's perspective: a long-term risk
The host state's perspective: attracting foreign investment
International investment law and sovereign regulation
International investment law and good governance
Obligations, for investors
Interpretation and Application of Investment Treaties
Interpreting investment treaties
Methods of treaty interpretation
Travaux pr�paratoires
Interpretative statements
The authority of 'precedents'
Towards a greater uniformity of interpretation
Application of investment treaties in time
Inter-temporal application of treaties in general
Different inter-temporal rules for jurisdiction and substance
The date relevant to determine jurisdiction
Relevant dates under the ICSID Convention
Inter-temporal rules in other treaties
Investors and Investments
Investors
Private foreign investors
Nationality of individuals
Nationality of corporations
Article 25(2)(b) of the ICSID Convention: agreement to treat a local company as a foreign national because of foreign control
Nationality planning
Denial of benefits
Shareholders as investors
Investments
Terminology and concept
Investments as complex, interrelated operations
Definitions in investment protection treaties
'Investment' in Article 25 of the ICSID Convention
Case law
Towards a new synthesis?
Investment 'in the territory of the host state'
Investment Contracts
Types of investments contracts
Applicable law
Stabilization clauses
Renegotiation/adaptation
Admission and Establishment
The move towards economic liberalism
Treaty models of admission
Performance requirements
Non-compliance by investor with host state law and international public policy
Expropriation
The right to expropriate
The three branches of the law
The legality of the expropriation
Direct and indirect expropriation
Broad formulae: their substance and evolution
Judicial and arbitral practices some illustrative cases
Effect or intention?
Legitimate expectations
Control and expropriation
Partial expropriation
General regulatory measures
Duration of a measure
Creeping expropriation
Expropriation of contractual rights
Standards of Protection
Fair and equitable treatment
History of the concept
Heterogeneity of treaty language
Nature and function
Fair and equitable treatment and customary International law
The evolution of the fair and equitable treatment standard
Methodological issues
Attempts to define fair and equitable treatment
Specific applications of the fair and equitable treatment standard
Stability and the protection of the investor's legitimate expectations
Transparency
Compliance with contractual obligations
Procedural propriety and due process
Good faith
Freedom from coercion and harassment
Conclusion
Full protection and security
Concept
Standard of liability
Protection against physical violence and harassment
Legal protection
Relationship to customary international law
The umbrella clause
Meaning and origin
Effective application of umbrella clauses
Restrictive application of umbrella clauses
Umbrella clauses and privity of contract
Umbrella clauses and unilateral acts
Access to justice, fair procedure, and denial of justice
Emergency, necessity, armed conflicts, and force majeure
Customary international law: civil violence, military action
The ILC Articles on State Responsibility
Necessity
Force majeure
Treaty law
Preservation of rights
Arbitrary or discriminatory measures
Arbitrary measures
The meaning of arbitrary
Adverse intention
Relationship to fair and equitable treatment and to customary international law
Discriminatory measures
The basis of comparison
Discriminatory intent
National treatment
General meaning
Application
The basis of comparison: 'like'
The existence of a differentiation
Is there a justification for the differentiation?
The relevance of discriminator intent
The relevance of WTO case law
Mast-favoured-nation treatment
Introduction
Variations of MFN clauses
Method of interpretation
Invoking substantive rights
Current state of the law
Transfer of funds
State Responsibility and Attribution
Organs, provinces, and municipalities
State organs
Provinces and municipalities
State entities
The role of state entities
Structure, function, and control
Judicial practice on attribution
State responsibility for failure to protect
Party status for constituent subdivisions or agencies under the ICSID Convention
Political Risk Insurance
Settling Investment Disputes
Stare v state disputes
Diplomatic protection
Direct disputes between states
Investor v state disputes
The limited usefulness of domestic courts
Arbitration and conciliation
Arbitration institutions and regimes
ICSID
ICSID Additional Facility
Non-ICSID investment arbitration
The International Chamber of Commerce
The London Court of International Arbitration
The UNCITRAL Rules
The Iran-United States Claims Tribunal
The Permanent Court of Arbitration
The subject matter of the dispute (jurisdiction ratione materiae)
The dispute
The legal nature of the dispute
The directness of the dispute in relation to the investment
The investment
The parties to the dispute (jurisdication ratione personae)
The hast state
The investor
The investor's nationality
The significance of the Additional Facility
Consent to arbitration
Consent by direct agreement
Consent through hose state legislation
Consent through bilateral investment treaties
Consent through multilateral treaties
The scope of consent
The interpretation of consent
Conditions for the institution of proceedings
The requirement to resort to domestic courts
The fork in the road
An attempt at amicable settlement
The applicability of MFN clauses to dispute settlement
The selection of domestic courts in contracts
Procedure
Arbitration Rules
Institution of proceeding
The tribunal and its composition
Provisional measures
Summary procedure
Written and oral procedure
The award
Transparency
Applicable law
Remedies
Restitution and satisfaction
Damages for an illegal act
Compensation for expropriation
Interest
Costs
Challenge and review of decisions
Review in non-ICSID arbitration
Annulment under the ICSID Convention
Excess of powers
Serious departure from a fundamental rule of procedure
Failure to state reasons
Supplementation and rectification under the ICSID Convention
Interpretation under the ICSID Convention
Revision under the ICSID Convention
Enforcement of awards
Annexes ICSID Convention
The Energy Charter Treaty (excerpts)
North American Free Trade Agreement (Chapter Eleven)
Chinese Model BIT (2003)
German Model Treaty (2008)
UK Model BIT
US Model BIT (2012)
Index

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