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International Investment Law and Arbitration: Commentary, Awards and other Materials 2nd Revised edition [Mīkstie vāki]

(The Chinese University of Hong Kong), (University College London), (National University of Singapore)
  • Formāts: Paperback / softback, 682 pages, height x width x depth: 243x170x32 mm, weight: 1310 g, Worked examples or Exercises
  • Izdošanas datums: 11-Mar-2021
  • Izdevniecība: Cambridge University Press
  • ISBN-10: 1108823203
  • ISBN-13: 9781108823203
  • Mīkstie vāki
  • Cena: 69,02 €
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  • Formāts: Paperback / softback, 682 pages, height x width x depth: 243x170x32 mm, weight: 1310 g, Worked examples or Exercises
  • Izdošanas datums: 11-Mar-2021
  • Izdevniecība: Cambridge University Press
  • ISBN-10: 1108823203
  • ISBN-13: 9781108823203
International investment law and arbitration is a rapidly evolving field, and can be difficult for students to acquire a firm understanding of, given the considerable number of published awards and legal writings. The first edition of this text, cited by courts in Singapore and Colombia, overcame this challenge by interweaving extracts from these arbitral decisions, treaties and scholarly works with concise, up-to-date and reliable commentary. Now fully updated and with a new chapter on arbitrators, the second edition retains this practical structure along with the carefully curated end-of-chapter questions and readings. The authors consider the new chapter an essential revision to the text, and a discussion which is indispensable to understanding the present calls for reform of investment arbitration. The coverage of the book has also been expanded, with the inclusion of over sixty new awards and judicial decisions, comprising both recent and well-established jurisprudence. This textbook will appeal to graduates studying international investment law and international arbitration, as well as being of interest to practitioners in this area.

A fully revised new edition which brings together awards and other key materials with up-to-date commentary explaining the past, current and potential developments in arbitral jurisprudence and current reform debates. Includes a new chapter critical to understanding calls for arbitration reform, and over 60 additional awards and judicial decisions.

Recenzijas

'This volume deftly introduces scholars and students to a sweeping range of issues in international investment law and arbitration, from the historical origins of investment protection to contemporary reform proposals in investor-State dispute settlement. Beautifully written, it covers each issue in meticulous detail, while enhancing understanding and practical lessons through the use of further materials from cases, treaties and literature.' Tania Voon, University of Melbourne 'This exhaustive and extensive international investment law coursebook is highly accessible and authoritative. The authors have elegantly presented each chapter taking into account the most significant developments and debates in the field. The entire volume is a rich and very accessible resource for teaching and research.' James Thuo Gathii, Loyola University, Chicago 'With expanded topics and new cases, as well as updated developments, this superb volume covers all one needs to know about the rapid progress of international investment law and arbitration. An indispensable reading for understanding the complexity and unpredictability of the subjects involved.' Yuwen Li, University of Rotterdam 'I had long been seeking a coursebook that managed in reasonable compass to address both international investment law and ISDS in a user-friendly style, when happily the first edition caught my attention. The book takes a sprawling subject and makes it manageable. I am delighted that the authors wasted no time in producing this welcome second edition.' George Bermann, Columbia University 'This book is a comprehensive study of international investment law and arbitration, covering from the historical origins of the field up to its current quest for systemic reform. The detailed analysis of the jurisprudence of investment tribunals and scholarly commentaries makes it a contribution of high academic level and the same time extremely useful for practitioners.' Gabriel Bottini, University of Buenos Aires 'This work covers all the stages of investment law, from its origins to developments in the last years, and approaches the topic in methodologically novel terms. It also addresses the latest trends in investment treaties, as well as the most recent decisions of arbitration tribunals. It will be a valuable tool for both students and specialists in the field.' Silvina Gonzalez Napolitano, University of Buenos Aires 'This book is insightful, thought provoking and rich in materials and commentaries alike. The authors have reviewed and selected useful sources and materials, while also providing instructive and intriguing commentary accessible for any reader, irrespective of their experience or prior knowledge. I commend the authors for the excellent work and timely update.' Loukas Mistelis, Queen Mary, London 'This second edition will be welcomed by all experts of international investment law, as well as students and lawyers from other disciplines for whom it will be an invaluable resource in building or deepening their knowledge of the field filed. The authors must be praised for combining a systematic approach to both substantive and procedural aspects, with the richness of their reference to case law.' Giorgio Sacerdoti, Bocconi University 'International Investment Law and Arbitration provides a comprehensive, accessible and up-to-date overview of investorstate arbitration. The book is likely to be appreciated by both students and specialists of international investment law.' Catherine Titi, CNRS-CERSA, University Paris II Panthéon-Assas

Papildus informācija

A new edition connecting extracts from arbitral decisions, treaties and scholarly works with concise, up-to-date and reliable commentary.
Foreword to the Second Edition xv
Preface to the First Edition xvi
Preface to the Second Edition xvii
Acknowledgments xxi
Table of Treaties and Other International Instruments, National Legislation, and Awards
xxii
List of Abbreviations
lvii
1 The Origins of Investment Protection and International Investment Law
1(36)
Chapter Outline
1(1)
Introduction
2(1)
1 Diplomatic Espousal and Mixed or Similar Commissions
2(8)
1.1 Diplomatic Espousal
2(2)
1.2 Diplomatic Espousal and Diplomatic Settlement
4(1)
1.3 Mixed International Commissions, National Commissions and Modern Claims Settlement
5(5)
2 Legal Uncertainty and the Conflicting Attempts to Restate the Law in the United Nations (1945-1970S)
10(12)
2.1 Legal Chaos
11(4)
2.2 Efforts at the United Nations
15(7)
3 The Creature of the `Internationalised' Contract
22(3)
4 Reaching for Treaty-Based Investor-State Arbitration
25(1)
5 ICSID, International Courts and Other Modern Institutions
26(5)
6 The Nature of Investment Treaty Arbitration and the Sources of the International Law on Foreign Investment
31(6)
Conclusion
35(1)
Questions
36(1)
Suggestions for Further Reading
36(1)
2 Investment Contracts and Internationalisation
37(20)
Chapter Outline
37(1)
Introduction
37(2)
1 Key Awards on Internationalisation
39(11)
2 The Backlash against Internationalisation
50(2)
3 Types of Investment Contract
52(5)
3.1 Natural Resource Concessions
52(1)
3.2 Public Service Concessions
53(1)
3.3 Build-Operate-and-Transfer (BOT) Contracts
54(1)
3.4 Public-Private Partnerships (PPPs)
54(1)
Conclusion
55(1)
Questions
55(1)
Suggestions for Further Reading
56(1)
3 The Metamorphosis of Investment Treaties
57(30)
Chapter Outline
57(1)
Introduction
57(2)
1 Creation: 1959-1990
59(7)
1.1 The Earliest Investment Treaties
61(2)
1.2 The ICSID Convention
63(1)
1.3 Draft Multilateral Investment Treaties
64(2)
2 Accelerated Growth: 1990S-2007
66(7)
2.1 Partial Convergence in Treaty Content
67(3)
2.2 Claims against Host States and Jurisprudence (In)constante
70(3)
3 "Resistance and Change': 2007 and Beyond
73(14)
3.1 Cracks in the Investment Treaty Regime
73(5)
3.2 Changes in the Investment Treaty Regime
78(7)
Conclusion
85(1)
Questions
86(1)
Suggestions for Further Reading
86(1)
4 Investment Dispute Settlement
87(28)
Chapter Outline
87(1)
Introduction
87(1)
1 Investment Arbitration as a Principal Means of Settlement Today
88(7)
1.1 An Unusual Feature in Investment Arbitration
88(1)
1.2 `Arbitration without Privity'
89(6)
2 Consent to Investment Arbitration
95(5)
2.1 Forms of Consent and Agreement to Investment Arbitration
95(2)
2.2 The Writing Requirement
97(3)
3 Electa una via (`Fork-in-the-Road') Clauses, `No U-Turn' Clauses and Other Procedural Preconditions
100(7)
3.1 Dispute Clauses and Procedural Preconditions
100(1)
3.2 Exhaustion of Local Remedies
101(3)
3.3 `Fork-in-the-Road' Clauses, `No U-Tum' Clauses and the Problem of Parallel Proceedings
104(3)
4 Contractual Forum Selection Clauses
107(1)
5 The Call for a Return to Adjudication, and Other Investment Dispute Settlement Bodies
108(1)
6 ICSID versus Ad Hoc Arbitration
109(6)
Conclusion
113(1)
Questions
114(1)
Suggestions for Further Reading
114(1)
5 Jurisdiction, Admissibility and Parallel Proceedings
115(38)
Chapter Outline
115(1)
Introduction
115(2)
1 `Jurisdiction and Admissibility'
117(10)
2 Consequences of the Distinction
127(5)
2.1 No Consequence
127(1)
2.2 Consequence for Post-Request Developments
127(1)
2.3 Consequence for Handling Objections
128(2)
2.4 Consequence for Stay
130(1)
2.5 Consequence for Challenges
130(2)
3 Procedure for Addressing Objections to Jurisdiction and Admissibility
132(6)
3.1 Bifurcation between Preliminary Objections and Merits
132(1)
3.2 Claims Manifestly without Legal Merit
133(5)
4 Objections to Jurisdiction and Admissibility
138(1)
4.1 Investor
136(1)
4.2 State
137(1)
4.3 Investment
137(1)
4.4 Consent and Other Issues
138(1)
5 Parallel Proceedings
139(14)
5.1 Consent by Disputing Parties
140(1)
5.2 Special Treaty Rules
141(1)
5.3 No Issue
142(1)
5.4 Sequential Proceedings: Collateral Estoppel/i?es Judicata
143(1)
5.5 Parallel Proceedings: Abuse of Process
144(4)
5.6 Remedies
148(2)
Conclusion
150(2)
Questions
152(1)
Suggestions for Further Reading
152(1)
6 Applicable Laws
153(20)
Chapter Outline
153(1)
Introduction
153(1)
1 Lex causae
154(11)
1.1 Sources of Laws
154(4)
1.2 Interplay of Laws
158(1)
1.2.1 Configuration 1 - Matching Each Head of Claim to Its Governing Law
159(1)
1.2.2 Configuration 2 - Renvoi to National Law
160(1)
1.2.3 Configuration 3 - Composite National-International Law
161(3)
1.3 Arbitral Mandate and Choice-of-Laws
164(1)
2 Lex arbitri
165(4)
3 Lex loci arbitri
169(4)
Conclusion
171(1)
Questions
171(1)
Suggestions for Further Reading
172(1)
7 Arbitrators
173(60)
Chapter Outline
173(1)
Introduction
173(1)
1 Who Are the Arbitrators?
174(5)
2 Appointment of Arbitrators
179(10)
2.1 ICSID
180(5)
2.2 UNCrTRAL/Permanent Court of Arbitration
185(4)
3 Challenge Brought against Arbitrators: Procedure
189(10)
3.1 ICSID
189(8)
3.2 Non-ICSID
197(2)
4 Challenge Brought against Arbitrators: Substance
199(9)
4.1 ICSID
199(6)
4.2 Non-ICSID
205(3)
5 Challenge Brought against Arbitrators: Issues
208(25)
5.1 Arbitrators and Parties
208(9)
5.2 Arbitrators and Deja Vu
217(6)
5.3 Arbitrators and Double-Hatting
223(7)
Conclusion
230(1)
Questions
231(1)
Suggestions for Further Reading
232(1)
8 Evidence
233(17)
Chapter Outline
233(1)
Introduction
233(1)
1 The Burden of Proof
234(8)
1.1 Onus Probandi Actori Incumbit
234(1)
1.2 The `Vanishing' Burden
235(1)
1.2.1 The RosInvestCo Arbitration
236(2)
1.2.2 The Hulley, Yukos and Veteran Petroleum Arbitrations
238(2)
1.3 The `Shifting' Burden
240(2)
2 The Standard of Proof
242(8)
2.1 Balance of Probabilities
243(1)
2.2 Circumstantial Evidence
243(3)
2.3 No Evidence
246(2)
Conclusion
248(1)
Questions
249(1)
Suggestions for Further Reading
249(1)
9 Provisional Measures
250(26)
Chapter Outline
250(1)
Introduction
251(1)
1 Interim Measures and Sovereign Respondents
252(3)
2 Recourse to National Courts and the Power of ICSID Tribunals
255(3)
3 Other Types of Relief
258(5)
4 The Test Applied by Tribunals
263(13)
Conclusion
274(1)
Questions
275(1)
Suggestions for Further Reading
275(1)
10 Protected Investments
276(23)
Chapter Outline
276(1)
Introduction
276(1)
1 The Subjective Meaning of Protected Investments
277(7)
2 The Objective Meaning of Protected Investments
284(6)
2.1 The ICSID Tests
285(3)
2.2 The Non-ICSID Test
288(2)
3 The Dual Meaning of Protected Investments
290(9)
3.1 Binding Objective Criteria
290(3)
3.2 Illustrative Objective Criteria
293(3)
Conclusion
296(1)
Questions
297(1)
Suggestions for Further Reading
298(1)
11 Protected Investors
299(31)
Chapter Outline
299(1)
Introduction
299(2)
1 Nationality-Based Eligibility for Protection
301(5)
1.1 Form - Critical Date(s) of Nationality Possession
302(1)
1.2 Substance - Circumstances of Nationality Acquisition
303(1)
1.2.1 `Round-Tripping'
303(2)
1.2.2 Litigation-Oriented Nationality Acquisition
305(1)
2 Individual Investors
306(9)
2.1 Authentication of Nationality
307(1)
2.2 Dual Nationality and Permanent Residents
308(7)
3 Corporate Investors
315(8)
3.1 Place of Incorporation
316(4)
3.2 Foreign Control
320(3)
4 `Divisible" Investors
323(7)
Conclusion
327(1)
Questions
328(1)
Suggestions for Further Reading
329(1)
12 Fair and Equitable Treatment, and Full Protection and Security
330(37)
Chapter Outline
330(1)
Introduction
330(1)
1 Relationship with an International Minimum Standard of Treatment
331(4)
1.1 The `Minimum Standard' of Treatment
331(1)
1.2 Fair and Equitable Treatment
332(2)
1.3 Full Protection and Security
334(1)
2 The Heads of Claim under FET and FPS, Their Evolution and Interrelationship
335(20)
2.1 Heads of Claim under FET
335(1)
2.1.1 Arbitrary and Discriminatory Treatment
335(2)
2.1.2 Violation of Due Process and Lack of Transparency
337(1)
2.1.3 Is There a Requirement of `Bad Faith' on the Part of the Host State?
338(2)
2.1.4 Recent Developments in the Scope of the FET Rule: Protecting Investors' Legitimate Expectations, and the Stability of the Business and Legal Environment Surrounding the Investment
340(10)
2.2 Full Protection and Security
350(3)
2.3 Interrelationship of FET and FPS beyond Physical Security
353(2)
3 `Narrowing Down' FET: Some Recent Examples of Treaty Clauses
355(2)
4 `Qualified' and `Unqualified' Treaty Clauses, and the Interaction of Treaty and Custom
357(10)
4.1 NAPTA and the `North American' Model of `Qualified' Treaty Clauses
357(3)
4.2 `Unqualified' FET Treaty Clauses and Their Relationship with International Custom
360(4)
Conclusion
364(2)
Questions
366(1)
Suggestions for Further Reading
366(1)
13 Contingent Standards: National Treatment and Most-Favoured-Nation Treatment
367(32)
Chapter Outline
367(1)
Introduction
367(2)
1 Nine Lives of National Treatment
369(4)
1.1 National Treatment
369(1)
1.2 Expropriation
370(1)
1.3 Fair and Equitable Treatment
371(1)
1.4 Other Examples
372(1)
2 Interpretation and Application of National Treatment
373(11)
2.1 Like Circumstances
374(5)
2.2 Distinctions in Treatment
379(2)
2.3 Justification
381(3)
3 Most-Favoured-Nation Treatment and Primary Obligations
384(4)
4 Most-Favoured-Nation Treatment and International Dispute Settlement
388(11)
4.1 Applicable, with Public Policy Exceptions
390(2)
4.2 Inapplicable, Unless Explicitly Provided For
392(1)
4.3 Applicable to Admissibility, but Not to Jurisdiction
393(1)
4.4 Applicable to Objectively Unfavourable Treatment
393(1)
4.5 Recent Developments
394(2)
Conclusion
396(1)
Questions
397(1)
Suggestions for Further Reading
398(1)
14 Expropriation
399(33)
Chapter Outline
399(1)
Introduction
399(1)
1 The Object of Expropriation
400(10)
1.1 Property Rights
401(1)
1.2 Contractual Rights
402(1)
1.2.1 Contract as Property
403(2)
1.2.2 Sovereign Contractual Interference
405(3)
1.3 Shareholder Rights
408(2)
2 The Existence of Expropriation
410(4)
2.1 Direct Expropriation
411(1)
2.2 Indirect Expropriation
412(2)
3 The Legality of Expropriation
414(9)
3.1 Public Purpose
414(1)
3.2 Compensation
415(1)
3.2.1 The Rule of Compensation for Expropriation
416(2)
3.2.2 The First Exception to the Rule of Compensation for Expropriation: Investment Valued at Nil
418(1)
3.2.3 The Second Exception to the Rule of Compensation for Expropriation: Regulatory Taking
418(1)
3.3 Due Process
419(1)
3.4 Circumstances Precluding Wrongfulness and Non-Precluded Measures
420(3)
4 Judicial Expropriation
423(9)
Conclusion
429(2)
Questions
431(1)
Suggestions for Further Reading
431(1)
15 Umbrella Clauses
432(26)
Chapter Outline
432(1)
Introduction
432(1)
1 The Umbrella Clause
433(2)
2 The Awards
435(18)
2.1 SGS v. Pakistan
435(4)
2.2 SGS v. Philippines
439(1)
2.3 A Matter of Treaty Construction?
440(6)
2.4 The Spectre of `the Two SGS Arbitrations' Lurks
446(3)
2.5 Distinguishing Treaty Law from Contract Law
449(3)
2.6 Forum Selection Clauses
452(1)
3 Examples of Umbrella Clauses
453(5)
Conclusion
456(1)
Questions
457(1)
Suggestions for Further Reading
457(1)
16 Defences
458(32)
Chapter Outline
458(1)
Introduction
458(2)
1 Concepts of Defences
460(4)
2 Defences in Obligations
464(3)
3 Defences in Exceptions
467(10)
3.1 Non-Precluded-Measures Clause
467(6)
3.2 Modern Exceptions
473(4)
4 Defences in Circumstances Precluding Wrongfulness
477(13)
4.1 Consent
478(2)
4.2 Countermeasures
480(3)
4.3 Necessity
483(3)
4.4 Consequences
486(1)
Conclusion
487(1)
Questions
488(1)
Suggestions for Further Reading
488(2)
17 Remedies
490(23)
Chapter Outline
490(1)
Introduction
490(1)
1 The Principle of Full Reparation for Internationally Wrongful Acts
491(1)
2 Compensation and Restitution
492(6)
2.1 Compensation for Expropriation
493(2)
2.2 Compensation for Violations of Other Treaty Standards
495(2)
2.3 Moral and Punitive Damages
497(1)
3 Methods of Valuation
498(12)
3.1 Discounted Cash Flow (DCF)
499(7)
3.2 Damnum Emergens Plus Lucrum Cessans (DELC)
506(4)
4 Interest
510(3)
Conclusion
511(1)
Questions
512(1)
Suggestions for Further Reading
512(1)
18 Costs and Legal Fees
513(23)
Chapter Outline
513(1)
Introduction
513(1)
1 The Question of Costs in the Context of Investment Arbitration
514(1)
2 Types of Costs
515(3)
2.1 `Arbitration Costs' or `Costs of the Proceedings'
515(2)
2.2 `Legal' or `Party' Costs
517(1)
3 Cost Allocation by the Tribunal
518(4)
3.1 UNCITRAL and ICSID Rules
518(1)
3.2 Tribunal Considerations
519(3)
4 The `Loser-Pays' Principle, or `Costs after the Event'
522(7)
5 Security for Costs
529(7)
Conclusion
533(2)
Questions
535(1)
Suggestions for Further Reading
535(1)
19 Challenging and Enforcing Awards, and the Question of Foreign State Immunities
536(39)
Chapter Outline
536(1)
Introduction
536(1)
1 ICSID and `Non-ICSID' Awards
537(1)
2 `Non-ICSID' Arbitration
538(4)
3 ICSID Arbitration
542(14)
4 Foreign State Immunity, Act of State and Non-Justiciability
556(16)
4.1 Foreign State Immunity
556(7)
4.2 Pleas of Act of State and Non-Justiciability
563(9)
5 Attachment of Assets: The `Final Refuge'
572(3)
Conclusion
573(1)
Questions
574(1)
Suggestions for Further Reading
574(1)
20 New Directions in International Investment Law and Arbitration
575(42)
Chapter Outline
575(1)
Introduction
575(2)
1 The Backlash
577(17)
1.1 The Backlash to NAFTA and in the United States, 2001-2004
577(4)
1.2 The Global Backlash Begins in Earnest 2007 to Date
581(8)
1.3 The Treaty Terminations Begin
589(5)
2 The New Treaty Clauses
594(10)
2.1 Reform of Treaty Substantive Rules in Recent Treaties
594(1)
2.1.1 Reform of the FET Rule
594(2)
2.1.2 Reform of the Expropriation Rule
596(2)
2.1.3 Other Innovations in Substantive Standards of Treaty Protection
598(1)
2.1.4 Enter the United States-Mexico-Canada Agreement
598(2)
2.2 Procedural Innovations
600(4)
3 The European Proposal for a Multilateral Investment Court
604(13)
Conclusion
615(1)
Questions
615(1)
Suggestions for Further Reading
616(1)
Index 617
C. L. Lim is the Choh-Ming Li Professor of Law at the Chinese University of Hong Kong, a visiting professor at King's College London and Honorary Senior Fellow of the British Institute of International and Comparative Law. He practises as a barrister with Keating Chambers, London. Lim worked previously as international law counsel for a government as well as at the United Nations Compensation Commission in Geneva, and he served three terms on a committee advising Hong Kong's Commerce Secretary. He is currently participating in the UNCITRAL WGIII deliberations in which he represents an observer entity. Jean Ho is Associate Professor of Law at the National University of Singapore. She previously practised international investment law and arbitration at Shearman and Sterling LLP and now acts as counsel in investorState disputes. She is a Member of the BIICL's Investment Treaty Forum, a Member of the Executive Council of the Asian Society of International Law, a Member of the Editorial Advisory Board of the Asian Journal of International Arbitration, and an Expert on the UNIDROIT Working Group on Agricultural Land Investment Contracts. Martinis Paparinskis is Reader in Public International Law at University College London, Faculty of Laws. He is the Book Review Editor of Journal of World Investment and Trade, a member of the Panels of Arbitrators and of Conciliators of the International Centre for Settlement of Investment Disputes, and a member of the Permanent Court of Arbitration, and a conciliator of the OSCE Court of Conciliation and Arbitration.