The multilateralization of international investment law /

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Bibliographic Details
Author / Creator:	Schill, Stephan (Stephan W.)
Imprint:	Cambridge, UK ; New York : Cambridge University Press, 2009.
Description:	xxxvii, 451 p. ; 23 cm.
Language:	English
Series:	International trade and economic law Cambridge international trade and economic law.
Subject:	Investments, Foreign -- Law and legislation. Investments, Foreign (International law) International commercial arbitration. International commercial arbitration. Investments, Foreign (International law) Investments, Foreign -- Law and legislation.
Format:	Print Book
URL for this record:	http://pi.lib.uchicago.edu/1001/cat/bib/7842617

Hidden Bibliographic Details
ISBN:	9780521762366 (hardback : alk. paper) 0521762367 (hardback : alk. paper)
Notes:	Includes bibliographical references and index.

Table of Contents:

Preface
List of figures
Table of treaties, draft instruments, and related documents
Table of cases
I. Introduction: globalization and international investment law
A. International investment law as a building block of the global economy
B. International investment law, economic ideology and hegemony
C. The choice between bilateralism and multilateralism
D. Investment treaties - instruments of bilateralism or elements of a multilateral system?
E. The multilateralization of international investment law on the basis of bilateral treaties
F. The course of the argument
II. The dynamics of multilateralism and bilateralism in international investment relations
A. The state of international investment law until 1945
1. Customary international law
2. Treaty rules
(a). Treaties of friendship, commerce, and navigation
(b). Treaties establishing equality of opportunity in certain territories
B. The failures of multilateralism I: 1945-1974
1. The Havana Charter - 1948
2. OECD Draft Convention on the Protection of Foreign Property - 1967
C. The rise of bilateral and regional investment treaties
D. Limited success of multilateralism: ICSID and MIGA
1. The International Centre for Settlement of Investment Disputes (ICSID)
2. The Multilateral Investment Guarantee Agency (MIGA)
E. The failures of multilateralism II: 1990-2004
1. Earlier attempts to introduce investment issues into the GATT/WTO
2. The OECD Multilateral Agreement on Investment (MAI) - 1998
3. Multilateral investment rules in the WTO: Doha - Cancun - and beyond
F. Conclusion
III. Treaty negotiation and multilateralization of international investment law
A. The standard content of bilateral investment treaties
1. The scope of application of BITs
2. Substantive investor rights conferred under BITs
(a). Non-discrimination, national treatment and MFN treatment
(b). Fair and equitable treatment and full protection and security
(c). Protection against direct and indirect expropriation
(d). Umbrella clauses
(e). Capital transfer provisions
3. Dispute settlement mechanisms under BITs
B. The dynamics of treaty negotiation: the creation of homogeneous treaty texts
1. The entrenchment of bilateralism in multilateral settings
(a). The use of model treaties
(b). Multilateral draft conventions as guidance for model BITs
(c). Multilateral treaties as frameworks for BITs
2. Uniformity of investment rules and transaction costs
3. Uniformity of investment rules and North-South hegemony
C. Multilateralism and the specific interest in uniform investment rules
1. Investment cooperation, comparative advantage and competition in a global market
2. Multilateral investment rules and negative externalities
3. Multilateral investment rules and international relations
D. Conclusion
IV. Multilateralization through most-favored-nation treatment
A. Historical and doctrinal background of MFN clauses
1. The structure of MFN clauses
2. The historical development of MFN clauses
3. Codification of MFN clauses by the International Law Commission
B. Multilateralizing substantive investment protection
1. Importing more favorable investor rights
2. Limits to the operation of MFN clauses
(a). Explicit restrictions of the scope of application of the MFN clauses
(b). Restrictions to MFN clauses based on the scope of application of the basic treaty
3. Circumventing restrictions of MFN treatment
C. Multilateralizing procedural investment protection
1. Circumventing admissibility-related access restrictions to investor-State dispute settlement
(a). Shortening waiting periods: Maffezini v. Spain
(b). Multilateralizing benefits without extending disadvantages: cherry-picking in Siemens v. Argentina
(c). Subsequent arbitral jurisprudence
2. Struggling to base jurisdiction on MFN clauses
(a). Salini v. Jordan
(b). Plama v. Bulgaria
(c). Subsequent jurisprudence
(d). Acceptance of basing jurisdiction on MFN clauses: RosInvest Co v. Russia
D. Multilaterilaizing arbitral jurisdiction
1. MFN clauses and treaty interpretation
2. International jurisprudence supporting a broad application of MFN clauses
3. The object and purpose of investment treaties
4. Equal competition and investor-State dispute settlement
5. Jurisdiction and compliance with treaty obligations
6. Must the State's consent to arbitrate be "clear and unambiguous"?
7. MFN clauses and treaty-shopping
8. MFN treatment and public policy restrictions
E. Conclusion: MFN treatment - securing the future of multilateralism
V. Multilateralaization and corporate structuring
A. Shareholder protection in international investment law
1. Companies incorporated in the host State
2. Minority shareholder protection
3. Indirect investments in multilevel corporate structures
4. The scope of protection of shareholders
5. Multilateralization of investment protection through shareholder protection
B. "Hiding behind the corporate veil": corporate structuring and corporate nationality
1. Defining corporate nationality
2. Assuming third-country nationality
3. Dual nationals and corporate structuring
4. Protecting host State reinvestments
5. Corporate structuring and treaty-shopping
C. Conclusion
VI. Multilateral enforcement of international investment law
A. Investment treaty arbitration as a compliance mechanism
1. Bilateralism in traditional international law compliance structures
(a). The mediation of foreign investors through an inter-State prism
(b). Structural insufficiencies of diplomatic protection
(c). Distinction between State and investor interests
2. The empowerment of investment tribunals
(a). The investor's right to seek damages
(b). The limited influence of State on the arbitral process
(c). Limited review of arbitral awards
(d). Recognition and enforcement of arbitral awards
3. Multilateralizing investment protection through investor-State arbitration
B. Investment treaty arbitration as a mechanism for resolving uncertainty in international investment relations
1. The vagueness of investor rights
2. The dissolution of rule making and rule application
3. NAFTA digression: the effectiveness of notes of interpretation
(a). The impending threat of institutional conflict: Pope & Talbot v. Canada
(b). Post-Pope & Talbot: dynamic adjustments of customary international law
C. Conclusion
VII. Multilateralization through interpretation: producing and reproducing coherence in investment jurisprudence
A. The potential for inconsistencies in investment treaty arbitration
1. Incoherence and fragmentation in international dispute resolution
2. Fragmentation in international investment law: multiplicity of sources, multiplicity of proceedings
3. Arbitration: an embryonic institutional design
4. The non-existence of stare decisis in international investment law
5. Conclusion
B. Interpretation methods and the unity of the system's sources
1. Bilateralism and multilateralism in treaty interpretation
(a). Bilateralism in treaty interpretation
(b). Multilateralism in treaty interpretation
2. Multilateralization through cross-treaty interpretation in investment arbitration
(a). The use of third-country BITs of the contracting States
(b). The use of wholly unrelated third-country BITs
3. The use of model treaties in interpretation
4. Teleological interpretation of BITs
5. Conclusion
C. The system's operative unity: the emergence of a system of de facto precedent in investment treaty arbitration
1. The functions of precedent in concurring awards
(a). Analogizing with earlier decisions
(b). Precedent as a means of clarification of BIT provisions
(c). Abbreviation of reasoning
(d). The creation of de facto stare decisis: precedent and standard setting
(e). Transfer of the law-making function from States to tribunals
(f). Conclusion
2. Unity of investment law and conflicting decisions
(a). Cases of open dissent
(b). Distinction of facts as an instrument to uphold unity
(c). Reconciling conflicts through conflict rules
(d). Unity in investment jurisprudence by concealing dissent
3. Conclusion
D. Conclusion: the emergence of a system of international investment law through interpretation
VIII. Conclusion: Multilateralization - universalization - constitutionalization
A. Summary: the multilateralization of international investment law
B. Toward a universal regime of investment protection
C. The constitutional function of international investment law
Bibliography
Index

The multilateralization of international investment law /

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