Investment treaty arbitration has a hybrid nature combining public international law (as regards its substance) with elements of international commercial arbitration (mainly as regards procedure). However, in essence and function it deals with a special, internationalized form of judicial review of governmental conduct that is more akin to the judicial control of governmental action provided for by national administrative and constitutional law than to either classic inter-state dispute resolution or international commercial arbitration.
This has been recognized in some academic writing and several awards, where reference to national administrative law concepts and principles of international law-based judicial review of governmental action, such as international trade or human rights law, is used to help specify and apply the open-ended concepts of investment treaties. In-depth conceptualization is however often lacking. The current study is the first, pioneering effort to bring these under-developed ad hoc references to comparative and international administrative law concepts into a deeper theoretic and systematic framework.
The book thus intends to develop a 'bridge' between treaty-based international investment arbitration and comparative administrative law on both a theoretical and practical level. The major obligations in investment treaties (indirect expropriation, fair and equitable treatment, national treatment, umbrella/sanctity of contract clause) and major procedural principles will be compared with their counterpart in comparative public law, both on the domestic as well as international level. That 'bridge' will allow international investment law to benefit from the comparative public law experience, which could enhance its legitimacy, its political acceptance, and its ability to develop more finely-tuned interpretations of central treaty obligations.
iInternational Investment Law and Comparative Public Lawr is timely, well structured, and thoroughly researched. It is impossible to do full justice to this important collection in this short review; it suffices to say that it constitutes a valuable contribution to legal scholarship and illustrates the extent to which convergence between international investment law and comparative public law is occurring. Valentina Vadi, Journal of International Economic Law This work is clearly ahead of the curve, measured by the very fact that highly sensitive ongoing claims (including Philip Morriss ongoing investment treaty challenge against Australian law mandating plain packaging for cigarettes) are characterized by a request for primary remedies such as cessation and discontinuance. Jurgen Kurtz, American Journal of International Law Schill's collection offers a rich set of comparative insights. Jurgen Kurtz, American Journal of International Law Investment arbitration has its procedural roots in commercial arbitration. Yet international investment law has strong affinities to public law: its primary function is to provide a check on the host State's power to interfere with foreign investments. Therefore, in functional terms investment arbitration may be seen as akin to administrative and constitutional judicial review. The essays contained in this volume explore the public law origin and background of international investment law from a comparative perspective. The comparison includes national legal systems as well as international subsystems such as human rights law, European law and WTO law. This book closes an important gap in the rapidly growing literature on international investment law. The approach taken by its editor makes a valuable contribution to a better understanding and more refined interpretation of treaties for the protection of foreign investments. Christoph Schreuer The most important book for investment arbitration in a decade. Arbitrators have been adrift in a sea of discretion as they attempt to fill out the content of vague standards. This book provides guidance and a method that will shape the arguments of counsel and provide a reasoned basis for decision. A critical step in saving investment arbitration has been taken. David D. Caron, University of California at Berkeley ...I am confident it will spark debate in many areas of international investment law and provide somewhat of a blueprint for subsequent comparative analysis that aim at informing public international law. European Journal of International Law
Number Of Pages: 920
Published: 10th December 2010
Dimensions (cm): 24.8 x 17.7 x 5.45
Weight (kg): 1.686