The Multilaterization of International Investment Law
Hardcover | 20 August 2009
At a Glance
490 Pages
22.86 x 15.24 x 3.18
Hardcover
$283.64
or 4 interest-free payments of $70.91 with
orAims to ship in 7 to 10 business days
Industry Reviews
'Stephan Schill's book, The Multilateralization of International Investment Law, stands apart from the rest of the literature on international investment law which has burgeoned in the past few years. In contrast to most publications on the market, this volume, adapted from the author's Ph.D. thesis, does not attempt to summarize and systematize the developments in arbitral practice. Instead, it reveals an important and previously unexplored dimension of the investment treaty phenomenon by presenting an original vision of the landscape formed by more than 3,000 international investment agreements (IIAs). The author advances and substantiates the seemingly counter-intuitive thesis that these predominantly bilateral instruments do not result in chaotic fragmentation but, taken together, 'function analogously to a truly multilateral system'.' Sergey Ripinsky, United Nations Conference on Trade and Development, Geneva
'A distinctive feature of the book is that it is not limited to traditional legal analysis, but is grounded in the broader social, economic, and ideological reality. In doing so, the author has relied upon an impressive range of literature from related fields such as law and economics and international relations. As a result, he manages cleverly and harmoniously to combine a big-picture view with a detailed analysis of BIT provisions and arbitral practice. The drafting style is exceptionally clear ... this wide-ranging analysis offers longer-term rewards by significantly advancing the understanding of the foundations, rationales, structure, and operation of the current system of international investment law.' globallawbooks.org
'In a field where much of the secondary literature is merely descriptive or reactive (or both), Schill's deep consideration of the issues offers a fresh perspective, and it is to be warmly welcomed into the literature.' Chester Brown, Australian International Law Journal
Preface | p. xiii |
List of figures | p. xvii |
Table of treaties, draft instruments, and related documents | p. xviii |
Table of cases | p. xxv |
Introduction: globalization and international investment law | p. 1 |
International investment law as a building block of the global economy | p. 3 |
International investment law, economic ideology and hegemony | p. 6 |
The choice between bilateralism and multilateralism | p. 8 |
Investment treaties - instruments of bilateralism or elements of a multilateral system? | p. 11 |
The multilateralization of international investment law on the basis of bilateral treaties | p. 15 |
The course of the argument | p. 19 |
The dynamics of multilateralism and bilateralism in international investment relations | p. 23 |
The state of international investment law until 1945 | p. 25 |
Customary international law | p. 25 |
Treaty rules | p. 28 |
Treaties of friendship, commerce, and navigation | p. 29 |
Treaties establishing equality of opportunity in certain territories | p. 30 |
The failures of multilateralism I: 1945-1974 | p. 31 |
The Havana Charter - 1948 | p. 32 |
OECD Draft Convention on the Protection of Foreign Property - 1967 | p. 35 |
The rise of bilateral and regional investment treaties | p. 40 |
Limited success of multilateralism: ICSID and MIGA | p. 44 |
The International Centre for Settlement of Investment Disputes (ICSID) | p. 45 |
The Multilateral Investment Guarantee Agency (MIGA) | p. 47 |
The failures of multilateralism II: 1990-2004 | p. 49 |
Earlier attempts to introduce investment issues into the GATT/WTO | p. 50 |
The OECD Multilateral Agreement on Investment (MAI) - 1998 | p. 53 |
Multilateral investment rules in the WTO: Doha - Cancun - and beyond | p. 58 |
Conclusion | p. 60 |
Treaty negotiation and multilateralization of international investment law | p. 65 |
The standard content of bilateral investment treaties | p. 70 |
The scope of application of BITs | p. 71 |
Substantive investor rights conferred under BITs | p. 74 |
Non-discrimination, national treatment and MFN treatment | p. 76 |
Fair and equitable treatment and full protection and security | p. 78 |
Protection against direct and indirect expropriation | p. 81 |
Umbrella clauses | p. 84 |
Capital transfer provisions | p. 86 |
Dispute settlement mechanisms under BITs | p. 87 |
The dynamics of treaty negotiation: the creation of homogeneous treaty texts | p. 88 |
The entrenchment of bilateralism in multilateral settings | p. 89 |
The use of model treaties | p. 90 |
Multilateral draft conventions as guidance for model BITs | p. 91 |
Multilateral treaties as frameworks for BITs | p. 92 |
Uniformity of investment rules and transaction costs | p. 93 |
Uniformity of investment rules and North-South hegemony | p. 98 |
Multilateralism and the specific interest in uniform investment rules | p. 106 |
Investment cooperation, comparative advantage and competition in a global market | p. 108 |
Multilateral investment rules and negative externalities | p. 112 |
Multilateral investment rules and international relations | p. 115 |
Conclusion | p. 117 |
Multilateralization through most-favored-nation treatment | p. 121 |
Historical and doctrinal background of MFN clauses | p. 126 |
The structure of MFN clauses | p. 126 |
The historical development of MFN clauses | p. 129 |
Codification of MFN clauses by the International Law Commission | p. 134 |
Multilateralizing substantive investment protection | p. 139 |
Importing more favorable investor rights | p. 140 |
Limits to the operation of MFN clauses | p. 142 |
Explicit restrictions of the scope of application of the MFN clauses | p. 142 |
Restrictions to MFN clauses based on the scope of application of the basic treaty | p. 144 |
Circumventing restrictions of MFN treatment | p. 146 |
Multilateralizing procedural investment protection | p. 151 |
Circumventing admissibility-related access restrictions to investor-State dispute settlement | p. 152 |
Shortening waiting periods: Maffezini v. Spain | p. 153 |
Multilateralizing benefits without extending disadvantages: cherry-picking in Siemens v. Argentina | p. 156 |
Subsequent arbitral jurisprudence | p. 160 |
Struggling to base jurisdiction on MFN clauses | p. 163 |
Salini v. Jordan | p. 165 |
Plama v. Bulgaria | p. 166 |
Subsequent jurisprudence | p. 168 |
Acceptance of basing jurisdiction on MFN clauses: RosInvest Co v. Russia | p. 172 |
Multilaterilaizing arbitral jurisdiction | p. 173 |
MFN clauses and treaty interpretation | p. 174 |
International jurisprudence supporting a broad application of MFN clauses | p. 177 |
The object and purpose of investment treaties | p. 180 |
Equal competition and investor-State dispute settlement | p. 180 |
Jurisdiction and compliance with treaty obligations | p. 182 |
Must the State's consent to arbitrate be "clear and unambiguous"? | p. 184 |
MFN clauses and treaty-shopping | p. 187 |
MFN treatment and public policy restrictions | p. 188 |
Conclusion: MFN treatment - securing the future of multilateralism | p. 193 |
Multilateralaization and corporate structuring | p. 197 |
Shareholder protection in international investment law | p. 200 |
Companies incorporated in the host State | p. 201 |
Minority shareholder protection | p. 202 |
Indirect investments in multilevel corporate structures | p. 204 |
The scope of protection of shareholders | p. 209 |
Multilateralization of investment protection through shareholder protection | p. 217 |
"Hiding behind the corporate veil": corporate structuring and corporate nationality | p. 221 |
Defining corporate nationality | p. 221 |
Assuming third-country nationality | p. 224 |
Dual nationals and corporate structuring | p. 228 |
Protecting host State reinvestments | p. 230 |
Corporate structuring and treaty-shopping | p. 234 |
Conclusion | p. 236 |
Multilateral enforcement of international investment law | p. 241 |
Investment treaty arbitration as a compliance mechanism | p. 243 |
Bilateralism in traditional international law compliance structures | p. 244 |
The mediation of foreign investors through an inter-State prism | p. 245 |
Structural insufficiencies of diplomatic protection | p. 247 |
Distinction between State and investor interests | p. 248 |
The empowerment of investment tribunals | p. 249 |
The investor's right to seek damages | p. 250 |
The limited influence of State on the arbitral process | p. 252 |
Limited review of arbitral awards | p. 253 |
Recognition and enforcement of arbitral awards | p. 255 |
Multilateralizing investment protection through investor-State arbitration | p. 256 |
Investment treaty arbitration as a mechanism for resolving uncertainty in international investment relations | p. 261 |
The vagueness of investor rights | p. 263 |
The dissolution of rule making and rule application | p. 266 |
NAFTA digression: the effectiveness of notes of interpretation | p. 268 |
The impending threat of institutional conflict: Pope & Talbot v. Canada | p. 269 |
Post-Pope & Talbot: dynamic adjustments of customary international law | p. 273 |
Conclusion | p. 275 |
Multilateralization through interpretation: producing and reproducing coherence in investment jurisprudence | p. 278 |
The potential for inconsistencies in investment treaty arbitration | p. 281 |
Incoherence and fragmentation in international dispute resolution | p. 282 |
Fragmentation in international investment law: multiplicity of sources, multiplicity of proceedings | p. 285 |
Arbitration: an embryonic institutional design | p. 287 |
The non-existence of stare decisis in international investment law | p. 288 |
Conclusion | p. 293 |
Interpretation methods and the unity of the system's sources | p. 293 |
Bilateralism and multilateralism in treaty interpretation | p. 294 |
Bilateralism in treaty interpretation | p. 295 |
Multilateralism in treaty interpretation | p. 298 |
Multilateralization through cross-treaty interpretation in investment arbitration | p. 305 |
The use of third-country BITs of the contracting States | p. 305 |
The use of wholly unrelated third-country BITs | p. 308 |
The use of model treaties in interpretation | p. 312 |
Teleological interpretation of BITs | p. 314 |
Conclusion | p. 319 |
The system's operative unity: the emergence of a system of de facto precedent in investment treaty arbitration | p. 321 |
The functions of precedent in concurring awards | p. 324 |
Analogizing with earlier decisions | p. 324 |
Precedent as a means of clarification of BIT provisions | p. 326 |
Abbreviation of reasoning | p. 328 |
The creation of de facto stare decisis: precedent and standard setting | p. 330 |
Transfer of the law-making function from States to tribunals | p. 332 |
Conclusion | p. 338 |
Unity of investment law and conflicting decisions | p. 339 |
Cases of open dissent | p. 341 |
Distinction of facts as an instrument to uphold unity | p. 347 |
Reconciling conflicts through conflict rules | p. 350 |
Unity in investment jurisprudence by concealing dissent | p. 352 |
Conclusion | p. 355 |
Conclusion: the emergence of a system of international investment law through interpretation | p. 357 |
Conclusion: Multilateralization - universalization - constitutionalization | p. 362 |
Summary: the multilateralization of international investment law | p. 364 |
Toward a universal regime of investment protection | p. 369 |
The constitutional function of international investment law | p. 372 |
Bibliography | p. 379 |
Index | p. 410 |
Table of Contents provided by Ingram. All Rights Reserved. |
ISBN: 9780521762366
ISBN-10: 0521762367
Series: Cambridge International Trade and Economic Law
Published: 20th August 2009
Format: Hardcover
Language: English
Number of Pages: 490
Audience: Professional and Scholarly
Publisher: Cambridge University Press
Country of Publication: GB
Dimensions (cm): 22.86 x 15.24 x 3.18
Weight (kg): 0.89
Shipping
Standard Shipping | Express Shipping | |
---|---|---|
Metro postcodes: | $9.99 | $14.95 |
Regional postcodes: | $9.99 | $14.95 |
Rural postcodes: | $9.99 | $14.95 |
How to return your order
At Booktopia, we offer hassle-free returns in accordance with our returns policy. If you wish to return an item, please get in touch with Booktopia Customer Care.
Additional postage charges may be applicable.
Defective items
If there is a problem with any of the items received for your order then the Booktopia Customer Care team is ready to assist you.
For more info please visit our Help Centre.
You Can Find This Book In
BLACK FRIDAY
RRP $148.80
$37.25
OFF