Substantive Law in Investment Treaty Arbitration. The Unsettled Relationship between International Law and Municipal Law

Wolters Kluwer Law & Business | Kluwer Law International

Practice Area: Commercial Arbitration and Litigation

by: Monique Sasson
June 2010, ISBN 9041132236 , ISBN 13: 9789041132239
Hardcover , 304 pp.

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The difficult coexistence of municipal law and international law is nowhere more evident than in the context of investment treaty disputes. Investment treaty arbitral tribunals commonly address, as a matter of international law, an alleged breach of a contract (or other legal obligation concerning an investment) that is often regulated by municipal law. However, there is no selfcontained legal system that provides substantive rules of direct applicability for these tribunals. In practice, approaches range from complete exclusion of municipal law to complete reliance on municipal law. While the former has no defensible foundation in international law, an absolute renvoi to municipal law runs afoul of the principle that international law governs the characterization of an internationally wrongful act.

Arguing that international investment law requires a more nuanced consideration of the role of municipal law than many arbitral tribunals have implemented to date, this book provides a detailed, systematic approach to the interplay of municipal law and international law in investment disputes. The treatment focuses on the role of municipal law in providing the substance for concepts such as contracts, property rights, and shareholders’ rights, which are relevant in the international investment treaty context but are not regulated under international law. Among the questions addressed are the following:

• If the application of international law requires a renvoi to municipal law, how should that renvoi be conducted?

• In investment disputes, what role, if any, should municipal law have in assessing State attribution under international law? • Should shareholders receive compensation for damages suffered by their company due to a violation of an international obligation vis-à-vis the company? • May foreign investors rely on ‘expectations’ as an autonomous source of rights in investment treaty disputes? • Does an alleged breach of an umbrella clause transform a breach of contract claim covered by municipal law into an international law claim? The book’s chapters answer these and other investment law questions in depth, drawing on analyses of the issues and implications in arbitral decisions. This work will be welcomed by arbitrators, arbitration counsel, corporate counsel, and scholars of international arbitration.

Preface Acknowledgements List of Abbreviations Introduction The Unsettled Relationship between International Law and Municipal Law Chapter 1 Attribution under the Law of State Responsibility Chapter 2 The Notion of ‘Investment’ Chapter 3 The Nationality of an Investor Chapter 4 The Concept of Property Chapter 5 Shareholders' Rights Chapter 6 Contract versus Treaty Claims Chapter 7 Umbrella Clauses: When a Breach of Contract May Become a Breach of Treaty Conclusion The Unsettled Relationship between International and Municipal Law Appendix 1 Hermann Abs and Lord Shawcross, Draft Convention on Investments Abroad (1959) Appendix 2 Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments (1959) Appendix 3 Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens (1961) Appendix 4 Organisation for Economic Co-operation and Development Draft Convention on the Protection of Foreign Property (1967) Index


This book is a volume in a book series: » International Arbitration Law Library Series Set

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USD price: $196.00