General international law is part and parcel of investor-state arbitration. This is the case not only regarding treaty law and state responsibility, but also with respect to matters such as state succession, the international minimum standard, and state immunity, all of which feature regularly in investor-state arbitration. Yet, although general international law issues arise in almost every investment case and often require extensive research, no systematic exploration of the relationship between the two exists. This Commentary is the first to fill this gap, providing a comprehensive treatment of the role of general international law in international investment law. It engages in detail with central matters of general international law, including in the practice of investment arbitration tribunals, moving beyond existing works which focus solely on procedural and institutional provisions. The Commentary's forty-six chapters do not focus on a single source or subject. Instead, each concentrates on a specific, relevant article from a particular source of public law - such as the Vienna Convention on the Law of Treaties (1969) or the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts (2001), among others. The entries combine detailed analysis with an examination of procedural and substantive aspects - such as nationality and unjust enrichment - and respond to the following questions: how have investment tribunals interpreted and applied the specific rule of general international law? To what extent and why does such interpretation and application align with or deviate from the practice by other international courts or tribunals? How could and should investment tribunals interpret and apply rules that have yet to feature in investment arbitration? This unique format means this commentary will serve as a central guide for all relevant case law and scholarship on international investment law.
Preface Table of Contents List of Contributors Table of Cases Andreas Kulick and Michael Waibel: General international law in international investment law PART I: LAW OF TREATIES (VCLT) 1: Belinda McRae: Article 18 of the VCLT: Obligation not to defeat the object and purpose of a treaty prior to its entry into force 2: Alain Pellet and Jean-Baptiste Merlin: Articles 19-23 of the VCLT: Reservations (overview) - flexibility devices in applying treaties in the field of investment 3: Tania Voon: Article 24 of the VCLT: Entry into force 4: Tania Voon: Article 25 of the VCLT: Provisional application 5: Can Yeginsu and Patrick Pearsall: Article 26 of the VCLT: Pacta sunt servanda 6: Rumiana Yotova: Article 27 of the VCLT: Internal law and observance of treaties 7: Ben Juratowitch KC and Jackie McArthur: Article 28 of the VCLT: Non-Retroactivity of Treaties 8: Emma Lindsay and Philippa Webb: Article 29 of the VCLT: Territorial scope 9: Sean Aughey: Article 30 of the VCLT: Application of successive treaties relating to the same subject-matter 10: Andreas Kulick and Panos Merkouris: Article 31 of the VCLT: General rule of interpretation 11: Esmé Shirlow and Michael Waibel: Article 32 of the VCLT: Supplementary means of interpretation 12: Peter Tzeng: Article 33 of the VCLT: Interpretation of treaties authenticated in two or more languages 13: Luke Sobota and Amelia Keene: Parts IV and V of the VCLT: Amendment, invalidity, termination and suspension of investment treaties 14: Hélène Ruiz Fabri and Randi Ayman: Article 59 of the VCLT: Termination or suspension of the operation of a treaty implied by conclusion of a later treaty 15: Hélène Ruiz Fabri and Randi Ayman: Article 60 of the VCLT: Termination or suspension of the operation of a treaty as consequence of its breach 16: Makane Moïse Mbengue: Article 62 of the VCLT: Fundamental change of circumstances PART II: RESPONSIBILITY OF STATES AND INTERNATIONAL ORGANIZATIONS 17: Chester Brown: Article 4 of the ARSIWA: Conduct of organs of a State 18: Jorge E Viñuales and Oliver Hailes: Article 5 of the ARSIWA: Conduct of empowered entities 19: Jonathan Bonnitcha and Alisha Mathew: Article 6 of the ARSIWA and Article 7 of the ARIO 20: Chester Brown: Article 7 of the ARSIWA: Excess of authority or contravention of instructions 21: Jorge E Viñuales and Alina Papanastasiou: Article 8 of the ARSIWA: Attribution of conduct instructed, directed, or controlled by a State 22: Claudia Annacker and Enikxo Horváth: Article 13 of the ARSIWA: International obligation in force for a State 23: Claudia Annacker and Enikxo Horváth: Article 14 of the ARSIWA: Extension in time of the breach of an international obligation 24: Claudia Annacker and Enikxo Horváth: Article 15 of the ARSIWA: Breach consisting of a composite act 25: Federica Paddeu: Article 20 of the ARSIWA: Consent 26: Federica Paddeu: Article 21 of the ARSIWA: Self-defence 27: Federica Paddeu: Article 23 of the ARSIWA: Force majeure 28: Federica Paddeu: Article 24 of the ARSIWA: Distress 29: Federica Paddeu and Michael Waibel: Article 25 of the ARSIWA: Necessity 30: Federica Paddeu: Article 26 of the ARSIWA: Compliance with peremptory norms 31: Federica Paddeu: Article 27 of the ARSIWA: Consequences of invoking a circumstance precluding wrongfulness 32: Geraldo Vidigal and Stephanie Forrest: Part Two, Ch. I and II of the ARSIWA: Remedies 33: Martins Paparinskis: Articles 49-54 of the ARSIWA: Countermeasures 34: Fernando Lusa Bordin: Article 55 of the ARSIWA: Lex specialis PART III: STATE SUCCESSION, SOURCES, AND STATE IMMUNITY 35: Arman Sarvarian: The procedure for succession to bilateral investment treaties 36: James Devaney and Christian Tams: Succession in respect of cession, unification, and separation of States 37: Arman Sarvarian: The protection of foreign investment in the law of state succession 38: Patrick Dumberry: Article 38 of the ICJ Statute: Sources 39: August Reinisch: State Immunity in investment arbitration PART IV: SUBSTANTIVE AND PROCEDURAL ASPECTS OF GENERAL INTERNATIONAL LAW IN INTERNATIONAL INVESTMENT LAW 40: Jingyuan Zhou and Sergio Puig: Cross-cutting substantive aspects: NAFTA standards in light of the decisions of international courts and tribunals 41: Jarrod Hepburn: Denial of justice 42: Rob Howse: The international law minimum standard of treatment 43: Cameron Miles: Cross-cutting procedural powers of international courts and tribunals 44: Chiara Giorgetti: Nationality 45: Régis Bismuth: Abuse of process 46: Kathleen Claussen: Unjust enrichment Index
Andreas Kulick is a senior research fellow at the Eberhard Karls Universität Tübingen. He has been a visiting fellow at the Lauterpacht Centre for International Law, the European University Institute, NYU School of Law, and the WZB Berlin. His research focuses on public international law, particularly on international dispute settlement, international economic law, and general international law. He advises and represents states and other actors in various matters of public international law before international courts and tribunals. Michael Waibel is a professor of international law at the University of Vienna. His teaching and writing focuses on international law, international economic law, sovereign debt, and international dispute settlement. He is Co-General Editor of the ICSID Reports and Co-Editor-in-Chief of the Journal of International Economic Law. He previously taught at the University of Cambridge and served as Co-Deputy Director of the Lauterpacht Centre.
Reviews for General International Law in International Investment Law: A Commentary
This tremendously valuable resource is obligatory reading for all those who study and work in investment law and arbitration. With outstanding analyses from leading public international law scholars and practitioners, its place in the pantheon of indispensable reference works is assured. * Andrea K. Bjorklund, L. Yves Fortier Chair in International Arbitration and International Commercial Law, McGill University * This Commentary on General International Law in International Investment Law co-edited by Andreas Kulick and Michael Waibel is a welcome and precious sum of around 800 pages on the rules of general international law which have been adopted in the international sub-system of investment law. Topics like the law of treaties and its interpretation, attribution of conduct, responsibility of states, state succession, and so on are central and have been developed in 47 entries by a brilliant team of authors from both practice and academia. I am convinced that it will be a reference tool for practitioners, scholars, students and above all arbitrators. * Brigitte Stern, Emeritus Professor of Public International Law and International Arbitrator *
