International Investment Law and Investor-State Dispute Settlement

“Investment Treaty Arbitration” (which is an umbrella term for arbitration of investment law disputes) is a field of law that has grown exponentially. Not only due to increased foreign direct investments, but due to the increase in states having signed international investment agreements (bilateral and multilateral) and that such agreements typically include an arbitration clause (investor-State dispute settlement). With increase in drafting and signing treaties, on the one hand, and the vast arbitral case law stemming from investment treaty arbitration on the other hand, the importance of international investment law and investor-State dispute settlement has grown exponentially the last century.

With such growth comes challenges of all sorts. A serious legitimacy concern has emerged. Was international investment law developed at the backdrop of post-imperialism and does it have colonial underpinnings? Does (or should) the regime interact with other international legal regimes, such as human rights and environmental law? Are international adjudicators better placed than states to determine what was in their own “public interest”? What level of deference should be displayed in the decision-making process? These are just a few questions of theoretical importance that will be discussed in this course alongside the practice of international investment law and investor-State dispute settlement.

This course is divided in four elements that inform each other: (1) Introduction to international dispute resolution, with an emphasis on investor-State Dispute Settlement, (2) International Investment Law, (3) Investment Arbitration, and (4) Post-Award Proceedings, with an emphasis on sovereign immunity from execution.

(1)    We will briefly cover the origins, history, purpose, and objectives of the regime. We will also discuss the re-emerging legitimacy crisis and backlash. We will briefly go over the core features and history of international dispute resolution (international courts and tribunals, commissions, arbitration bodies, etc).

(2)    We will focus on protection of foreign investments under international law. We will look at treaty law and customary international law. We will also designate some time to the background of international investment agreements (“IIA”), treaty interpretation based on the Vienna Convention on the Law of Treaties (“VCLT”), and state responsibility and attribution based on the ILC Draft on the Rules of State Responsibility (“ARISWA”).

(3)    We will analyze and address procedural issues in connection with investment treaty arbitration. We will look at inter alia jurisdictional issues, admissibility matters, applicable law issues, remedies, confidentiality and transparency, and so on.

(4)    Finally, we will analyze and address post-award challenges; for example, set-aside or annulment procedures, enforcement of investment awards, and particularly the issue of sovereign immunity from enforcement and execution of arbitral awards.

 Pre-knowledge in international dispute resolution and ideally international arbitration is not a strict requirement but would be highly beneficial. Pre-knowledge in public international law is an advantage but not a pre-requisite.

This course satisfies the upper-level writing seminar requirement.