Overview

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, internationalised 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 recognised 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.

Full Product Details

Author:   Stephan W. Schill (Attorney-at-Law (New York); Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law)
Publisher:   Oxford University Press
Imprint:   Oxford University Press
Dimensions:   Width: 17.70cm , Height: 5.50cm , Length: 24.80cm
Weight:   1.686kg
ISBN:  

9780199589104

ISBN 10:   0199589100
Pages:   920
Publication Date:   14 October 2010
Audience:   College/higher education ,  Postgraduate, Research & Scholarly
Format:   Hardback
Publisher's Status:   Active
Availability:   To order  
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Table of Contents

Part I - Concepts and Foundations 1: Stephan W. Schill: International Investment Law and Comparative Public Law - An Introduction 2: Giacinto della Cananea: Minimum Standards of Procedural Justice in Administrative Adjudication 3: Benedict Kingsbury and Stephan W. Schill: Public Law Concepts to Balance Investors' Rights with State Regulatory Actions in the Public Interest - The Concept of Proportionality Part II - Investor Rights in Comparative Perspective 4: Markus Perkams: The Concept of Indirect Expropriation in Comparative Public Law - Searching for Light in the Dark 5: Stephan W. Schill: Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law 6: Helge Elisabeth Zeitler: Full Protection and Security 7: Ali Ehsassi: Cain & Abel: Congruence and Conflict in the Application of the Denial of Justice Principle 8: Jürgen Kurtz: The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO 9: Freya Baetens: Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and Investment Law 10: Stephan W. Schill: Umbrella Clauses as Public Law Concepts in Comparative Perspective 11: Abba Kolo: Transfer of Funds: The Interaction between the IMF Articles of Agreement and Modern Investment Treaties: A Comparative Law Perspective Part III - Comparative Administrative and Comparative Constitutional Law on Selected Issues 12: Irmgard Marboe: State Responsibility and Comparative State Liability for Administrative and Legislative Harm to Economic Interests 13: Hector A. Mairal: Legitimate Expectations and Informal Administrative Representations 14: Kim Talus: Revocation and Cancellation of Concessions, Operating Licenses and Other Beneficial Administrative Acts 15: Catherine Donnelly: Public-Private Partnerships: Award, Performance and Remedies 16: Christina Binder and August Reinisch: Economic Emergency Powers: A Comparative Law Perspective 17: Federico Lenzerini: Property Protection and Protection of Cultural Heritage 18: Christian Tietje and Karoline Kampermann: Taxation and Investment: Constitutional Law Limitations on Tax Legislation in Context 19: Paul B. Stephan: Comparative Taxation Procedure and Tax Enforcement Part IV - Dispute Settlement, Arbitral Procedure, and Remedies 20: Gus Van Harten: Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law 21: Chester Brown: Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law 22: William Burke-White and Andreas von Staden: The Need for Public Law Standards of Review in Investor-State Arbitrations 23: Anne van Aaken: Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View 24: Borzu Sabahi and Nicholas J. Birch: Comparative Compensation for Expropriation 25: Alessandra Asteriti and Christian J. Tams: Transparency and Representation of the Public Interest in Investment Treaty Arbitration

Reviews

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

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

Author Information

"Stephan Schill is a senior research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. He is admitted to practice as a ""Rechtsanwalt "" in Germany and as an Attorney-at-law in New York. He was formerly the international arbitration law clerk to the Honorable Charles N. Brower, 20 Essex Street Chambers, London. As such, he worked on international commercial and investor-State disputes under various arbitral rules, including ICSID, NAFTA, ICC, SCC, LCIA and UNCITRAL Rules. Prior to that he was a Research Scholar at New York University School of Law and a law clerk to Judge Abdul G. Koroma at the International Court of Justice. He holds a Ph.D./Dr. iur. from Johann Wolfgang Goethe-Universität Frankfurt am Main that he prepared under the supervision of Prof. Dr. Armin von Bogdandy. He authored several articles in leading international law journals and a book on The Multilateralization of International Investment Law."

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