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The International Law of Investment Claims 1st Edition by Zachary Douglas ISBN 0521855675 9780521855679

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Author(s): Zachary Douglas
ISBN(s): 9780521855679, 0521855675
Edition: Kindle
File Details: PDF, 4.09 MB
Year: 2009
Language: english
SKU: EB-1997738 Category: Tag:

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ISBN 10: 0521855675 
ISBN 13: 9780521855679
Author: Zachary Douglas

The International Law of Investment Claims considers the distinct principles governing the prosecution of a claim in investment treaty arbitration. The principles are codified as 54 ‘rules’ of general application on the juridical foundations of investment treaty arbitration, the jurisdiction of the tribunal, the admissibility of claims and the laws applicable to different aspects of the investment dispute. The commentary to each proposed rule contains a critical analysis of the investment treaty jurisprudence and makes extensive reference to the decisions of other international courts and tribunals, as well as to the relevant experience of municipal legal orders. Solutions are elaborated in respect of the most intractable problems that have arisen in the cases, including: the effect of an exclusive jurisdiction clause in an investment agreement with the host state; reliance on the MFN clause in relation to jurisdictional provisions; and, the legitimate scope of derivative claims by shareholders.

The International Law of Investment Claims 1st Table of contents:

1. Juridical Foundations of Investment Treaty Arbitration

  • Defines investment treaties and their arbitration regime.

  • Distinguishes investor’s independent rights from those of their home state.

  • Discusses different models of how investors derive rights under treaties.

2. Applicable Laws

  • Tribunals have authority to determine applicable laws on issues in dispute.

  • Differentiates laws applicable to property rights, jurisdiction, liability, and procedure.

  • Emphasizes municipal (host state) law for property rights; treaty law for protection and jurisdiction; international law for state responsibility.

3. Preliminary Issues: Jurisdiction and Admissibility

  • Tribunal must have jurisdiction and claims must be admissible to hear merits.

  • Jurisdiction depends on investment acquisition, consent to arbitration, and scope of claims.

4. Consent to Arbitration

  • Host state’s valid consent is required at arbitration start.

  • Claimants must meet conditions precedent set in the treaty.

5. Investment

  • Investment involves a legal bundle of rights connected territorially and economically to host state.

  • Commitment of resources and assumption of risk for commercial return are key.

  • Differentiates rights in rem vs. rights in personam in contracts.

6. Jurisdiction ratione materiae (Subject-Matter Jurisdiction)

  • Covers claims based on investment treaty obligations, contracts, torts, or state acts related to investment.

  • Explores scope and limitations of jurisdiction over claims and counterclaims.

7. Jurisdiction ratione personae (Personal Jurisdiction)

  • Jurisdiction extends to parties who are nationals of contracting states per treaty and local law.

  • Nationality and control over investment at time of breach are key.

  • Discusses capacity to sue and treatment of dual nationals.

8. Jurisdiction ratione temporis (Temporal Jurisdiction)

  • Jurisdiction applies to claims based on obligations in force at the time of alleged breach.

  • Addresses investments made before or after treaty entry into force.

9. Most-Favoured-Nation Treatment and Jurisdiction

  • MFN clauses do not generally extend jurisdictional provisions from other treaties unless expressly stated.

10. Admissibility: Contractual Choice of Forum

  • Respecting exclusive jurisdiction clauses in contracts; tribunals may stay or decline jurisdiction in favor of agreed forums.

11. Admissibility: Shareholder Claims

  • Shareholders’ claims related to investments can be admissible, especially if company remedies are unavailable.

  • Addresses reflective loss and special treaty contexts.

12. Admissibility: Ownership Dispositions

  • Ownership structures can affect treaty protection; transfers require host state consent.

  • Post-arbitration transfers do not affect admissibility.

13. Admissibility: Denial of Benefits

  • Host state can deny treaty benefits to claimants, leading to dismissal of claims.

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Tags: Zachary Douglas, International Law, Investment Claims