There is a great degree of controversy on the proper complexion and role of general principles of law in the international legal order. Opinions range from total rejection of some types of principles to the most enthusiastic endorsement of principles as the necessary oil for the many complex wheels of the legal order. In this book one of the leading public lawyers of his generation explores the concept of good faith and its role in international law. Rather than offer a detailed, comprehensive examination, Kolb aims to map the true points of gravity of the principle of good faith in the international legal order. In so doing, he illustrates how the various legal institutions who operate in the sphere of public international law allow the principle of good faith to unfold.
General Principles of Law in Investment Arbitration surveys the function of general principles in the field of international investment law, particularly in investment arbitration. The authors’ analysis provides a representative case study of how this informal source operates alongside and in the absence of other sources of applicable law. The contributions are divided into two parts, devoted respectively to substantive principles and procedural ones. The principles discussed in the book are selected for their currency in the practice, their contested nature and their relevance.
Good Faith in International Investment Arbitration offers a comprehensive study on both the theory and application of the principle of good faith in the international arbitration process. It is an essential book for both practitioners and academics.
In the course of a single investor-state dispute, an arbitrator may make numerous decisions, from interpreting the treaty or national laws to taking into account case law, customs and policies. In practice, this process raises important issues regarding the consistency of decisions and the predictability and legitimacy of the decision-making process in general. Investment arbitration tribunals have developed a specialised process of legal decision making adapted to the interpretational needs that arise in the context of an investor-state dispute and to the transnational characteristics of the investment arbitration framework. This is the first book to offer an in-depth analysis of the transnational characteristics of investment arbitration and to analyse the interpretive arguments of investment tribunals and the way they use treaties, precedent, policies, general principles of law and customary law in their decision-making process. Drawing on publicly available arbitral case law supplemented with personal interviews with investment arbitrators, the author touches on such concepts and practices as the following: - an overview of various decision-making genres of arbitral tribunals: attitudinal, economic, strategic and legal; - the legal argumentation triptych of language–rhetoric–dialogue; - the specific language arbitrators have developed when interpreting the law; - how arbitrators use the concepts 'standards', 'rules', 'principles' and 'rights'; - the importance of the legal reasoning of arbitral awards and the role of rhetoric therein; - concepts of 'acceptability', 'audience' and 'legitimacy'; - limitations of the public international law interpretive methodology enshrined in the Vienna Convention; - interpretation of precedents, customary law, general principles of law and policies; - the way national and international legal orders interact in the context of interpretation; and - how decision-making is connected to the issues of predictability, consistency and the rule of law. The core of the book proposes a novel, full- edged dialogical network theory for analysing the interpretation process. As an exemplary demonstration of developing theory to keep up with practice, this unique book provides a deeply engaged means for enhancing the practice of international arbitration. Its introduction of a new field of interdisciplinary analysis employing legal argumentation theories is sure to provide inestimable guidance for institutions and policymakers, especially in light of recent proposals for the creation of a permanent investment arbitration court. Given that unveiling the legal decision-making process is critical for the well-being of the whole dispute resolution procedure, and that being aware of how arbitrators interpret the law can constitute a roadmap for counsel's arguments and approaches when dealing with cross-border disputes, the topic of this book is relevant for both academics and practitioners, and its signifcance can only grow as recourse to investor-state arbitration continues to expand.
This book evaluates the core of the concept of legitimate expectations from first principles in moral philosophy. It adopts an unconventional approach by examining this topic from a deep, philosophical perspective and delves into the debates on the binding nature of promise in moral philosophy. It then develops a doctrinal structure for the standard of protection. The author places the key premise of the book on the possibility of deriving firm conclusions from the debate and on creating a set of precise and prescriptive 'guidelines of the application of legitimate expectations'. The features of this book are threefold: first, a significant body of literature on moral philosophy is assimilated; second, core philosophical principles are extracted and expressed as a normative framework to resolve concrete cases; third, the author analysed a vast number of investment treaty awards against the underlying framework.
In this volume, Fernando Tupa explores the significance and practical consequences of the fundamental principle that consent to international arbitration is forum-specific, which is sometimes overlooked by investment tribunals.
This book assesses stability guarantees through the lens of the legitimate expectations principle to offer a new perspective on the stability concept in international energy investments. The analysis of the interaction between the concepts of stability and legitimate expectations reveals that there are now more opportunities for energy investors to argue their cases before arbitral tribunals. The book offers detailed analyses of the latest energy investment arbitral awards from Spain, Italy and the Czech Republic, and reflects on the state of the art of the legitimate expectations debate and its relationship with the stability concept. The author argues that, in order to achieve stability, the legitimate expectations principle should be employed as the main investment protection tool when a dispute arises on account of unilateral host state alterations. This timely work will be useful to both scholars and practitioners who are interested in international energy law, investment treaty arbitration, and international investment law.
This rigorous book explores the opposing investor-state relationship and argues that a stable investment environment is achieved when the rights of both parties are recognised and balanced. Stanislava Nedeva examines how both certainty and predictability can be achieved in oil and gas investment agreements and identifies the ways in which political risks to contractual stability and indirect expropriation can be mitigated.
Numerous jurisdictions worldwide have augmented their ratification of the New York Convention of 1958 with the UNCITRAL Model Law 1985 (UML), which takes a giant step forward toward global uniformity in legal application and understanding of the arbitration process. This book develops a standard or benchmark for the UML objective of uniformity, using the relevant legislation and case law of Hong Kong, Singapore, and Australia to consider whether a uniform approach to implementation of the UML and its interpretation is being achieved across those jurisdictions. The author’s methodological tools are eminently adaptable to other jurisdictions. Given the importance of the ability to set aside an arbitral award, the body of case law on setting aside and the directly related area of enforcement, the emphasis throughout is on Article 34. In addition, the study considers: - the meaning of uniformity in law and in the context of the UML; - the correct approach to interpretation of the UML pre and post Article 2A; - the interpretational relationship between the UML and the Convention on Contracts for the International Sale of Goods (CISG); - the relationship between the UML and the New York Convention; - the degree of textual uniformity of Article 34 with the three jurisdictions focused on; and - the degree of applied uniformity of Article 34 both in terms of juristic methodology and similarity of results. The author, with more than thirty years of practice in the field of commercial arbitration in Hong Kong, has had access to voluminous cases spanning decades and brings his specialist expertise to the subject. This book considers whether the UML has succeeded in its aim of achieving uniformity. It serves as a guide, both academic and practical, to exploring and adopting the correct approach to the interpretation of the UML as well as to the method of classification of court decisions under the UML. This study is of immeasurable academic and practical value.
