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International Investment Law and Comparative Public Law
Edited by Stephan W. Schill
920 pages
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246x171mm
978-0-19-958910-4
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Hardback
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14 October 2010
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- Innovative examination of the relationship between international investment arbitration and judicial review of governmental conduct from a comparative public law perspective
- Clarifies the linkages between investment disputes and comparative administrative law concepts
- Features in-depth comparative analysis of the major issues in international investment law: expropriation, fair and equitable treatment, national treatment, umbrella (sanctity of contract) clauses, and full protection and security
- Features comparative analysis of procedural challenges that arise both in investment disputes and in comparative administrative procedures, developing suitable procedural models
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.Readership: Practitioners involved in international investment disputes; scholars and students of international
investment law and comparative administrative law
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Edited by Stephan W. Schill, Attorney-at-Law (New York); Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law Contributors:
Anne van Aaken, University of St. Gallen
Alessandra Asteriti, University of Glasgow School of Law.
Freya Baetens, Leiden University
Christina Binder, University of Vienna
Nicholas J. Birch, Georgetown University Law Center
Chester Brown, University of Sydney
William Burke-White, University of Pennsylvania Law School
Giacinto della Cananea, University of Naples <"Federico II>" and University of Naples <"Suor
Orsola Benincasa>"
Catherine Donnelly, Trinity College, Dublin
Ali Ehsassi, Practitioner
Karoline Kampermann, Federation of German Industries (BDI e. V.), Berlin
Benedict Kingsbury, New York University School of Law
Abba Kolo, Centre for Energy, Petroleum and Mineral Law & Policy, University of Dundee
Jürgen Kurtz, Institute for International Law and the Humanities, University of Melbourne Law School
Federico Lenzerini, University of Siena, Italy
Irmgard Marboe, University of Vienna
Hector A. Mairal, National University of Buenos Aires
Markus Perkams, Clifford Chance
August Reinisch, University of Vienna and Johns Hopkins University
Borzu Sabahi, Fulbright &
Jaworski L.L.P
Andreas von Staden, University of St. Gallen.
Paul B. Stephan, University of Virginia
Kim Talus, UCL School of Energy and Resources, Australia
Christian Tams, University of Glasgow
Christian Tietje, Martin Luther University Halle-Wittenberg.
Gus Van Harten, Osgoode Hall Law School
Helge Elisabeth Zeitler, International Criminal Tribunal for Rwanda
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"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
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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
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