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Applicable Law in Investor-State Arbitration
The Interplay Between National and International Law
Hege Elisabeth Kjos
344 pages
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234x156mm
978-0-19-965695-0
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Hardback
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21 March 2013
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- Provides a detailed analysis of the substantive applicable law in investor-state arbitration
- Critically assesses the theoretical background and practice of arbitral tribunals on conflicts-of-laws issues
- Offers a full overview of the factors that influence whether national or international law is applied, and the ways in which the other body of law may still indirectly apply to each case
- Sets out balanced conclusions to the controversial topic of investor rights versus host state sovereignty
A PDF version of this book is available for free in open access via www.oup.com/uk as well as the OAPEN Library platform, www.oapen.org. It has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 3.0 license and is part of the OAPEN-UK research project.
This book examines the law, national and/or international, that arbitral tribunals apply on the merits to settle disputes between foreign investors and host states. In light of the freedom that the disputing parties and the arbitrators have when designating the applicable law, and because of the hybrid nature of legal relationship between
investors and states, there is significant interplay between the national and the international legal order in investor-state arbitration.
The book contains a comprehensive analysis of the relevant jurisprudence, legal instruments, and scholarship surrounding arbitral practice with respect to the application of national law and international law. It investigates the awards in which tribunals referred to consistency between the legal orders, and suggests alternatives to the traditional doctrines of monism and dualism to explain the relationship between the national and the international legal order. The book also addresses the territorialized or internationalized
nature of the tribunals; relevant choice-of-law rules and methodologies; and the scope of the arbitration agreement, including the possibility of host states presenting counterclaims in investment treaty arbitration. Ultimately, it argues that in investor-state arbitration, national and international law do not only coexist but may be applied simultaneously; they are also interdependent, each complementing and informing the other both indirectly and directly for a larger common good: enforcement of rights and obligations regardless of their national or international origin.Readership: Scholars of international
investment law; practitioners working in investor-state arbitration; institutions involved in investor-state arbitration
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Hege Elisabeth Kjos, Assistant Professor of International Law, Amsterdam Center for International Law, University of Amsterdam Dr. Hege Elisabeth Kjos is Assistant Professor of International Law at the University of Amsterdam. Her research and courses focus on international law and international dispute settlement in general, and international investment law and arbitration in particular. In addition, she is a Deputy General Editor of Arbitration International, Kluwer Law International and General Editor of the Hague Yearbook of International Law, Brill. She previously worked at the Legal Department of
the World Bank in Washington, D.C., following studies in Norway, France, the Netherlands, and the United States.
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"This is an excellent monograph that makes important inroads to investment arbitration and will no doubt make a wonderful companion to anyone with a serious interest in this field." - Ilias Bantekas, Transnational Dispute Management "The author's critical analysis of the multifarious shades and lights of such a complex subject has made it a worthwhile reading for gaining some insight into the subject. International lawyers, international investment lawyers, international arbitration law experts, international arbitrators and academics in the field will find the study of great value for some time to come. The study is a most
up-to-date one in the field as well." - A F M Maniruzzaman, Manchester Journal of International Economic Law
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1: General Introduction
2: Territorialized and Internationalized Arbitration Tribunals
3: Choice-Of-Law Rules
4: The Scope of the Arbitration Agreement: Claims and Counterclaims of a National and/or International Nature
5: The Primary Applicability of National Law and the Role of International Law
6: The Primary Applicability of International Law and the Role of National Law
7: Concurrent Application of, and Reference to, National and International Law in Case of Consistency
8: Concluding Observations
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