Applicable Law in Investor-State Arbitration

The Interplay Between National and International Law

Hege Elisabeth Kjos

Oxford Monographs in International Law

This is an open access title available under the terms of a CC BY-NC-ND 3.0 International licence
Provides a detailed analysis of whether the substantive applicable law in investor-state arbitration, national, international, or a combination of both
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

Part of the OAPEN-UK project

Applicable Law in Investor-State Arbitration

The Interplay Between National and International Law

Hege Elisabeth Kjos

Oxford Monographs in International Law

Description

This is an open access title available under the terms of a CC BY-NC-ND 3.0 International licence. It is free to read at Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations.

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.

Part of the OAPEN-UK project

Applicable Law in Investor-State Arbitration

The Interplay Between National and International Law

Hege Elisabeth Kjos

Oxford Monographs in International Law

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

Part of the OAPEN-UK project

Applicable Law in Investor-State Arbitration

The Interplay Between National and International Law

Hege Elisabeth Kjos

Oxford Monographs in International Law

Author Information

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 Board Member 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.