International Investment Law for the 21st Century

Essays in Honour of Christoph Schreuer

Edited by Christina Binder, Ursula Kriebaum, August Reinisch, and Stephan Wittich

Unique volume featuring comprehensive analysis of all areas of international investment law
Innovative exploration of the interaction between international investment law and other areas of international law, such as human rights
Contributions by leading experts in the field

International Investment Law for the 21st Century

Essays in Honour of Christoph Schreuer

Edited by Christina Binder, Ursula Kriebaum, August Reinisch, and Stephan Wittich

Description

International investment law has become increasingly prominent in the international legal order, spurred on by the explosion of Bilateral Investment Treaties between States and a sharp rise in international investment disputes. This rise to prominence has however not always been matched by academic reflection on the content of procedure of international investment law and its role within general international law. This volume seeks to remedy this situation by providing careful analysis of every area of international investment law and its relationship with other legal fields.

It is written in honor of one of the leading experts in the field of investment arbitration, Christoph Schreuer. The book explores specific and topical problems of international investment law and practice in a focused way. It also provides a forum for broader theoretical reflections on international investment law and its relation to general international law. The book includes chapters on jurisdictional questions, issues of procedure in investment proceedings, the relationship between investment arbitration and other forms of investment protection, problems of substantive investment law, regional aspects, interfaces between investment law and other areas of law as well as the future of the law of investment protection. Featuring contributions by many of the most prominent scholars and practitioners of investment arbitration, this work should become an indispensable tool for practitioners and academics working in the field.

International Investment Law for the 21st Century

Essays in Honour of Christoph Schreuer

Edited by Christina Binder, Ursula Kriebaum, August Reinisch, and Stephan Wittich

Introduction
1. Christoph Schreuer: an Appreciation, Elihu Lauterpacht
2. A Tribute to Christoph Schreuer, Hanspeter Neuhold
Jurisdiction
3. Most Favoured Nation Clauses and Jurisdictional Clauses in Investment Treaty Arbitration, Guido Santiago Tawil
4. MFN Clauses and Dispute Resolution in Investment Treaties - Have We Reached the End of the road?, Kaj Hober
5. Investments 'in the Territory' of the Host State, Christina Knahr
6. Consent and Due Process in Multiparty Investor-State Arbitrations, Carolyn Lamm
7. Jurisdiction, Competence and Admissibility of Claims in ICSID Arbitration Proceedings, Gerold Zeiler
8. Contract Claims before Treaty Tribunals, Anthony Sinclair
9. Monitoring of Domestic Courts in BIT Arbitrations. A Brief Inventory of Some Issues, Christoph Liebscher
Procedure
10. Arbitrator Independence in Investment Arbitration, Audley Sheppard
11. Provisional Measures in Recent Proceedings: What Parties Request and What Tribunals Order, Loretta Malintoppi
12. Inherent Powers in Investment Arbitration, Friedl Weiss
13. ICSID Annulment Decisions - 3 Generations Revisited, Irmgard Marboe
14. The Scope of ICSID Review and Erga Omnes Effect of Annulment Decisions. The Case of CMS v. Argentina, Ieva Kalnina & Domenico Di Pietro
15. On the Denunciation of the ICSID Convention, Consent to ICSID Jurisdiction, and the Limits of the Contract Analogy, Oscar Garibaldi
16. Denouncing ICSID, Keyvan Rastegar
17. State Immunity and Enforcement of Arbitral Awards, Andrea Bjorklund
18. Enforcement of ICSID Awards: Articles 53 and 54 of the ICSID Convention, Stanimir Alexandrov
Investment Arbitration and Other Forms of Investment Protection
19. The Diplomatic Protection of Foreign Investors: a Tale of Judicial Caution, Peter T. Muchlinski
20. Protection of Shareholders in International Investment Law, Commenting on the ICJ Decision in Diallo v. Congo and How it Relates to the Jurisprudence in the Investment Treaty Context, Abby Cohen Smutny
21. Chancellor Wirth and the Mologoles Concession 1923-1927: the German-speaking Origins of the ICSID Convention, V. V. Veeder
Substantive Investment Law
22. The Notion of Investment, Emmanuel Gaillard
23. Local Remedies and the Standards for the Protection of Foreign Investment, Ursula Kriebaum
24. Premature Treaty Claims, Ole Spiermann
25. Do Umbrella Clauses apply to Unilateral Declarations?, Maria Cristina Griton
26. BIT by BIT: The Silent Liberalization of the Capital Account, Michael Waibel
27. The United States Model BIT and Denial of Justice in International Law, Stephen M. Schwebel
Regional Aspects of Investment Protection
28. The Canadian Approach to Investment Protection: How Far Have We Come?, Yves Fortier
29. Conflict of Norms Stemming from Intra-EU BITs and EU Legal Obligations: Some Remarks on Possible Solutions, Marek Wierzbowski
30. Investment Rules in Regional Integration Agreements in Latin America - the Case of the Andean Pact/ Andean Community, Waldemar Hummer
Investment Law and Other Fields
31. The Provisional Application of the Energy Charter Treaty, Gerhard Hafner
32. Changed Circumstances in Investment Law. Interfaces between the Law of Treaties and the Law of State Responsibility with a Special Focus on the Argentine Crisis, Christina Binder
33. The Economic Emergency Defence in Bilateral Investment Treaties: A Development Perspective, Asif Qureshi
34. The European Court of Human Rights as Investment Protection Tribunal, Christian Tomuschat
35. Recent Case Law on the Protection of Property in the European Convention on Human Rights, Luzius Wildhaber & Isabelle Wildhaber
36. Harmonizing Investment Protection and International Human Rights: First Steps Towards a Methodology, Bruno Simma & Theodore Kill
37. The Principle of Joint Tortfeasors in Investment Arbitration, Stephan Wittich
38. Interpreting Investment Treaties: Experiences and Examples, Thomas W. Wälde
39. Commercial Arbitration and Investment Arbitration: Fertile Soil or False Friends?, Guiditta Cordero Moss
The Future
40. Continuity and Discontinuity in International Dispute Settlement, James Crawford
41. Contemporary Law of Foreign Investment: Revisiting the Status of International Law, Rudolf Dolzer
42. Precedent in Investment Treaty Arbitration, Andrés Rigo
43. The Saga of CMS: Res Judicata, Precedent, and the Legitimacy of ICSID Arbitration, Charles Brower, Michael Ottolenghi & Peter Prows
44. Compliance with Investment Treaties: When States are more likely to Breach or Comply with Investment Treaties?, Moshe Hirsch
45. The Impact of Human Rights on International Investment Law and Investor-State Arbitration, Ernst-Ulrich Petersmann
46. The Future of Investment Arbitration, August Reinisch

International Investment Law for the 21st Century

Essays in Honour of Christoph Schreuer

Edited by Christina Binder, Ursula Kriebaum, August Reinisch, and Stephan Wittich

Author Information

Christina Binder is Assistant Professor of International Law at the University of Vienna. She is author of numerous publications in various fields of international law and comparative law. Christina Binder also works as independent consultant and legal advisor in the field of international law with special focus on international human rights law.
Ursula Kriebaum is Professor of International Law at the University of Vienna, Professorial Lecturer at the Diplomatische Akademie Wien/Vienna School of International Studies (Austria) and at the Summer Legal Studies Program of the Loyola University New Orleans College of Law; legal expert in various investment arbitrations; consultant in international human rights law; associate editor of Transnational Dispute Management.
August Reinisch is Professor of International and European Law at the University of Vienna and Professorial Lecturer at the Bologna Center of SAIS/Johns Hopkins University; Director of the L.L.M. Program in International Legal Studies at the University of Vienna; Member of the ILA Committee on International Law of Foreign Investment; Arbitrator and legal expert in various investment arbitrations; Member of the Panels of Conciliators and of Arbitrators maintained by the International Center for Settlement of Investment Disputes (ICSID); Arbitrator on the In Rem Restitution Panel according to the Austrian General Settlement Fund.
Stephan Wittich is Assistant Professor of International Law at the University of Vienna. He also teaches international law at the Bratislava School of Law and the Diplomatic Academy/Vienna School of International Studies. He is executive editor of the Austrian Review of International and European Law and has published widely in various areas of international law.

Contributors:

Stanimir Alexandrov, Sidley Austin LLP
Christina Binder, University of Vienna
Andrea Bjorklund, University of California
Charles H. Brower II, Iran-United States Claims Tribunal
Guiditta Cordero Moss, University of Olso
James Crawford, Lauterpacht Centre for International Law
Domenico Di Pietro, Chiomenti Studio Legale
Rudolf Dolzer, Universität Bonn
Yves Fortier, Ogilvy Renault
Emmanuel Gaillard, Shearman & Sterling LLP
Oscar Garibaldi, Covington & Burling LLP
María Cristina Gritón Salias,
Aleksander Gubrynowicz, University of Warsaw
Gerhard Hafner, University of Vienna
Moshe Hirsch, Hebrew University of Jerusalem
Kaj Hober, Mannheimer Swartling
Waldemar Hummer, Universität Innsbruck
Ieva Kalnina, University of Latvia
Theodore Kill, Office of Judge Bruno Simma International Court of Justice
Christina Knahr, University of Vienna
Ursula Kriebaum, University of Vienna
Carolyn Lamm, White & Case LLP
Elihu Lauterpacht, Lauterpacht Centre for International Law
Christoph Liebscher, Rechtsanwälte GmbH
Loretta Malintoppi, Eversheds LLP
Irmgard Marboe, University of Vienna
Alexandra K. Meise Bay, White & Case LLP
Peter T. Muchlinski, Transnational Dispute Management
Hanspeter Neuhold, University of Vienna
Michael Ottolenghi, Iran-United States Claims Tribunal
Hansel T. Pham, White & Case LLP
Ernst-Ulrich Petersmann, European University Institute
Peter Prows, Law Clerk to The Honorable Charles N. Brower
Asif Qureshi, University of Manchester
Keyvan Rastegar, Allen & Overy LLP
August Reinisch, University of Vienna
Andrés Rigo, University of Dundee
Stephen M. Schwebel, former President of the International Court of Justice
Audley Sheppard, Clifford Chance
Bruno Simma, Judge at the International Court of Justice
Anthony Sinclair, Allen & Overy LLP
Abby Cohen Smutny, White & Case LLP
Ole Spiermann, University of Copenhagen
Guido Santiago Tawil, M. & M. Bomchil
Christian Tomuschat, Emeritus Professor, Humboldt University of Berlin
V. V. Veeder, Essex Court Chambers
Thomas W. Wälde (deceased), University of Dundee
Michael Waibel, Lauterpacht Centre for International Law
Friedl Weiss, University of Vienna
Marek Wierzbowski, Millenium House
Luzius Wildhaber, former President of the European Court of Human Rights
Isabelle Wildhaber, Humboldt University Berlin
Stephan Wittich, University of Vienna
Gerold Zeiler, Rechtsanwälte GmbH