international investment law research paper

Handbook of International Investment Law and Policy

• Reference work
• © 2021
• Julien Chaisse 0 ,
• Leïla Choukroune 1 ,
• Sufian Jusoh 2

School of Law, City University of Hong Kong, Kowloon, Hong Kong

You can also search for this editor in PubMed   Google Scholar

School of Business and Law, University of Portsmouth, Portsmouth, UK

Institute of malaysian and international studies, national university of malaysia, bangi, malaysia.

Provides an unprecedented range of authoritative and original chapters from leading world experts in international investment law and policy

Critically examines the interactions between international investment law and a large number of other international law domains

Serves as an essential resource for all interested in the broad relationship between investment law and other legal fields

34k Accesses

32 Citations

16 Altmetric

This is a preview of subscription content, log in via an institution to check access.

Access this book

Subscribe and save.

• Get 10 units per month
• Download Article/Chapter or eBook
• 1 Unit = 1 Article or 1 Chapter
• Cancel anytime
• Available as EPUB and PDF
• Read on any device
• Instant download
• Own it forever
• Durable hardcover edition
• Dispatched in 3 to 5 business days
• Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Other ways to access

Licence this eBook for your library

Institutional subscriptions

About this book

The Handbook of International Investment Law and Policy is a one‐stop reference source. This handbook covers the main conceptual questions in a logical, scholarly yet easy to comprehend manner. It is based on a truly global vision with particular emphasis on Global South related issues and developments. In this respect, the handbook provides an excellent modern treatment of international investment law which is one of the fastest growing areas of international economic law.

Professor Julien Chaisse, Professor Leïla Choukroune, and Professor Sufian Jusoh are the editors‐in‐chief of this 2500+ pages reference book, which is anticipated to become one of the most influenced reference books in the international economic law areas.

A highly comprehensive set of four volumes of original materials, the handbook is designed to cover all facets of international investment law and policy. The chapters, written by world‐leading experts, explore key ideas and debates in relation to: international investment substantive law (Volume I), Investor‐state dispute settlement (Volume II); interaction between international investment law and other fields of international law (Volume III); and, the new trends and challenges for international investment law (Volume IV).

The handbook features more than 100 contributions from leading experts (acade‐mics, lawyers, government officials), including Vivienne Bath, M. Sornarajah, Mélida Hodgson, Rahul Donde, Roberto Echandi, Andrew Mitchell, Ernst‐Ulrich Petersmann, Christina L. Beharry, Krista Nadakavukaren Schefer, Leon Trakman, Prabhash Ranjan, Emmanuel Jacomy, Mariel Dimsey, Stavros Brekoulakis, Romesh Weeramantry, Nathalie Bernasconi‐Osterwalder, David Collins, Damilola S. Olawuyi, Katia Fach Gomez, Jaemin Lee, Alejandro Carballo‐Leyda, Patrick W. Pearsall, Mark Feldman, Surya Deva, Luke Nottage, Rafael Leal‐Arcas, James Nedumpara, Rodrigo Polanco, to name some.

This handbook is an essential reference tool for students and scholars of international economic law. Policy makers and researchers alike will find the  Handbook of International Investment Law and Policy useful for years to come.

Similar content being viewed by others

Definitions, Standards of Treatment, Promotion and Protection of International Investments: An Introduction

International Investment Law: A Journey from the Past to the Future

International Investments Standards of Treatment, Promotion, and Protection: An Introduction

• International Investment Law
• Dispute Settlement
• International Law
• Global South
• National Treatment Standard

Table of contents (102 entries)

Front matter, definitions, standards of treatment, promotion and protection of international investments.

• Julien Chaisse, Leïla Choukroune, Sufian Jusoh

Definitions and Concepts

The concept of “investment”: treaty definitions and arbitration interpretations.

• Wenhua Shan, Lu Wang

The Definition of Investor in Investment Treaty Arbitration

• Domenico Di Pietro, Kevin Cheung

Specific Approval Requirement in Investment Treaties: A Pursuit of Legitimate Policy Objectives

• Teerawat Wongkaew

Legitimate Expectations in Investment Treaty Law: Concept and Scope of Application

• Emmanuel T. Laryea

Good Faith in International Investment Law and Policy

• Sanja Djajić

Investment Promotion Agencies: Investment Attraction, Policy Role, and Response to Crises

• Carlos Portales Undurraga, Cristián Rodríguez Chiffelle

Effects of BITs on FDI: The Role of Publication Bias

• Lorenz Reiter, Christian Bellak

Protection of Cross-Border Data Flows Under International Investment Law

• Sheng Zhang

Standards of Treatment, Promotion, and Protection

The national treatment obligation: law and practice of investment treaties.

• Manini Brar

The Standard of Most-Favored-Nation Treatment in Investor-State Dispute Settlement Practice

• James M. Claxton

The MFN Clause in Investment Law and Arbitration: A Developing Countries Perspective

• Tanjina Sharmin

Full Protection and Security and Its Overlap with Fair and Equitable Treatment

• Romesh Weeramantry

Performance Requirement Prohibitions in International Investment Law

• David Collins

Local Content Policies and Their Implications for International Investment Law

• Damilola S. Olawuyi

The Umbrella Revolution: State Contracts and Umbrella Clauses in Contemporary Investment Law

• Olga Boltenko

Editors and Affiliations

Julien Chaisse

Leïla Choukroune

Sufian Jusoh

About the editors

Dr. Julien Chaisse is Professor at the City University of Hong Kong, School of Law. He is a globally recognized authority on the intersection between international economic law (trade, investment, and tax), international dispute resolution, and the transnational law of globalization. His scholarship, which includes a dozen books and over 60 articles and book chapters, has created an enduring presence in the academic space and has even been cited by international courts/tribunals as well as US courts. In 2021, he was awarded the prestigious SmitLowenfeld Prize of the International Arbitration Club of New York for the best article published in the field of international arbitration. As a leading scholar in the field of international economic law, he sits on the editorial board of several high-impact international journals, and he is currently joint editor-in-chief of the Asia Pacific Law Review. Teaching in Europe and Asia-Pacific for almost 20 years, he has advised and mentored three dozen students and has lectured in more than a dozen graduate and undergraduate courses. He is an experienced arbitrator and he adjudicated on more than 20 cases (some of which have been cited and discussed in the international press). He is also frequently called upon to appear as an expert witness on arbitration law issues in international arbitration proceedings or enforcement actions before domestic courts. He is a sought-after consultant/expert to international organizations, governments, law firms, and private investors. He has advised international organizations and governments on private and public international law issues (including concessions contracts, special economic xxi zones, investment structuring, State and international organization immunities, and WTO accession) and assisted with the drafting of legislation in Austria, Azerbaijan, Canada, Ivory Coast, France, Georgia, Mongolia, Morocco, Pakistan, and Vietnam. Prior to joining City University School of Law, Dr. Chaisse taught at the Chinese University of Hong Kong (2009– 2019) where he served as research center director and Ph.D. and M.Phil. program director. He earlier worked as deputy head of the team analyzing the rules for multilateral trade and investment agreements at the World Trade Institute (Switzerland, 2006–2009), lecturer at elite school Sciences Po Aix (France, 2004– 2006), and as junior lawyer for the French Ministry of Foreign Affairs in New Delhi (Embassy of France in India, 2001–2004)..

Leïla Choukroune is Professor of international law and Director of the University of Portsmouth Thematic Area in Democratic Citizenship. Her research focuses on the interactions between international trade and investment law, human rights, development studies, jurisprudence, and social theory. For the past 20 years, it has been applied to the Global South in India, South Asia, China, and East Africa, in particular. She has published about 100 scientific articles, book chapters, and journal special issues in English, French, Spanish, and Chinese. She also has authored more than 10 books, including Judging the State in International Trade and Investment Law (2016), Exploring Indian Modernities (2018), Adjudicating Businesses in India (2021), and International Economic Law (2021). She is editor of the Springer book series International Law and the Global South (https://www.springer.com/ series/13447?detailsPage¼titles-) and the Routledge book series Human Rights, Citizenship and the Law (https://www.routledge.com/Studies-in-CitizenshipHuman-Rights-and-the-Law/book-series/HRLCITIZE NSHIP). She is also associate editor of the Manchester Journal of International Economic Law (https://www. electronicpublications.org/catalogue.php?id¼48#board) xxii About the Editors and member of the editorial boards of the leading peerreviewed journals China Perspectives and Perspectives Chinoises. She is working on the creation of a new journal in international law and development with a Global South orientation. She regularly publishes in the global media and has given a large number of interviews about her research and its impact. Together with Professor James Nedumpara, she is cochair of the South Asia International Economic Law Network (SAIELN), a learned society that endeavors to foster research and publication in international economic law. She has taught all disciplines of international law to graduate and postgraduate students as well as specialized executive courses and programs in Europe, Asia, and Africa. She has also supervised and mentored a very large number of students at master’s and PhD levels. Professor Choukroune is regularly solicited as an independent expert on international economic law and business and human rights issues. She has been an independent adviser to the International Federation of Human Rights (FIDH) and a member of the French National Books Commission (CNL). She is officer of “l’Ordre du mérité” (Knight of the Order of Merit – conferred by the French government). Before joining the University of Portsmouth, she was director of the Centre for Social Sciences and Humanities (CSH), a research unit of the CNRS based in New Delhi (India); associate professor in the Law Faculty at Maastricht University (Netherlands); deputy director of the Institute for Globalization and International Regulation (IGIR); director of the advanced master’s in international economic law (Maastricht University); assistant professor at HEC Paris; consultant for the OECD; lecturer at Paris I Panthéon-Sorbonne; and researcher at the French Centre for Research on Contemporary China (CEFC), a unit of the CNRS in Hong Kong. Professor Choukroune holds a doctorate in international law (summa cum laude – highest honor) from the University Paris I Panthéon Sorbonne and is a qualified lawyer to the Paris Bar. She is fluent in French, English, and Spanish; speaks Chinese and German; and learns Hindi.

Sufian Jusoh  is the Director and Professor of International Trade and Investment at the Institute of Malaysia and International Studies, Universiti Kebangsaan Malaysia. Sufian is the Chair of the ASEAN Integration Grand Challenge for Universiti Kebangsaan Malaysia.

Sufian is also an External Fellow of the World Trade Institute, University of Bern, Switzerland and a Distinguished Fellow at the Institute of Diplomacy and Foreign Relations, Ministry of Foreign Affairs, Malaysia. Sufian is now an International Investment Law Expert at the World Bank Group. Sufian is the Co-Founder of the ASEAN Economic Integration Forum and a Member of the Pacific Economic Cooperation Council Malaysian Chapter. Sufian also plays a key role in the reform of the investment laws in Myanmar, Timor Leste, Laos and the Federated States of Micronesia.

Sufian has been a consultant to many countries and international organisations such as the World Bank, the Asian Development Bank, ASEAN, the World Trade Organisation, the World Intellectual Property Organisation, the United Nations’ Conference on Trade and Development and the United Nations’ Economic Commission for Asia and the Pacific.

Bibliographic Information

Book Title : Handbook of International Investment Law and Policy

Editors : Julien Chaisse, Leïla Choukroune, Sufian Jusoh

DOI : https://doi.org/10.1007/978-981-13-3615-7

Publisher : Springer Singapore

eBook Packages : Law and Criminology , Reference Module Humanities and Social Sciences , Reference Module Business, Economics and Social Sciences

Copyright Information : Springer Nature Singapore Pte Ltd. 2021

Hardcover ISBN : 978-981-13-3614-0 Published: 17 August 2021

eBook ISBN : 978-981-13-3615-7 Published: 16 August 2021

Edition Number : 1

Number of Pages : XXXI, 2788

Number of Illustrations : 2 b/w illustrations, 15 illustrations in colour

Topics : International Economic Law, Trade Law , Sources and Subjects of International Law, International Organizations , IT Law, Media Law, Intellectual Property , Investment Appraisal , Law and Economics

• Publish with us

Policies and ethics

• Find a journal
• Track your research

Brill | Nijhoff

Brill | Wageningen Academic

Brill Germany / Austria

Böhlau

Brill | Fink

Brill | mentis

Brill | Schöningh

Vandenhoeck & Ruprecht

V&R unipress

Open Access

Open Access for Authors

Transformative Agreements

Open Access and Research Funding

Open Access for Librarians

Open Access for Academic Societies

Discover Brill’s Open Access Content

Organization

Stay updated

Corporate Social Responsiblity

Investor Relations

Policies, rights & permissions

Review a Brill Book

Author Portal

How to publish with Brill: Files & Guides

Fonts, Scripts and Unicode

Publication Ethics & COPE Compliance

Data Sharing Policy

Brill MyBook

Ordering from Brill

Author Newsletter

Piracy Reporting Form

Sales Managers and Sales Contacts

Ordering From Brill

Titles No Longer Published by Brill

Catalogs, Flyers and Price Lists

E-Book Collections Title Lists and MARC Records

How to Manage your Online Holdings

LibLynx Access Management

Discovery Services

KBART Files

MARC Records

Online User and Order Help

Rights and Permissions

Latest Key Figures

Latest Financial Press Releases and Reports

Annual General Meeting of Shareholders

Share Information

Specialty Products

Press and Reviews

Share link with colleague or librarian

Stay informed about this journal!

• Get New Issue Alerts
• Get Advance Article alerts
• Get Citation Alerts

International Investment Law and Arbitration: History, Modern Practice, and Future Prospects

International Investment Law is one of the most dynamically growing fields of International Law as shown by the volume of Bilateral Investment Treaties ( bit s), and investment chapters in a growing numbers of regional and mega-regional trade agreements. This paper explores the origin, evolution and operation of International Investment Law. It discusses the main actors, the protections afforded to foreign investments and investors, and the content of modern bit s. The legal issues and challenges International Investment Law faces today are brought into perspective. Particularly, this paper provides an assessment of the measures put forth by the European Union aimed at transforming the traditional investor-State arbitration system to an Investment Court System. An examination of the nafta re-negotiations is also presented, including the impact that ceta , a trade deal between the eu and Canada could have in the outcome of the current re-negotiations.

Access options

Get access to the full article by using one of the access options below.

Buy instant access (PDF download and unlimited online access):

Other access options

Institutional Login

Log in with Open Athens, Shibboleth, or your institutional credentials

Personal login

Log in with your brill.com account

Alvarez , Jose Enrique , The Public International Law Regime Governing International Investment , 344 Collected Courses of the Hague Academy of International Law 193 , ( 2009 ).

• Search Google Scholar
• Export Citation

Amerasinghe , Chittharanjan Felix , L ocal R emedies in I nternational L aw ( 2nd ed . 2004 ).

Bergsten , Eric , Americanization of International Arbitration , 18 P ace I nt’l L. R ev. 289 , ( 2006 ).

Bernasconi-Osterwalder , Nathalie , The Draft Investment Chapter of the Canada-EU Comprehensive Economic and Trade Agreement: A Step Backwards for the EU and Canada? , I nvestment T reaty N ews ( June 26 , 2013 ).

Bierbrauer , Elfriede , N egotiations on the eu -C anada C omprehensive E conomic and T rade A greement ( ceta ) C oncluded , D irectorate -G en. for E xternal P olicies , E uropean P arliament , ( 2014 ).

Birch , Nicholas J. , Laird , Ian , Sabahi , Borzu , International Investment Law Regime and the Rule of Law as a Precondition for International Development , in New Directions in International Economic Law ( Todd Weiler & Freya Baetens eds., 2011 ).

Bishop , R. Doak & Reed , Lucy , Practical Guidelines for Interviewing, Selecting and Challenging Party-Appointed Arbitrators in International Commercial Arbitration , 14 Arb. Int’l 2 ( 1998 ).

Björklund , Andrea K. , Investment Treaty Arbitral Decisions as Jurisprudence Constante , in I nternational E conomic L aw: T he S tate and F uture of the D iscipline ( Colin Picker , Isabella Bunn & Douglas Arner eds., 2008 ).

Borchard , Edwin , the D iplomatic P rotection of C itizens A broad ( 1915 ).

Borchard , Edwin , Minimum Standard of Treatment of Aliens , ( 1939 ) 33 ASIL Proc. 51 .

Bottini , Gabriel , Reform of the Investor-State Arbitration Regime: The Appeal Proposal , reshaping investor-state dispute settlement system, journey for the 21st century ( Jean E Kalicki and Anna Joubin-Bret eds. 2015 ).

Broches , Aron , Development of International Law by the International Bank for Reconstruction and Development , in Proceedings of ASIL 33 , 81 ( 1965 ).

Brown , Chester , Introduction: The Development and Importance of the Model Bilateral Investment Treaty , in C ommentaries on S elected M odel I nvestment T reaties ( Chester Brown ed., 2013 ).

Brownlie , Ian , P rinciples of P ublic I nternational L aw ( 6th ed . 2003 ).

Busse , Matthias , Königer , Jens and Nunnenkamp , Peter , FDI promotion through bilateral investment treaties: more than a bit? , Review of World Economics / Weltwirtschaftliches Archiv , Vol. 146 , No. 1 ( April 2010 ).

Cheng , Tai-Heng , Positivism, New Haven Jurisprudence, and the Fragmentation of International Law , in N ew D irections in I nternational E conomic L aw ( Todd Weiler & Freya Baetens eds., 2011 ).

Commission , Jeffery P. , Precedent in Investment Treaty Arbitration: A Citation Analysis of a Developing Jurisprudence , 24 j. I nt’l A rb. 129 ( 2007 ).

Crawford , James , Brownlie’s Principles of Public International Law ( 8th ed . 2012 ).

Cremades , Bernardo M. , Disputes Arising Out of Foreign Direct Investment in Latin America: A New Look at the Calvo Doctrine and Other Jurisdictional Issues , 59 D isp. R es. J. 78 ( 2004 ).

De Mestral , Armand , Pre-Entry Obligations under International Law, in International Investment Law ( Bungenberg , Griebel , Hobe , Reinisch eds., CH Beck Hart Nomos 2015 ).

De Mestral , Armand , When Does the Exception Become the Rule? Conserving Regulatory Space under CETA , 18 J. I nt’l E con. L. 641, 643 ( 2015 ).

Dolzer , Rudolf & Schreuer , Christoph , Principles of International Investment Law ( 2nd ed ., 2012 ).

Dolzer , Rudolf & Stevens , Margrete , Bilateral Investment Treaties 50 ( 1995 ).

Douglas , Zachary , The Hybrid Foundations of Investment Treaty Arbitration , 74 B rit. Y.B. I nt’l L. 151 , ( 2003 ).

Dugan , Christopher f. , Wallace , Don , Rubins , Noah & Sabahi , Borzu , I nvestor- S tate A rbitration ( Oxford UP 2008 ).

Elkins , Zachary et al . , Competing for Capital: The Diffusion of Bilateral Investment Treaties, 1960–2000 , 2008 u. I ll . L. R ev . 265 ( 2008 ).

Fitch , Stephen D. , The Harriman Manganese Concession in the Soviet Union: Lessons for Today , 9 I nt’l T ax & B us. L. 209 ( 1991 ).

García Amador , F.V. , Fourth Report of the Special Rapporteur, Responsibility of the State for Injuries Caused in its Territory to the Person or Property of Aliens—Measures Affecting Acquired Rights , 2 Y.B. Int’l L. Comm. 1 ( United Nations 1959 ).

Gardner , John , Legal Positivism: 5 ½ Myths , 46 A m J. of J uris . 199 ( 2001 ).

Giorgetti , Chiara , Between Legitimacy and Control: Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals , 49 Geo. Wash. Int’l L. Rev. 205 ( 2017 ).

Goebel , Julius Jr. , The International Responsibility of States for Injuries Sustained by Aliens on Account of Mob Violence , Insurrections and Civil Wars , 8 A m. J. I nt’l L. 802 ( 1914 ).

Gómez-Palacio , Ignacio & Muchlinski , Peter , Admission and Establishment , in T he O xford H andbook on I nternational I nvestment L aw ( Peter Muchlinski , Federico Ortino , & Christoph Schreuer eds., 2008 ).

Gonzalez Garcia , Luis , Making Impossible Investor-State Reform Possible , reshaping investor-state dispute settlement system, journey for the 21st century ( Jean E Kalicki and Anna Joubin-Bret eds. 2015 ).

Gordon , K. & Pohl , J. , Investment Treaties over Time—Treaty Practice and Interpretation in a Changing World ( oecd Publ’n, Working Paper No. 2 , 2015 ).

Grierson-Weiler , Todd J. & Laird , Ian A. , Standards of Treatments , in T he O xford H andbook , in T he O xford H andbook on I nternational I nvestment L aw ( Peter Muchlinski , Federico Ortino , & Christoph Schreuer eds., 2008 ).

Gudgeon , K. , United States Bilateral Investment Treaties: Comments on Their Origin, Purposes, and General Treatment Standards , 4 I nt’l T ax & B us. L. 105 ( 1986 ).

Gus Van , Harten , The Public-Private Distinction in the International Arbitration of Individual Claims Against the State , 56 International & Comparative Law Quarterly (ICLQ) 371 ( 2007 ).

Hackworth , Green H. , 3 Digest of International Law 655 ( 1942 ).

Harvard Law School Research in International Law , The Law of Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners , 23 A m. J. I nt’l L., S pecial S upp . 131 ( 1929 ).

Hawkins , Harry C. , Commercial Treaties and Agreements: Principles and Practice ( New York : Rinehart & Company Inc. , 1951 ).

Houde , Marie-France & Yannaca-Small , K. Relationships between International Investment Agreements ( oecd Publ’n Working Paper No. 1, 2004 ).

Houde , Marie-France , Novel Features in Recent OECD Bilateral Investment Treaties, in International Investment Perspectives ( 2006 ).

Jackson , John H. , Davey , William J. & Sykes , Alan O. , Legal Problems of International Economic Relations ( 4th ed . 2001 ).

Kahale , III , George , Is Investor-State Arbitration Broken? TDM , October 2012 .

Kahn , Philip and Wälde , Thomas , Report for the Hague Academy 2004 in connection with the program “New Aspects of International Investment Law / Les aspects nouveaux du droit des investissements internationaux” ( Ph. Kahn and T. W. Wälde eds., 2004 ).

Kaufmann-Kohler , Gabrielle , Arbitral Precedent: Dream, Necessity or Excuse? , 23 A rb. I nt’l 357 ( 2007 ).

Kingsbury , Benedict & Schill , Stephan , Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law ( September 2 , 2009 ), nyu School of Law, Public Law Research Paper No. 09 – 46 .

Kjos , Hege Elisabeth , Applicable Law in Investor-State Arbitration: The Interplay between National and International Law ( Oxford University Press , 2013 ).

Kurtz , Jurgen , A General Investment Agreement in the WTO—Lessons from Chapter 11 of NAFTA and the OECD Multilateral Agreement on Investment , 23 U. Pa. J. Int’l L. 756 ( 2002 ).

Laird , Ian & Askew , Rebecca , Finality Versus Consistency: Does Investor-State Arbitration Need an Appellate System , 7 J. A pp . P rac. & P rocess 285 ( 2005 ).

Lamm , Carolyn B. , Greenwald , Brody K. , and Young , Kristen M. , From World Duty Free to Metal-Tech: A Review of International Investment Treaty Arbitration Cases Involving Allegations of Corruption , 29 ( 2 ) ICSID Review 328 ( 2014 ).

Lipstein , K. , Conflict of Laws before International Tribunals , 29 transactions of the grotius society 51 ( 1944 ).

Llamzon , Aloysius , Corruption in International Investment Arbitration ( Oxford 2014 ).

Lowenfeld , Adreas F. , I nternational E conomic L aw ( 2nd ed. 2008 ).

Mackaay , Ejan History of Law and Economics , in 1 E ncyclopedia of L aw and E conomics 65 ( Boudewijn Bouckaert & Gerrit De Geest eds., 2000 ).

Manning-Cabrol , Denise , The Imminent Death of the Calvo Clause and the Rebirth of the Calvo Principle: Equality of Foreign and National Investors , 26 L aw & P ol’y I nt’l B us. 1169 ( 1995 ).

Marboe , Irmgard calculation of compensation and damages in international investment law ( OUP Oxford , 2009 ).

McLachlan , Campbell , Shore , Laurence & Weiniger , Matthew , I nternational I nvestment A rbitration: S ubstantive P rinciples ( Oxford University Press , 2007 ).

Mitchell , Nancy , T he D anger of D reams: G erman and A merican I mperialism in L atin A merica ( University of North Carolina Press , 1999 ).

Monagas , Yessika , U.S. Property in Jeopardy: Latin American Expropriations of U.S. Corporations’ Property Abroad , 34 H ous. J. I nt’l L. 455 ( 2012 ).

Montt , Santiago , State Liability in Investment Treaty Arbitration: Global Constitutional Law and Administrative Law In The BIT Generation ( 2009 ).

Nafziger , Wayne E. , T he E conomics of D eveloping C ountries ( 3rd ed. 1997 ).

Newcombe , Andrew and Paradell , Lluís , Law and Practice of Investment Treaties: Standards of Treatment ( Kluwer Law International 2009 ).

Nussbaum , Arthur , Arbitration Between the Lena Goldfields Ltd. and the Soviet Government , 36 C ornell L. R ev. 31 ( 1950 ).

Oppenheim , Lassa , I nternational L aw: A T reatise 111 ( 4th Ed. , 1926 ).

Parlett , Kate , T he I ndividual in the I nternational L egal S ystem: C ontinuity and C hange in I nternational L aw ( Cambridge : Cambridge University Press , 2011 ).

Park , Eun Young , Appellate Review in Investor-State Arbitration, reshaping investor-state dispute settlement system, journey for the 21st century ( Jean E Kalicki and Anna Joubin-Bret eds. 2015 ).

Parra , Antonio , The History of ICSID ( Oxford 2012 ).

Paulsson , Jan , Arbitration without Privity , ICSID Review ( 1995 ).

Paulsson , Jan , Moral Hazard in International Dispute Resolution , TDM , June 10 , 2010 .

Pauwelyn , Joost , At the Edge of Chaos? Foreign Investment Law as a Complex Adaptive System, How It Emerged and How It Can Be Reformed , 29 ICSID R ev. 372 ( 2014 ).

Ralston , Jackson Harvey , T he L aw and P rocedure of T ribunals B eing a R ésumé of the V iews of A rbitrators Q uestions A rising under the L aw of N ations ( Stanford University Press rev. ed. 1926 ).

Reisman , Michael W. , The View from the New Haven School of International Law, A merican S ociety of I nternational L aw , P roceedings of the A nnual M eeting 118 ( 1992 ).

Reinisch , August , & Malintoppi , Loretta , Methods of Dispute Resolution , in T he O xford H andbook on I nternational I nvestment L aw ( Peter Muchlinski , Federico Ortino , & Christoph Schreuer eds., 2008 ).

Reisman , Michael , & Arsanjani , Mahnoush , Interpreting Treaties for the Benefit of Third Parties: The “Salvors Doctrine” and the Use of Legislative History in Investment Treaties , 104 A m. J. I nt’l L. 597 ( 2010 ).

Ripinsky , Sergey and Williams , Kevin damages in international investment law ( BIILC , 2008 ).

Roberts , Anthea , Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System , 107 A m. J. I nt’l L. 45 ( 2013 ).

Root , Elihu , The Basis of Protection to Citizens Residing Abroad , 4 A m. J. I nt’l L. 517 ( 1910 ).

Roth , Andreas H. , The minimum standard of international law applied to aliens ( Leiden : A.W. Sijthoff , 1949 ).

Sabahi , Borzu , compensation and restitution in investor-state arbitration: principles and practice ( OUP Oxford , 2011 ).

Sabahi , Borzu & Duggal , Kabir , Philip Morris Brands Sarl v. Oriental Republic of Uruguay International Decisions , 108 A m. J. I nt’l L. 67 ( 2014 ).

Schill , Stephan W. , The Multilateralization of International Investment Law ( Cambridge University Press , 2009 ).

Schreuer , Christoph , Consent to Arbitration, in T he O xford H andbook , in T he O xford H andbook on I nternational I nvestment L aw ( Peter Muchlinski , Federico Ortino , & Christoph Schreuer eds., 2008 ).

Schreuer , Christoph , Malintoppi , Loretta , Reinisch , August , and Sinclair , Anthony , The ICSID Convention: A Commentary ( 2nd ed. , Cambridge , 2009 ).

Schwarzenberger , Georg , The Abs-Shawcross Draft Convention on Investments Abroad: A Critical Commentary , 9 J. P ub . L. 147 ( 1960 ).

Shihata , Ibrahim F. I. MIGA and F oreign I nvestment ( 1988 ).

Sikkink , Kathryn , Reconceptualizing Sovereignty in the Americas: Historical Precursors and Current Practices , 19 H ous. J. I nt’l L. 705 ( 1997 ).

Simma , Bruno & Paulus , Andreas L. , Symposium on Method in International Law: The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View , 93 A m. J. I nt’l L. 302 ( 1999 ).

Skovgaard Poulsen , Lauge N. , book review [ Karl P. Sauvant , and Lisa E. Sachs . (eds). The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows. ] Eur J Int Law ( 2009 ).

Sloss , David , The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties , 24 Yale J. Int’l L. 129 ( 1999 ).

Sornarajah , M. , R esistance and C hange in the I nternational L aw of F oreign I nvestment ( 2015 ).

Sourgens , Frédéric G. a N ascent C ommon L aw ( Brill | Nijhoff , 2015 ).

Spiegel , Hans W. , Origin and Development of Denial of Justice , 32 A m. J. I nt’l L. 63 ( 1938 ).

Steingruber , Andrea Marco , Consent in International Arbitration ( Oxford 2012 ).

unctad , National Treatment , in UNCTAD S eries on I ssues in I nternational I nvestment A greements II ( 1999 ).

unctad , W orld I nvestment R eport— F oreign direct investment and the challenge of development ( 1999 ).

unctad , Admission and Establishment, in UNCTAD S eries on I ssues in I nternational I nvestment A greements ( 2002 ).

unctad , Most-Favoured Nation Treatment , in UNCTAD S eries on I ssues in I nternational I nvestment A greements II ( 2010 ).

unctad , Fair and Equitable Treatment , in UNCTAD S eries on I ssues in I nternational I nvestment A greements II ( 2012 ).

unctad , Expropriation: A Sequel, in UNCTAD S eries on I ssues in I nternational I nvestment A greements II ( 2012 ).

unctad , Reform of Investor-State Dispute Settlement in Search of a Roadmap , Issue N. 3 ( June 2013 ).

unctad , W orld I nvestment R eport— R eforming I nternational I nvestment G overnance ( 2015 ).

Van Haersolte-Van Hof , Jacomijn J. , & Hoffmann , Anne K , The Relationship Between International Tribunals and Domestic Courts , in T he O xford H andbook on I nternational I nvestment L aw ( Peter Muchlinski , Federico Ortino , & Christoph Schreuer eds., 2008 ).

Vandevelde , Kenneth J. , The Bilateral Investment Treaty Program of the United States , 21 C ornell I nt’l L.J. 201 ( 1988 ).

Vandevelde , Kenneth J. Reassessing the Hickenlooper Amendment , 29 V a. J. I nt’l L. 115 ( 1988 ).

Vandevelde , Kenneth J. , The Political Economy of a Bilateral Investment Treaty , 92 A m . J. I nt’l L. 621 ( 1998 ).

Vattel , E. the L aw of N ations, or the P rinciples of N atural L aw ( Béla Kapossy & Richard Whatmore eds. 2008 .

Veeder , V.V. , The Lena Goldfields Arbitration: The Historical Roots Of Three Ideas , 47 I nt’l & C omp. L.Q. 718 ( 1998 ).

Vesel , Scott , Clearing A Path Through A Tangled Jurisprudence: Most-Favored-Nation Clauses and Dispute Settlement Provisions in Bilateral Investment Treaties , 32 Y ale J. I nt’l L. 125 ( 2007 ).

Waibel et al . ( eds ), The Backlash against Investment Arbitration: Perceptions and Reality ( Kluwer Law , 2010 ).

Wälde , Thomas , Investment Arbitration as a Discipline for Good Governance: Overview and Epilogue, [Oil, Gas & Energy Law] , issue 2 , 2004 .

Wälde , Thomas ‘The “Umbrella” Clause in Investment Arbitration: A Comment on Original Intentions and Recent Cases’ , 6 J. World Investment & Trade 183 ( 2005 ).

Walker Jr. , Herman , Modern Treaties of Friendship , Commerce and Navigation , 42 M inn. L. R ev . 805 ( 1958 ).

Wallace Jr. , Don , Case Study under nafta : Lessons for the Wise? , in arbitrating foreign investment disputes: procedural and substantive legal aspects ( Stefan Michael Kroll and Norbert Horn eds. Kluwer Law International 2004 ).

Wallace , Jr. , Don , Fair and Equitable Treatment and Denial of Justice: Loewen v us and Chattin v Mexico , in I nternational L aw and A rbitration: L eading C ases from the ICSID, NAFTA, B ilateral T reaties and C ustomary I nternational L aw ( Todd Weiler ed., 2005 ).

Weiler , Todd , I nterpretation of I nternational I nvestment L aw ( Martinus Nijhoff , 2013 ).

Wilson , Robert R. , U nited S tates C ommercial T reaties and I nternational L aw ( New Orleans : The Hauser Press , 1960 ).

Wong , Jarrod , Umbrella Clauses in Bilateral Investment Treaties: Of Breaches of Contract, Treaty Violations, and the Divide Between Developing and Developed Countries in Foreign Investment Disputes , Geo. Mason L. Rev. 135 ( 2006 ).

Yackee , Jason W. , Bilateral Investment Treaties, Credible Commitment, and the Rule of (International) Law: Do BITs Promote Foreign Direct Investment? , 42 Law & Society Review 805 ( 2008 ).

Abal Hermanos S.A. v. Uruguay, icsid Case No. arb /10/7, Decision on Jurisdiction (July 2, 2013).

aes Summit Generation Limited and aes -Tisza Erömü Kft v. The Republic of Hungary, icsid Case No. arb /07/22, iic 455 (2010), Award (17 September, 2010).

Alasdair Ross Anderson and Others v Costa Rica, icsid Case No ar b ( af )/07/3, iic 437, Award (May 10th, 2010).

Americas, Inc. v. The United Mexican States, icsid Case No. arb ( af )/04/5 (Rovine Separate Opinion, 20 September 2007).

Antoine Goetz and others v Republic of Burundi , icsid Case No arb /01/2, Award, (June 21, 2012).

Aramco v. Saudi Arabia (1963) 27 i.l.r. 117.

Asian Agricultural Products Ltd. ( aapl ) v. Republic of Sri Lanka. Case No. arb /87/3, 30 ilm 577 (1991).

Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, icsid Case No. arb /03/29, iic 27 (2005), Decision on Jurisdiction, (November 14th, 2005).

bp Exploration Co (Libya) Ltd. v. Government of the Libyan Arab Republic, 53 ilr 297 (October 10, 1973).

Burlington Resources Inc. v. Republic of Ecuador, icsid Case No. arb /08/5, Decision on the Proposal for Disqualification of Professor Francisco Orrego Vicuña (13 De. 2013).

Burlington Resources Inc. v. Republic of Ecuador, icsid Case No. arb /08/5, Decision on Ecuador’s Counterclaims (February 7th, 2017).

cme Czech Republic B.V. v. The Czech Republic, Ad hoc Tribunal ( uncitral ) Final award and separate opinion, (March 14th, 2003).

Government of the State of Kuwait v. The American Independent Oil Company ( aminoil ) 21 ilm 976 (March 24, 1982).

Inceysa Vallisoletane, sl v El Salvador, Award, icsid Case No arb /03/26, iic 134, Award, (August 2, 2006).

Inmaris Perestroika Sailing Maritime Services GmbH and others v Ukraine, icsid Case No. arb /08/8, Award (Mar. 1, 2012).

Lauder v. Czech Republic, 9 icsid Rep. 62 (2001).

Libyan American Oil Company v Libyan Arab Republic, 62 ilr 140 (April 12, 1977).

Loewen Group, Inc. v. United States of America, icsid Case No. ar b ( af )/98/3, Award (June 26, 2003).

Maffezini v. Spain, icsid Case No. arb /97/7 (Jan. 25, 2000), 5 icsid Rep. 396 (2002).

Methanex Corporation v. United States of America, uncitral Award (August 3rd, 2005).

Malaysian Historical Salvors v. Malaysia, icsid Case No. arb /05/10, Decision on Application for Annulment (Apr. 16, 2009).

mtd Equity Sdn. Bhd. and mtd Chile s.a. v. Republic of Chile, icsid Case No. arb /01/7, iic 174, Award (May 25th, 2004).

Neer v. United Mexican States, 4 R. Int’l Arb. Awards 60 (Mex- u.s. Cl. Comm’n Oct. 15, 1926).

Occidental Petroleum Corp and Occidental Exploration and Production Company v Republic of Ecuador, icsid Case No. arb /06/11, Award, (Oct. 5th, 2012).

Perenco Ecuador Ltd. v. The Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador), icsid Case No. arb /08/6, Interim Decision on the Environmental Counterclaim (August 11, 2015).

Petroleum Development (Trucial Coast) Ltd. v. Sheikh of Abu Dhabi (1951) 18 i.l.r. 144, (1951) 18 I. L. R. 144.

Philip Morris Brands Sàrl, Philip Morris Products s.a. and Abal Hermanos s.a. v. Oriental Republic of Uruguay, icsid Case No. arb /10/7 (2016).

Phoenix Action, Ltd. v. The Czech Republic, icsid Case No. arb /06/5 (April 15th, 2009).

Plama Consortium Limited v. Republic of Bulgaria, icsid Case No. arb /03/24, iic 338, Award (August 27th, 2008).

Romak S.A. (Switzerland) v . The Republic of Uzbekistan , uncitral , pca Case No. AA280 (2009).

Ruler of Qatar v. International Marine Oil. Co. Ltd, (1953) 20. ilr 534.

Salini Costruttori s.p.a. v. Morocco, icsid Case No. arb /00/4, Decision on Jurisdiction (July 23, 2001), 42 i.l.m. 609 (2003).

Société Général de Surveillance s.a. v. Pakistan, icsid Case No. arb /01/13, Objections to Jurisdiction, (Aug. 5, 2003), 18 icsid Rev. 301 (2003).

Société Général de Surveillance s.a. v. Philippines, icsid Case No. arb /02/6, Objections to Jurisdiction, 136–55 (Jan. 29, 2004), 8 icsid Rep. 518 (2005).

Texaco Overseas Petroleum Company and California Asiatic Oil Company v Government of Libya, (Preliminary Award), 53 ilr 389 (Nov. 27, 1975).

Tidewater Inc., Tidewater Investment srl , Tidewater Caribe, C.A. , et al. v. The Bolivarian Republic of Venezuela, icsid Case No. arb /10/5, Decision on Claimants’ Proposal to Disqualify Professor Brigitte Stern, Arbitrator (23 Dec. 2010).

Venezuela Holdings v. Venezuela, icsid Case No. arb /07/27, Decision on jurisdiction (June 10, 2010).

World Duty Free Company Limited v. Republic of Kenya, icsid Case No. arb /00/7, Award (October 2006).

Yukos Universal Limited (Isle of Man) v. The Russian Federation, uncitral , pca Case N. aa 227, Final Award (July 18th 2014).

Anglo-Iranian Oil Co. ( u.k. v. Iran), 1952 i.c.j. 93 (July 22).

Barcelona Traction Light and Power (Belg. v. Spain) 1964 i.c.j. 6 (July 24).

Case Concerning The Factory at Chorzow, 1928 p.c.j.i. (ser. A) No. 17 (Sept. 13).

Elettronica Sicula S.p.A. ( elsi ) ( u.s. v. It.), 1989 i.c.j. 15 (July 20).

Factory at Chorzów, Judgment 1928 p.c.i.j. (ser. A) No. 17 p. 47. (Sept. 13).

The Mavrommatis Palestine Concessions, 1924 p.c.j.i. (ser. A) No. 2 (Aug. 30).

Agreement between the Government of the Republic of Costa Rica and the Government of Canada for the Protection and Promotion of Investment (18 March 1998), entered into force 29 September 1999 (Costa Rica-Canada bit ).

Agreement between the Federal Republic of Germany and the Republic of the Philippines on the Promotion and Reciprocal Protection of Investments (April 18, 1997) entered into force 29 September 1999 (Germany-Philippines bit ).

Agreement Between the Government of Japan and the Government of the Russian Federation Concerning the Promotion and Protection of Investment, Japan-Russ., Nov. 13, 1998.

Agreement for the Reciprocal Protection of Investments signed between the Republic of El Salvador and the Kingdom of Spain, (14 February 1995) 1983 unts 349, entered into force 20 February 1996.

Bilateral Investment Treaty between the Government of India and the Government of [Country] Model bit.

Convention on the Settlement of Investment Disputes between States and Nationals of Other States adopted Mar. 18, 1965, 575 u.n.t.s. 159.

Havana Charter for an International Trade Organization, u.n. Doc. E/Conf. 2/78, at 14 (Mar. 24, 1948).

North American Free Trade Agreement, Dec. 8–Dec. 17, 1993, 32 i.l.m. 289 (1993).

oecd Draft Convention on Protection of Foreign Property, 7 i.l.m. 117 (1967).

The Common Market for Eastern and Southern Africa ( comesa ) Investment Agreement (2007).

The Comprehensive Economic and Trade Agreement, between Canada, the European Union and its Member States, E uropean C omm’n, C onsolidated ceta T ext (2014).

Energy Charter Treaty, 2080 unts 95 (1994).

eu —Vietnam Free Trade Agreement (Open for signature Dec. 2 2015, not yet in effect).

eu —Mexico Free Trade Agreement (updated text as of April 2017, not in effect).

-France-Ecuador Bilateral Investment Treaty (1994).

Southern African Development Community ( sadc ) Model bit (July 2012).

Trans-Pacific Partnership ( tpp ) Agreement (Opened for signature February 4 2016, not yet in effect).

Transatlantic Trade and Investment Partnership: Trade in Services, Investment and E Commerce 17, European Commission Draft Text ttip (updated as of 2015).

Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and the

United States of America (Jay Treaty), us - u.k. , Nov. 19, 1794, 8 Stat. 116, T.S. 105, 12 Bevans 13.

Treaty of Friendship, Commerce and Navigation, Nov. 28, 1956, u.s.-s. Kor., art. xxiv , 8 u.s.t. 2217, t.i. a.s. No. 3947.

Treaty of Friendship, Establishment and Navigation, Feb. 23, 1962, U.S.-Lu., art. xvii , 14 u.s.t. 251, t.i. a.s. No. 5306.

Treaty of Friendship, Commerce and Navigation, Aug. 23, 1951, U.S.-Isr., art. xxiv , 5 u.s.t. 550, t.i. a.s. No. 2948.

Treaty between the Government of the United States of America and the Government of [Country] Concerning the Encouragement and Reciprocal Protection Investment [ us Model bit 2012].

U.S.-Colombia Trade Promotion Agreement, U.S.-Colom., Nov. 22, 2006.

U.S.-Peru Trade Promotion Agreement, U.S.-Peru, April 12, 2006.

Charter of Economic Rights and Duties of States, g.a. Res. 3281 ( xxix ), u.n. Doc. A/9631 (Dec. 12, 1974).

Declaration on the Establishment of a New International Economic Order, g.a. Res. 3201 (S-VI), u.n. Doc. A/ res /S-6/3201 (May 1, 1974).

Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, un gaor , 56th Sess., Supp. No. 10, at 43, un Doc. A/56/10 (2001).

uncitral Arbitration Rules, g.a. Res. 65/22, un Doc. A/ res /65/22 (2010).

u.n. Secretary-General, The Promotion of the International Flow of Private Capital, u.n. Doc. E/3325 (1960).

E ncyclopædia B ritannica , http://www.britannica.com/event/Don-Pacifico-affair

European Commission website , https://ec.europa.eu/

Global Affairs Canada, NAFTA Free Trade Commission , http://www.international.gc.ca/

ICSID website , https://icsid.worldbank.org/

I nvestment P olicy H ub , http://investmentpolicyhub.unctad.org/IIA/AdvancedSearchBITResults

Office of the United States Trade Representatives (USTR): Summary of Objectives for the NAFTA Renegotiation , https://ustr.gov/sites/default/files/files/Press/Releases/NAFTAObjectives.pdf

Regional Comprehensive Economic Partnership (RCEP) , http://asean.org/

Trade in Services Agreement (TiSA) , https://ustr.gov/TiSA

T he G roup of 77 , http://www.g77.org/doc/

the new york times , https://www.nytimes.com

the washington post , https://www.washingtonpost.com

United Nations Audiovisual Library of International Law , http://legal.un.org/avl/ha/adp/adp.html

U.S. Department of Commerce , https://www.commerce.gov

Content Metrics

Reference Works

Primary source collections

COVID-19 Collection

How to publish with Brill

Open Access Content

Contact & Info

Sales contacts

Publishing contacts

Stay Updated

Newsletters

Social Media Overview

Terms and Conditions  

Privacy Statement  

Cookie Settings  

Accessibility

Legal Notice

Terms and Conditions   |   Privacy Statement   |  Cookie Settings   |   Accessibility   |  Legal Notice   |  Copyright © 2016-2024

Copyright © 2016-2024

• [195.158.225.230]
• 195.158.225.230

Character limit 500 /500

• Architecture and Design
• Asian and Pacific Studies
• Business and Economics
• Classical and Ancient Near Eastern Studies
• Computer Sciences
• Cultural Studies
• Engineering
• General Interest
• Geosciences
• Industrial Chemistry
• Islamic and Middle Eastern Studies
• Jewish Studies
• Library and Information Science, Book Studies
• Life Sciences
• Linguistics and Semiotics
• Literary Studies
• Materials Sciences
• Mathematics
• Social Sciences
• Sports and Recreation
• Theology and Religion
• Publish your article
• The role of authors
• Promoting your article
• Abstracting & indexing
• Publishing Ethics
• Why publish with De Gruyter
• How to publish with De Gruyter
• Our book series
• Our subject areas
• Your digital product at De Gruyter
• Contribute to our reference works
• Product information
• Tools & resources
• Product Information
• Promotional Materials
• Orders and Inquiries
• FAQ for Library Suppliers and Book Sellers
• Repository Policy
• Free access policy
• Open Access agreements
• Database portals
• For Authors
• Customer service
• People + Culture
• Journal Management
• How to join us
• Working at De Gruyter
• Mission & Vision
• De Gruyter Foundation
• De Gruyter Ebound
• Our Responsibility
• Partner publishers

Your purchase has been completed. Your documents are now available to view.

Justice and the Reform of International Investment Law

This paper focuses on the reforms proposed to investment law, in particular in relation to dispute resolution, from the standpoint of justice. It sets out the ways that the proposed adoption of a standing investment court with an appellate instance would impact the justice of the international investment law system by focusing on the notion of justice as fairness. By assessing the impacts of the proposed changes’ limits on the discourse about investment law, I argue that the effects of the proposed reforms will dampen tribunal exchanges about contentious legal interpretations. This will not move the system closer to a fully just international order because the core values are not ones of discourse but rather those of protecting state sovereignty. Justice, if it follows, will be only that which fits within the framework of heightened sovereign power.

Anghie, A., Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004). 10.1017/CBO9780511614262 Search in Google Scholar

Bacchus, James and Simon, Lester, “The Rule of Precedent and the Role of the Appellate Body,” 54 Journal of World Trade , no. 2 (2020). 10.54648/TRAD2020008 Search in Google Scholar

Bazelon, Emily, “ The Place of Women on the Court ,” The New York Times, July 7, 2009. Search in Google Scholar

Bhagwati, N., US Trade Policy: The Infatuation with FTAs , Columbia University Department of Economics Discussion Paper 726 (28 February 2011), available at: < https://academiccommons.columbia.edu/doi/10.7916/D8CN7BFM >, accessed September 22, 2020. Search in Google Scholar

Blumm, Michael C. and Lucus Ritchie, Lucas’s Unlikely Legacy: The Rise of Background Principles as Categorical Takings Defenses, 29 Harvard Environmental Law Review (2005). Search in Google Scholar

Boeglin, Nicolas, “ICSID and Latin America: Criticisms, Withdrawals and Regional Alternatives,” Bilaterals (June 2013) , available at: < https://www.bilaterals.org/?icsid-and-latin-america-criticisms&lang=fr >, accessed October 3, 2020. Search in Google Scholar

Carson, H.L., “ Great Dissenting Opinions ,” 17 Annual Report of the American Bar Association (1894). Search in Google Scholar

Columbia Center on Sustainable Investment , Costs and Benefits of Investment Treaties: Practical Considerations for States (Policy Paper, March 2018). Search in Google Scholar

Dumberry, Patrick, “ The Emergence of a Consistent Case Law: How NAFTA Tribunals have Interpreted the Fair and Equitable Treatment Standard ,” Kluwer Arbitration Blog, October 30, 2013, available at: < http://arbitrationblog.kluwerarbitration.com/2013/10/30/the-emergence-of-a-consistent-case-law-how-nafta-tribunals-have-interpreted-the-fair-and-equitable-treatment-standard/ >, accessed September 24, 2020. Search in Google Scholar

Fach Gomez, Katia, Latin America and ICSID: David versus Goliath? , SSRN (2010), available at: < https://ssrn.com/abstract=1708325 >, accessed October 3, 2020. 10.2139/ssrn.1708325 Search in Google Scholar

Fortier, L. Yves and Stephen L. Drymer, Indirect Expropriation in the Law of International Investment: I Know It When I See It, or Caveat Investor , 19 ICSID Review, no. 2 (2004). 10.1093/icsidreview/19.2.293 Search in Google Scholar

Franck, Thomas M., Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995). Search in Google Scholar

Franck, Thomas M., Fairness in Fairness Discourse , 95 Proc. Annual Meeting of the American Society of International Law, April 4-7, 2001. 10.1017/S027250370005686X Search in Google Scholar

Gaspar, Carlito M., Habermas’ Theory of Communicative Action, 47 Philippine Studies , no. 3 (1999). Search in Google Scholar

Gordon, K. and J. Pohl, Investment Treaties over Time – Treaty Practice and Interpretation in a Changing World, OECD Working Papers on International Investment , 2015/02 (OECD Publishing, 2015). 10.2139/ssrn.2555606 Search in Google Scholar

Habermas, Jürgen, Theorie des kommunikativen Handels (Suhrkamp, 1992). Search in Google Scholar

Habermas, Jürgen, Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaates , 2d ed. (Suhrkamp, 1992). Search in Google Scholar

Hinkle, Rachael K. and Michael J. Nelson, How to Lose Cases and Influence People, 8 Statistics, Politics and Policy , no. 2 (2017), available at: < https://doi.org/10.1515/spp-2017-0013 >, accessed December 24, 2020. Search in Google Scholar

Hsu, Locknie, “ Rule of Law and Foreign Investment ,” Rule of Law Symposium 2014: The importance of the rule of law in promoting development (2015), available at: < https://ink.library.smu.edu.sg/sol_research/2295 >, accessed October 2, 2020). Search in Google Scholar

Kinnear, Meg et al.. (eds.), Building International Investment Law: The First 50 Years of ICSID (Alphen aan den Rijn: Wolters Kluwer, 2016). Search in Google Scholar

Landes, W.M. and Richard A. Posner, Adjudication as a Private Good, 8 Journal of Legal Studies (1979). 10.3386/w0263 Search in Google Scholar

Lloyd, Peter, “ The Variable Geometry Approach to International Economic Integration ,” paper prepared for the Seventh APEF Conference (Iran, 3-5 November 2008), available at: < https://www.researchgate.net/publication/228788536_The_Variable_Geometry_Approach_to_International_Economic_Integration >, accessed August 29, 2020. Search in Google Scholar

Margulies, Joseph, “Justice Ginsburg’s Parting Gift,” Verdict , September 21, 2020, available at: < https://verdict.justia.com/2020/09/21/justice-ginsburgs-parting-gift?utm_source=verdict-newsletter&utm_medium=email&utm_campaign=2020-09-21&utm_content=text-view-in-browser-1 >, accessed September 22, 2020. Search in Google Scholar

de Mestral, Armand, “Introduction,” in A. de Mestral (ed.), Second Thoughts: Investor State Arbitration between Developed Democracies (McGill-Queen’s Univ. Press, 2017). Search in Google Scholar

Nadakavukaren Schefer, Krista, International Investment Law , 3d ed. (2020). Search in Google Scholar

Nichols, Shawn, “Expanding Property Rights Under Investor-State Dispute Settlement (ISDS): Class Struggle in the Era of Transnational Capital,” 25 Review of International Political Economy , no. 2 (2018). 10.1080/09692290.2018.1431561 Search in Google Scholar

Noilhac, Amélie, “Renewable Energy Investment Cases Against Spain and the Quest for Regulatory Consistency,” 71 Questions of International Law (2020). Search in Google Scholar

OHCHR , International Trade: UN Expert Calls for Abolition of Investor-State Dispute Settlement Arbitrations , available at: < https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16650&LangID=E >. Search in Google Scholar

Petersmann, Ernst-Ulrich, How Should WTO Members React to Their WTO Crises?, 18 World Trade Review , no. 3 (2019). 10.1017/S1474745619000144 Search in Google Scholar

Puig, Sergio and Anton Strezhnev, The David Effect and ISDS, 28 European Journal of International Law , no. 3 (2017). 10.1093/ejil/chx058 Search in Google Scholar

Rawls, John, A Theory of Justice (Cambridge, MA: Harvard Univ. Press, 1971). Search in Google Scholar

Rawls, John, Justice as Fairness, 67 The Philosophical Review , no. 2 (1958). 10.2307/2182612 Search in Google Scholar

Roberts, Anthea, Incremental, Systemic and Paradigmatic Reform of Investor-State Arbitration, 113 American Journal of International Law (2018). 10.2139/ssrn.3189984 Search in Google Scholar

Schneiderman, David, The Coloniality of Investment Law , SSRN (2019), available at: < https://ssrn.com/abstract=3392034 >, accessed September 23, 2020. 10.2139/ssrn.3392034 Search in Google Scholar

Sornarajah, Muthucumaraswamy, The International Law on Foreign Investment , 4th edition (Cambridge: Cambridge University Press, 2017). Search in Google Scholar

Sattorova, Mavluda, The Impact of Investment Treaty Law on Host States: Enabling Good Governance? (Hart Publishing, 2018). Search in Google Scholar

Schill, Stephan W., Maffezini v. Plama: Reflections on the Jurisprudential Schism in the Application of Most-Favored-Nation Clauses to Matters of Dispute Settlement , Amsterdam Law School Research Paper No. 2017-12 (February 23, 2017). Search in Google Scholar

Schreuer, Christoph, “ The Concept of Expropriation under the ETC and other Investment Protection Treaties ,” (revised 20 May 2005) para. 79, available at: < https://www.univie.ac.at/intlaw/pdf/csunpublpaper_3.pdf >, accessed September 23, 2020. Search in Google Scholar

UNCITRAL , Possible reform of investor-State dispute settlement (ISDS) Selection and appointment of ISDS tribunal members: Note by the Secretariat , A/CN.9/WG.III/WP.169 (31 July 2019). Search in Google Scholar

UNCITRAL , Possible reform of investor-State dispute settlement (ISDS) Appellate and multilateral court mechanisms: Note by the Secretariat , A/CN.9/WG.III/WP.185 (29 November 2019). Search in Google Scholar

UNCTAD , IIA Issues Note , Issue 2 (July 2020). Search in Google Scholar

UNCTAD , “Reforming Investment Dispute Settlement: A Stocktaking,” IIA Issues Note , Issue 1 (March 2019). Search in Google Scholar

UNCTAD , “ Investment Dispute Settlement Navigator ,” Investment Policy Hub, available at: < https://investmentpolicy.unctad.org/investment-dispute-settlement?status=1 >, accessed September 25, 2020. Search in Google Scholar

van Harten, Gus, Investment Treaty Arbitration and Public Law (Oxford Univ. Press, 2008). 10.1093/acprof:oso/9780199552146.001.0001 Search in Google Scholar

van Harten, Gus, “ A Case for an International Investment Court ,” Society of International Economic Law (SIEL) Inaugural Conference 2008 Paper (June 30, 2008), available at: < https://ssrn.com/abstract=1153424 >, accessed October 3, 2020. Search in Google Scholar

Vascianni, Stephen, “The Fair and Equitable Treatment Standard in International Investment Law and Practice,” in British Yearbook of International Law 1999 (Oxford University Press, 2000). 10.1093/bybil/70.1.99 Search in Google Scholar

Viner, Jacob, The Customs Union Issue (Carnegie Endowment for International Peace, 1950). Search in Google Scholar

Waelde, Thomas and Abba Kolo, Environmental Regulation, Investment Protection and ‘Regulatory Taking’ in International Law, 50 International and Comparative Law Quarterly (2001). 10.1093/iclq/50.4.811 Search in Google Scholar

The World Bank , World Development Report 2005: A Better Investment Climate for Everyone (Washington, D.C.: The World Bank, 2005). Search in Google Scholar

Yacoub, Amin R., The Standard of Due Diligence in Full Protection and Security Obligation: A Pro-Investor Standard?, SSRN (2018), available at: < https://ssrn.com/abstract=3191547 >, accessed October 3, 2020. 10.2139/ssrn.3191547 Search in Google Scholar

© 2021 Walter de Gruyter GmbH, Berlin/Boston

• X / Twitter

Supplementary Materials

Please login or register with De Gruyter to order this product.

Journal and Issue

Articles in the same issue.

Library electronic resources outage May 29th and 30th

Between 9:00 PM EST on Saturday, May 29th and 9:00 PM EST on Sunday, May 30th users will not be able to access resources through the Law Library’s Catalog, the Law Library’s Database List, the Law Library’s Frequently Used Databases List, or the Law Library’s Research Guides. Users can still access databases that require an individual user account (ex. Westlaw, LexisNexis, and Bloomberg Law), or databases listed on the Main Library’s A-Z Database List.

• Georgetown Law Library
• Foreign & International Law

International Investment Law Research Guide

• Secondary Sources: Introductory
• Introduction
• Secondary Sources: In-Depth
• Secondary Sources: Journal Articles
• Hot Topic: ISDS Reform
• Free & Subscription-Based Databases
• Bilateral Investment Treaties (BITs)
• Free Trade Agreements (FTAs)
• Treaty Interpretation & Commentary
• Customary Law on State Responsibility
• National Legislation
• Arbitral Institutions & Procedural Rules
• Iran-United States Claims Tribunal
• Electronic Sources
• Print Sources
• Analytical Tools
• News & Current Awareness
• Professional Organization Websites
• Other Research Guides & Update History

Key to Icons

• Georgetown only
• On Bloomberg
• More Info (hover)
• Preeminent Treatise

Getting Started with Secondary Sources

If you are new to international investment law, or are unfamiliar with a particular aspect thereof, start your research with a secondary source .  In addition to providing background information, analysis, and commentary , secondary sources can help you to identify relevant primary law materials , such as treaties, national legislation, and arbitral awards. 

Scroll down for a selection of introductory resources, treatises, and practice guides on international investment law.  Click here for a selection of specialized resources that focus on narrower topics.  Click here for resources on investment treaty interpretation and commentary . 

Introductory Resources in Print

Treatises & Practice Guides in Print

Electronic Resources

Questions? Need Help? Contact International Reference.

International & foreign legal research (202) 662-4195 request a research consultation  .

• << Previous: Introduction
• Next: Secondary Sources: In-Depth >>
• © Georgetown University Law Library. These guides may be used for educational purposes, as long as proper credit is given. These guides may not be sold. Any comments, suggestions, or requests to republish or adapt a guide should be submitted using the Research Guides Comments form . Proper credit includes the statement: Written by, or adapted from, Georgetown Law Library (current as of .....).
• Last Updated: May 9, 2024 2:32 PM
• URL: https://guides.ll.georgetown.edu/InternationalInvestmentLaw

• My Favorites

You have successfully logged in but...

... your login credentials do not authorize you to access this content in the selected format. Access to this content in this format requires a current subscription or a prior purchase. Please select the WEB or READ option instead (if available). Or consider purchasing the publication.

OECD Working Papers on International Investment

"indirect expropriation" and the "right to regulate" in international investment law.

• Finance and Investment
• ISSN: 18151957 (online)
• https://doi.org/10.1787/18151957
• Subscribe to the RSS feed Subscribe to the RSS feed

It is a well recognised rule in international law that the property of aliens cannot be taken, whether for public purposes or not, without adequate compensation. Two decades ago, the disputes before the courts and the discussions in academic literature focused mainly on the standard of compensation and measuring of expropriated value. The divergent views of the developed and developing countries raised issues regarding the formation and evolution of customary law. Today, the more positive attitude of countries around the world toward foreign investment and the proliferation of bilateral treaties and other investment agreements requiring prompt, adequate and effective compensation for expropriation of foreign investments have largely deprived that debate of practical significance for foreign investors.

Disputes on direct expropriation – mainly related to nationalisation that marked the 70s and 80s -- have been replaced by disputes related to foreign investment regulation ...

English Also available in: French

• Click to access:
• Click to download PDF - 647.67KB PDF

Cite this content as:

Author(s) OECD

01 Sept 2004

No. 2004/04

• Open access
• Published: 08 May 2018

International trade and investment law: a new framework for public health and the common good

• Louise Delany ,
• Louise Signal &
• George Thomson   ORCID: orcid.org/0000-0002-3566-9199 1  

BMC Public Health volume  18 , Article number:  602 ( 2018 ) Cite this article

24k Accesses

11 Citations

14 Altmetric

Metrics details

International trade and investment agreements can have positive outcomes, but also have negative consequences that affect global health and influence fundamental health determinants: poverty, inequality and the environment. This article proposes principles and strategies for designing future international law to attain health and common good objectives.

Basic principles are needed for international trade and investment agreements that are consistent with the common good, public health, and human rights. These principles should reflect the importance of reducing inequalities, along with social and environmental sustainability. Economic growth should be recognised as a means to common good objectives, rather than an end in itself. Our favoured approach is both radical and comprehensive: we describe what this approach would include and outline the strategies for its implementation, the processes and capacity building necessary for its achievement, and related governance and corporate issues.

The comprehensive approach includes significant changes to current models for trade and investment agreements, in particular (i) health, social and environmental objectives would be recognised as legitimate in their own right and implemented accordingly; (ii) changes to dispute-resolution processes, both state-to-state and investor-state; (iii) greater deference to international legal frameworks for health, environmental protection, and human rights; (iv) greater coherence across the international law framework; (v) limitations on investor privileges, and (vi) enforceable corporate responsibilities for contributing to health, environmental, human rights and other common good objectives. We also identify some limited changes that could be considered as an alternative to the proposed comprehensive approach.

Future research is needed to develop a range of model treaties, and on the means by which such treaties and reforms might be achieved. Such research would focus also on complementary institutional reforms relevant to the United Nations and other international agencies. Advocacy by a range of communities is needed for effective change. Reform will require informed debate, determined engagement with decision-makers and stakeholders, and some agreement across health, social and environmental sectors on alternatives.

Conclusions

Current frameworks of international law that govern trade and economic development need radical change, in relation to treaty processes, content, and contexts, to better attain public health objectives.

Peer Review reports

International trade and investment agreements (TIAs) affect global health, equity and justice – the common good. TIAs can have positive benefits but, from a range of health and social good perspectives, also have negative outcomes. This article focuses on ideas for change to such agreements and their institutional contexts, with the aim of achieving public health objectives. Because of this future focus, material in the following sections provides only a brief summary of why change is needed, and does not duplicate the growing literature on the problems for public health arising from TIAs.

For this article, we define TIAs as those agreements relevant to trade, international investment, and international intellectual property law. We define the common good as those benefits that can be shared by all, ‘that promote the full flourishing of everyone in the community. … includes, but is not limited to, public goods’[ 1 ] p.161.

International trade law governs trade in products and services; investment law covers assets; and intellectual property law has rules on what kinds of intellectual property can be protected and for how long. There is an array of TIAs in these areas, with multilateral agreements administered by the World Trade Organization (WTO), and other bilateral and regional agreements outside the WTO framework (often referred to in broad terms as free trade agreements – FTAs).

Several interrelated trends have intensified the significance of TIAs and hence their health implications. Accelerated globalisation, involving developments in transportation, technology and communication, has resulted in the extended reach and complexity of global trade. The character of TIAs has become more comprehensive, with far-reaching implications for nation states. The focus has shifted from that of tariff reduction (although that remains important) to a wide range of measures affecting many aspects of products, services, and investment [ 2 ]. ‘Trade’ and ‘investment’ agreements are tending to merge as instruments of large-scale regional economic governance, [ 3 ] with the overall number of investment-related TIAs now over 3000 [ 4 ].

Current agreements in active development include the Trade in Services Agreement (TiSA) and the Regional Comprehensive Economic Partnership; in addition to the recently signed Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

While this article sketches ways in which TIAs should evolve to recognise health and social objectives, we recognise that giving effect to such changes would require a fundamental philosophical shift in international trade and investment policy. This article offers some directions for TIA designs and processes that are intended to be useful for governments and non-government organisations when rethinking and negotiating TIAs. It does not, however, provide solutions for the wider political questions of achieving such changes.

This following sections outline issues for public health and the common good that are created by TIAs in their wider global, legal and corporate contexts. The principles and framework proposed in the Discussion are intended to help address these issues.

Trade and investment related agreements: Problems for public health and the common good

TIAs have a range of positive and adverse outcomes. They affect up-stream determinants of health, such as poverty and inequality, in complex and much debated ways, [ 5 , 6 , 7 ] p.13 and can increase inequalities between and within countries: ‘the rich can get richer, and the poor poorer.’ [ 8 ] p.8. More specifically, TIAs have implications for (1) state budgets; (2) state governance; (3) achieving common good objectives; (4) developing countries; and (5) specific health concerns in relation to both communicable and noncommunicable disease (NCDs).

State budgets

TIAs affect state budgets as a result of tariff reductions, [ 9 ] (especially for developing countries).

TIAs affect the way that states make or refrain from making policies, limit policy choices, and create contexts that result in unhealthy policies [ 10 ].

Common good objectives

TIAs can detract in some cases from the attainment of social, health, human rights and environmental objectives. Generally trade and investment liberalization can affect ‘power relations, social policies, employment conditions and working conditions’ [ 5 ]. TIAs can affect ‘international and domestic labor markets, …job creation, wage and labor standards, and protections’ [ 11 ]. TIAs can facilitate environment-threatening effects [ 12 , 13 ]. They can influence many other areas including land tenure, [ 14 ] agricultural patterns, [ 15 , 16 ] cultural traditions, privatisation, provision of health services, government procurement, [ 17 ] women’s rights, and rights of indigenous peoples [ 18 ].

While WTO TIAs provide exceptions for health and common good objectives, such exceptions are often ambiguous [ 11 ]. The concept of ‘exception’ frames common good objectives as not core to the TIA, and casts the burden of proof for meeting criteria for such exceptions on common good advocates. These criteria are often difficult to satisfy, leading to uncertain outcomes [ 19 , 20 ] p.12. Many non-WTO TIAs further limit governmental ability to fulfil common good related objectives by allowing investors to take action against states [ 11 ].

Developing countries

Developing countries are generally the most significantly affected by TIAs. While inequalities in global distribution of income and wealth have many causes, they have emerged from a ‘historical process that was pervaded by grievous wrongs’ [ 21 ]. As Pogge argues, the resulting massive poverty is perpetuated by an ‘increasingly dense and influential web of global institutional arrangements’ such as TIAs [ 21 ].

Disease determinants

TIAs have direct consequences for the determinants of both communicable and noncommunicable diseases (NCDs) that arise, in part, from a basic tension between the economic growth imperatives of TIAs and health objectives. TIAs facilitate communicable disease through the global dissemination of products and people; [ 22 ] issues relating to antibiotic resistance are based partly on trade; [ 23 ] and intellectual property law affects the affordability and availability of therapeutic drugs [ 24 ] p.289–95. Efforts to address NCD risk factors can be hindered by the liberalised trade regime facilitated by TIAs. Increased competition and lower prices for consumers from TIAs can be negative for health where there are harmful products, due to increased consumption [ 20 ].

In general terms, TIAs influence NCDs because they shape the environments within which consumers make ‘choices’ on such products as foods, tobacco, and alcohol (for example, food environments) [ 16 , 20 ]. A 2017 review of the effects of TIAs found ‘consistent evidence’ of associations between TIAs and both ‘increased consumption of processed foods and sugar-sweetened beverages’ and ‘higher cardiovascular disease incidence’ [ 25 ]. TIAs may restrict people’s ability to access healthy foods, eg, through impacts on agricultural practices and intellectual property protections [ 16 ]. Increased consumption of products and services with adverse health consequences, facilitated by TIAs, runs counter to health measures intended to reduce that consumption [ 25 , 26 ]. Health measures designed to address NCDs might include packaging and labelling requirements, for example on alcohol containers; licences, such as those for tobacco vendors; and restrictions on advertising, promotion, labelling and product content for some food products [ 16 , 20 ]. Each of these measures can infringe international trade rules [ 26 ].

The wider context of trade and investment related agreements

International trade and investment does not exist in a vacuum, nor do the treaties that set out the relevant rules. Any analysis of how trade and trade law can be re-oriented towards achieving the common good should take account of the global and institutional settings in which TIAs operate, the complexity of international legal frameworks, and the multiple players involved, particularly the corporation.

Global governance and processes

Cooperative action to address the issues for public health from TIAs requires effective structures and processes for global governance. Modifications to current arrangements are needed, as many of the major global organisations prioritise financial activity and economic growth, [ 27 ] while those focused on health and its determinants appear to have less power and are not coordinated [ 28 ] p.112.

Organisations such as the World Trade Organization and the World Bank appear to have emerged as stronger elements in global governance, compared to the United Nations, over the last 60 years. Such governance is increasingly complex, with many aspects and levels [ 29 ]. The World Health Organization (WHO) has not taken a major role in the formation of TIAs or their implementation (although it has had significant influence in relation to international law on access to pharmaceuticals) [ 30 ]. While WHO may be invited to contribute to WTO dispute procedures, it has no right to do so, as made clear in the WTO dispute rules [ 31 ]. These rules state that WTO may seek information from any source related to dispute settlement, and/or set up expert review panels, but these are advisory only.

The imbalance between economic and health priorities has been intensified by the trend away from multilateralism towards bilateral, regional and mega agreements (FTAs). ‘Multilateralism’ is a concept that has normative and political connotations, with some commitment to a rule-based system, principles of universality, and governance by international organisations [ 32 , 33 , 34 ]. In this sense, multilateral agreements differ from regional or preferential trade agreements, even where such agreements have several parties [ 35 , 36 ]. These bilateral and regional agreements are ‘negotiated outside WTO auspices’, may ‘undermine developing country interests’ [ 24 ] p.299 and hence may enforce present power imbalances. As Gostin noted, ‘FTAs enable powerful countries to lock developing countries into agreements that could not be achieved during WTO negotiations’. This may, for instance, include stronger intellectual property protections than those in the equivalent WTO agreements [ 24 ] p.299.

In both WTO TIAs and non-WTO TIAs, the present processes of treaty development can inhibit the recognition of health and common good perspectives. This can present barriers even for developed countries in achieving desired outcomes, but the barriers are more acute for developing countries with small economies. There are a number of factors affecting smaller economies as they participate in TIAs, including limited human resources and technical capacity [ 8 ] p.22–23. There are also issues relating to procedural justice in the functioning of the WTO, such as the basic bargaining process itself, which is built on political and economic power [ 8 ] p.27 [ 37 ]. Current TIA dispute resolution mechanisms have particular problems for poorer countries [ 37 ]. The mechanisms require significant resources, including legal assistance, to have any chance of success. This has ‘important implications for the justice of the overall system’ [ 8 ] p.201.

The lack of transparent, open and consultative processes has been noted by a range of official bodies, including a 2015 Australian Senate inquiry, [ 38 ] the European Union, [ 39 ] and the UN Conference on Trade and Development [ 40 ]. Concerns include the secrecy and lack of public participation opportunities in investor-state dispute settlement procedures (some newer TIAs have started to address these problems) [ 40 ].

States can be locked into treaties for long periods without sufficient review or renegotiation ability. While TIAs generally have review clauses, these need to be used effectively for change [ 41 ].

International legal frameworks

The multiplicity of current international legal frameworks means that international law is extremely fragmented, with little clarity around the relationships between various frameworks, and often conflicting norms [ 42 ]. As Carozza states: ‘the systemic incoherence of international law … is widely perceived to be an acute problem, generating many analyses of the fragmentation of international law’ [ 42 ]. A result of this fragmentation and ‘systemic incoherence’ is that international agreements do not satisfactorily set out what should happen where conflicting provisions exist in different frameworks. This is despite the interpretation provisions set out in the Vienna Convention on the Law of Treaties [ 43 ]. While the Convention is of general relevance, [ 44 ] provisions such as Article 31(3)(c) of the Convention are very high level and offer little specific guidance on resolving differences between treaties. In practice, ‘trade treaties are almost always more enforceable than treaties relating to health, human rights, labour, and the environment’ [ 45 ].

Corporate issues

Multinational corporations are key players in international and national policies [ 46 ]. They influence TIAs as major drivers of their architecture and benefit from them. ‘Large corporations ... hold disproportionate power in such agreements, and are the beneficiaries of their rules, which they are able to enforce through new dispute settlement mechanisms’ [ 47 ]. Multinationals influence the content of TIAs (eg, through access to draft treaty texts and lobbying power) and non-WTO TIAs strengthen the power of multinational corporations through the availability of investor-state litigation [ 48 ].

The primary duty of corporations is not to the communities within which they operate, or the broad range of common good objectives, but to their shareholders. The legal nature of the corporation means a degree of inviolability due to its limited liability [ 46 ]. Often there are differences between corporate aims as facilitated by TIAs, and health objectives, with negative implications for public health [ 49 , 50 , 51 , 52 , 53 ]. Attempts to ensure effective control of corporations, so as to ensure some consistency between their behaviour and human rights (including health, social and economic rights) have had, to date, very limited results. This lack of control is indicated by the work on the proposed UN Convention on Business and Human Rights [ 54 ]. Generally, TIAs have given enforceable rights to corporations, without requiring enforceable obligations from them.

The above sections set out specific, systemic, and institutional problems that TIAs, in their global governance contexts, pose for public health and other common good objectives. How can TIAs be redesigned to better align with health objectives?

A number of studies have suggested ways in which some of the negative implications of TIAs could be addressed (eg, [ 55 , 56 , 57 , 58 , 59 ]). In particular, UNCTAD has provided guidelines for reforming the making and implementation of investment treaties [ 60 ]. Their ‘Investment Policy Framework’ suggests ways to protect states’ rights to regulate, and to improve dispute processes [ 61 ]. Smith et al. provide a detailed agenda for action [ 62 ].

This article builds on these and other suggestions to propose a systematic and comprehensive approach to transform TIAs for the common good. It incorporates general principles, a framework for new law, and the identification of institutional, structural and procedural features that would be necessary to support that framework. The approach we suggest would not reject the importance of international trade and the rules for its regulation, but would promote a different and evolved type of TIA that would more effectively recognise multiple common good perspectives.

Suggested principles for trade and investment related treaties

These suggested principles, as well as the following framework, respond to the issues posed by TIAs as outlined in the Background. They would be used as benchmarks to underpin common good perspectives for future TIAs by relevant policy communities, treaty drafters and public health advocates.

The main purpose of the principles is the provision of a succinct ‘checklist’ for evaluating, from a health and common good perspective, the desirability of a particular proposed or current treaty. The principles would help guide decisions on whether to enter into or renew TIAs, of which kind, and in accordance with which processes. The principles would help frame questions, and indicate answers, on the likely effects of specific strategies and provisions embodied in treaty text, to be used perhaps in impact assessments.

A second purpose of the suggested principles is that they could, in some cases, offer ideas for inclusion in introductory treaty text (eg, preambular or purpose provisions). Such inclusion might function as a guide to interpretation, and might also be useful in providing links to other instruments of international law.

The principles below are divided into those: (a) relevant to the processes by which treaties are developed; and (b) those relating to the objectives of the treaties themselves. Further details on how the principles might be operationalised are given later in the article.

Principles for TIA development processes

The essential bases for just and sustainable treaty processes include:

Support for the effective participation of countries and the participation of citizens within these countries in developing policies for TIAs, with special emphasis given to poorer countries and population groups;

Support for multilateralism; that is, an approach that involves a commitment to rule-based principles, and norms of openness and universality, preferably within global governance structures, processes and institutions, rather than regionally based treaties;

Transparent, fair, open and consultative processes for TIA development and implementation;

Recognition, throughout the treaty development process, of the need for provision for, and effective use of, review clauses in TIAs.

Principles for TIA objectives

Explicit incorporation of social, health, human rights, and environmental objectives as core to TIAs, and explicit support for the UN Sustainable Development Goals (SDGs), especially those relevant to:

eliminating poverty

reducing inequalities and redressing power imbalances

protecting and advancing planetary health (‘the health of human civilisation and its underpinning natural systems’ [ 63 ]);

Recognition of economic growth as a means to common good objectives, rather than an end in itself; through for example explicit reference to relevant human rights law, in particular the International Covenant on Economic, Social and Cultural Rights; [ 64 ]

Effective control of international corporations by the international community through international law;

Redressing the specific situations of historically harmed states; [ 65 ] for instance through the provision for special and differentiated treatment for least developed countries. Such ‘special treatment’ could refer not only to orthodox issues such as tariffs, but also specific forms of exceptions and carve outs, and by emphasis on freedom of governmental regulation;

Support for human rights principles, incorporating a collective vision of human rights. That is, explicit recognition that the concept of ‘human rights’ should go beyond traditional individualistic connotations, and envision a ‘collective right to public health – a right applied at the societal level to address underlying determinants of health’ [ 66 ].

A framework for future treaties

We favour a comprehensive approach to designing new TIAs. This responds to the need to implement the SDGs; and to the requirement for fundamental change to promote global health and equity in ways that do not compromise environmental sustainability [ 63 ]. The comprehensive, or ‘planetary’, approach that we favour for TIA design, based on the principles outlined above, would integrate health, environmental and social objectives. Such integration would be the cornerstone of redesigned TIAs that are fit for the twenty-first century.

The comprehensive approach towards redesigning a new framework for TIAs would be buttressed by improved processes for treaty development, enabled in turn by strengthened institutional capacity. New TIA frameworks would require, for effective implementation, governance support from relevant international institutions and attention to issues relating to corporate behaviour.

The following part of our article is structured in eight sections. The first five are: (1) outline of comprehensive approach integrating a range of objectives, (2) strategies to give effect to this approach, (3) necessary processes, (4) capacity building, and (5) governance and corporate issues. Section (6) touches on connections between international law and national law; followed by section (7) which pulls together ideas on enforceability; and then section (8) which briefly notes a more limited approach to redesigning TIAs.

Section 1: Comprehensive approach – A set of common good goals

TIAs would provide for health, environmental and other common good perspectives to be explicitly recognised as core treaty objectives along with economic goals. Treaty chapters would set out how these core objectives would be achieved. Under current TIA frameworks, national measures relating to goals such as environmental protection and public health – while often referred to in preambular treaty statements – are in practice generally permissible only as exceptions. These measures are often difficult to justify in accordance with the current wording of exceptions and their interpretation [ 19 ] ch.8. Reframing such measures as legitimate treaty objectives in their own right, for example, along the lines proposed for environmental objectives by the International Institute for Sustainable Development Model International Agreement on Investment for Sustainable Development , [ 67 ] would help address these difficulties.

Section 2: Strategies to give effect to the comprehensive approach

Strategies to give effect to a set of integrated social and environmental objectives would include some of those proposed by the United Nations Conference on Trade and Development (UNCTAD) [ 68 ], prioritising the needs of developing countries [ 69 ]. Such strategies would cover issues relating to dispute resolution, exceptions, regulatory responsibility and deference to specified health, environmental and human rights agreements.

Dispute resolution

There are two main international methods of TIA dispute resolution. One is that provided in WTO treaties, where only nation states may take action in relation to other states. The other is the method in most non-WTO treaties. This, as well as state-to-state action, allows investors to take action against states through investor-state dispute settlement (ISDS).

Modifications to non-WTO treaties would include either significant change to ISDS or its removal. Concerns about ISDS include process issues, and ‘chilling’ effects due to both process and outcomes [ 70 ]. ‘Chilling’ is government inaction because of potential or real threats of legal action. Modifications to ISDS could involve provision for appeals; a more ‘judicial’ approach to appointing impartial dispute decision makers; greater transparency of dispute decision-making; the ability for the public, NGOs, and relevant sectors to have input to hearings; and published decisions with precedent value [ 68 ] p.147–8.

Some countries have demonstrated that ISDS is not a necessary element of TIAs: one example being the ‘Brazilian’ model which has trade facilitation agreements without ISDS [ 71 ]. An approach that significantly modifies traditional ISDS is included in the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada. This is intended to create, for disputes arising under CETA, an Investment Court System including a permanent Appellate Tribunal, with ethical rules such as preventing conflicts of interest (see Articles 8.27 to 8.30) [ 72 ]. This aspect of CETA is not, however, yet in force and is subject to ratification procedures.

The removal of ISDS, rather than its modification, would necessitate reliance on domestic court systems in the country hosting the investment, or some form of state-to-state dispute settlement, [ 73 ] or new mechanisms such as that envisaged for CETA. Other alternatives include a World Investment Court or, as proposed by the OECD, a Multilateral Investment Court [ 74 , 75 , 76 ]. Domestic court solutions are emerging in treaties entered into by South Africa, Brazil and other countries [ 77 ].

Current state-to-state dispute resolution processes, whether those in WTO or non-WTO treaties, may also inadequately reflect health perspectives. Members of dispute resolution bodies tend to have backgrounds in trade and trade law, [ 78 ] and have world views to which health objectives are not central. While input from other disciplines and sectors is permissible, and often sought, there are no requirements in WTO processes to ensure that input from other sectors is obtained and taken into account. Refinements to WTO processes, and state-to-state dispute procedures in non-WTO treaties, could ensure that panellists or Appellate Board members, as well as those involved in state-to-state disputes under FTAs, have an appropriate environmental or health background in relevant cases [ 79 ].

Exceptions and ‘carve outs’

To complement changes to dispute resolution systems, and to give effect to a set of integrated objectives, changes would also be needed in TIA provisions that relate to ‘exceptions’ and ‘carve outs’ for health, social and environmental goals. Ideally, ‘exceptions’ and ‘carve outs’ for such goals would not be needed, given that new TIAs would give equal weight to health, social and environmental goals, along with those relevant to economic growth. However, given that some forms of ‘exceptions’ may continue, we propose that (1) the use of carve outs be expanded to put beyond doubt the exclusion of treaty provisions for some products and services (eg, tobacco, pornography); and (2) the concept of ‘exception’ be replaced by provisions relating to prioritisations of treaty goals, with mechanisms to ascribe priorities between different objectives, for example:

Explicit priority for some specified objectives. At one extreme, health or environmental aims would not require justification and hence would be ‘self-judged’ by the country concerned (following the example of exceptions on security grounds);[ 80 ] Article 10.4

Criteria such as significant mortality and morbidity potential, as well as international targets for reducing relevant mortality and morbidity, as a basis for recognising the primacy of measures conducive to human, animal or plant life and health.

Affirming governmental regulatory responsibility and limiting investor privileges

Current treaties include a range of provisions that are aimed at bolstering the ‘rights’ of investors, effectively reducing the scope for government regulation. Three major and often inter-related examples are provisions for ‘fair and equitable treatment’; ‘expropriation’; and those relating to intellectual property.

‘Fair and equitable treatment’ (FET) provisions often include commitments to fulfil ‘legitimate expectations’ for investors. FET is an important ground for litigation that is often successful for investors, and can be a major contributor to the ‘regulatory chill’ factor in investment matters. Agreements should exclude commitments to fulfil ‘legitimate expectations’ for investors, or define such expectations more narrowly. This approach has been proposed by UNCTAD, noting a range of options in this area [ 81 ] (p 104–114). One example of a model treaty which arguably accords with one of the UNCTAD options is Canada’s model agreement for the promotion and protection of investments, see Article 6(2) [ 80 ]. The Canada-EU CETA also qualifies what is meant by ‘fair and equitable treatment’, and limits the concept of ‘legitimate expectations’ to situations where a specific promise or representation is made by the State (Article 8.10) [ 72 ]. We consider it may be simpler to exclude provisions relating to ‘fair and equitable treatment’ (as well as ‘legitimate expectations’) altogether from TIAs.

Investment chapters in current TIAs usually have specific sections on expropriation. The chapters can be linked with issues relevant to ‘fair and equitable treatment’ as well as legitimate expectations. While such provisions acknowledge that governments may take regulatory action, even when negative effects on investment may be expected, it is often difficult to distinguish such measures from those which are considered to be indirect expropriation and hence liable to compensation [ 82 ].

We propose that: (1) no governmental action taken in relation to an issue specified in provisions covered in carve outs may be considered as forms of expropriation, direct or indirect; and (2) no governmental action taken in relation to an issue that is prioritised in accordance with the mechanisms proposed above (for ascribing priorities between different objectives) could be considered as any form of expropriation. Alternatively, TIAs could simply exclude altogether the concept of indirect expropriation and focus on explicit definitions of direct appropriation.

Recent treaty development in non-WTO law has seen increased protections for the holders of intellectual property, and often include intellectual property in the definition of investment [ 83 , 84 ]. TIAs that are redesigned for health should limit intellectual property protection for investors.

Deference to other instruments of international law

Redesigned treaties that integrate common good objectives should include provisions to clarify the relationship between TIAs vis-à-vis international health and environmental law. TIAs should refer and defer to other specified international health, environmental and human rights agreements, [ 85 ] eg, the United Nations Convention on the Rights of the Child, and the Framework Convention on Tobacco Control.

Section 3: Treaty development processes

Treaty law does not come into the world of its own accord. The processes by which TIAs are developed should be improved to ensure that common good objectives are fully recognised and to ensure that the interests of the least advantaged are protected.

Improvements would include:

Transparent negotiation processes, greater consultation, participation, and openness to public and legislator scrutiny – eg, through critical points where draft treaty texts are published, as was done by the EU for the Transatlantic Trade and Investment Partnership [ 86 ]. This is, according to the European Commission, to be the rule for all their trade negotiations, as part of active engagement ‘with civil society and the public at large in the context of the civil society dialogues and citizens’ dialogues’ [ 39 ] p.19. Engagement would include public policy papers developed and published at early stages of treaty development, with broad negotiating positions stated (as in the EU) [ 86 ] pp.7–8. While such transparency is essential, it does not itself enable true consultation and participation. This would also require representatives of civil society being engaged in development of draft treaty provisions, negotiation, monitoring of any agreements once implemented and evaluation.

Open development of national treaty positions, perhaps through developing ‘model’ treaty templates, as is done by many countries of the Organization for Economic Co-operation and Development, [ 87 ] p.144 and other states. Examples include the Model Text for the Indian Bilateral Investment Treaty and those developed by regional groups such as the Southern African Development Community Model Bilateral Investment Treaty.

The use during the development of treaty positions of impact assessments that capture a wider range of effects, using tools such as Health Impact Assessments and the UN Global Policy Model [ 88 ]. These would identify, during the negotiations, the advantages and disadvantages that may arise from a specific TIA for different groups in society, along with the potential impacts for health and other common good issues. Treaty audit tools, such as national interest analyses, or health impact assessments, [ 89 ] could identify those groups in society who may suffer disadvantage as a result of a particular TIA (eg, loss of jobs, reduction of wages, increased prices of some products). Such analyses could also identify health outcomes which could be adversely affected (eg, with reference to health services) [ 90 ].

Section 4: Capacity-building and institutional support for treaty development and implementation

Treaty development and implementation requires attention to the many historical and institutional factors that negatively affect achieving health and environmental objectives. This is relevant to both developed and developing countries, but particularly recognises the disadvantages facing developing countries. Most critically, the health, environmental and human rights sectors need an effective place at the TIA negotiating table.

The health community needs greater capacity at all levels - international, regional and state - to enable effective engagement with trade policy and issues relating to TIAs. Health officials in both developing and developed countries need skill development, both in treaty negotiation and in understanding the implications of international law (existing and proposed) for their domestic law. At the international level, the WHO has limited legal in-house capacity, and does not appear to be able to support developing countries to the extent required. Ensuring technical expertise in negotiating and implementing TIAs (especially for developing countries) [ 91 ] should be seen as a required role for both WHO and the WTO.

Improvements would therefore include:

Ensuring greater capacity for health, environmental and human rights engagement in TIA development;

Mandating specific public health, environmental and human rights expertise in WTO technical capacity;

International health funding to support training and capacity building for developing countries in trade and health policy.

Section 5: Global governance and structural issues

Changes in international contexts.

Coherent and effective global governance is needed to support health equity, environmental sustainability, and the implementation of the SDGs. At the most general level, effective global governance for health purposes may require the reform of WHO in order to provide it with greater powers and structures that are more effective [ 92 ]. United Nations (UN) mechanisms are needed to address cross-sector areas of activity. Decisions are also needed on where the UN should provide a global focus for action (following the model of UN action on both HIV/AIDS and NCDs) [ 93 , 94 ]. Attention to global governance structures would also include the reinvigoration of multilateralism (structures, processes, institutions and law), given the potential for non-multilateral approaches to reinforce present power imbalances.

Coherence in the general international law framework is needed. Appropriate hierarchies in international frameworks should be supported, for example, through interpretation invoking the Vienna Convention; [ 44 ] with priority to be given international human rights law vis-à-vis other instruments of international law. New international health law is needed (eg, on alcohol, non-nutritious food). On a more general scale, the proposed Global Health Convention is one model for new law [ 95 ].

Changes relevant to corporations

The successful implementation of new TIAs that would meet health, environmental, human rights and other common good objectives requires attention to corporate structures and behaviour. This is because, along with states, corporations are the main actors in TIAs.

Addressing corporate issues at international and national levels would involve, amongst other things:

An international convention to build on the Ruggie concepts of business responsibilities in relation to human rights, as resolved by the United Nations Human Rights Council in 2014 [ 96 ]. This convention would have binding force, as proposed by 2017 discussions on a new convention; [ 54 , 97 ] and should establish primacy of human rights over TIAs [54 85]. The elements of the October 2017 draft of the new convention include a number of valuable proposals, including the proposed duty of state parties to prepare human rights impact assessments prior to the conclusion of trade and investment agreements (Principles1.2) and some provisions for enforcement; [ 54 ]

Incentives in TIAs for corporate compliance with human rights, health, environmental and other common good objectives, and effective sanctions on corporations for non-compliance;

Action by nation states applicable in their own jurisdictions, for example provision for investor responsibility in state legislation, with conditions attached to corporate investment by foreign investors, and processes to enable individuals and groups to take effective action against corporations.

Section 6: Connections between international and national levels

In accordance with any disadvantages identified by national interest analyses or health impact assessments, nation states should, through their domestic law, counter the identified adverse effects from TIAs as much as possible. Such law would need to come into effect at the same time as the treaty. For example, compensatory taxation measures for disadvantaged groups (such as those whose employment is affected) may be appropriate. National law should require contracts for foreign direct investment to explicitly recognise the responsibility of national governments to regulate for the common good. Foreign direct investment should also be conditional on compliance with stated health or environmental goals, for example, nutritional goals; and national law should stipulate that any breach of such conditions would invalidate any possibility of investor-state litigation.

Section 7: Enforceability

Many concepts proposed in this article are intended in general terms to promote the enforceability of common good objectives vis-à-vis the economic growth objectives of TIAs and the financial interests of corporations. Mechanisms to ensure such enforceability should occur at several levels: through a range of strategies within TIAs; within other legal instruments relating to health and environmental objectives (for example the FCTC and the Paris Agreement); through any convention on the responsibilities of businesses in relation to human rights; and within national legislation. While ideally these mechanisms should interlink, they may also be implemented independently.

In summary, enforceability mechanisms could include:

Assertion in treaty text of the equal weight to be given to common good objectives, and the primacy of human rights law, over pecuniary interests would render it more difficult to initiate dispute procedures involving challenges to common good objectives. Treaty text would further provide that non-compliance with common good objectives would render invalid any possible dispute involving investor rights (under state-to-state rules or ISDS), and render states and investors ineligible for benefits under the relevant TIA;

Other international agreements

Instruments such as the Paris Agreement should specifically provide for the supremacy of climate control objectives versus those relating to economic growth;

Overarching international law

An international convention on business responsibilities in relation to human rights would have its own implementation and enforcement mechanisms. These would include provisions for states to enact disclosure requirements, contractual preferences for corporations with appropriate histories of human rights and environmental compliance; and imposition of criminal liability for breaches of human rights, administrative and monetary sanctions;

National legislation

Many of the ‘elements’ proposed for a convention on business responsibilities and human rights need not await finalisation of such a convention – likely, at best, to be many years away. Hence, national legislation could enact a general framework with which any new TIA entered into by the relevant state would need to comply. Such a framework could include, perhaps, a ‘model’ TIA appropriate to that country. The framework would provide that draft TIAs would (i) need human rights impact assessments; (ii) enable conditions to be attached to corporate investment; (iii) allow individuals and groups to take effective action against corporations; (iv) require contracts for foreign direct investment to explicitly recognise the responsibility of national governments to regulate for the common good, ensuring compliance with stated health or environmental goals; and (v) stipulate that any breach of such conditions would invalidate investor-state litigation and state-to-state dispute resolution procedures.

Section 8: Limited approaches to redesign of TIAs

A limited approach to redesigning TIAs could be adopted in the short term, instead of the proposed comprehensive framework. This limited approach could consist of integrated objectives, strategies to achieve them, and improved processes and capacity building. Individual features that could be implemented on their own might include:

Improvements to dispute resolution – eg, abolition of or modification to ISDS

Reductions in investor protections (eg, those relevant to ‘legitimate expectations’) and rolling back recent increases in investor intellectual property protections

Some deference to other instruments of international law

Greater technical capacity and skill building for health sector involvement in TIAs

A broadened scope for ‘exceptions’ or ‘carve outs’ could ensure less dependence on the present strict ‘necessity’ tests. Revised phrasing for exceptions could recognise that distinctions (such as the use of sustainable production methods) are legitimate for environmental protection.

This more limited approach, based on the adoption of one of more such elements, might address some issues posed by TIAs, but would not succeed in creating the fundamental framework change that we consider is needed.

Current TIAs have multiple adverse implications for health and the common good. Rethinking current frameworks of international law governing trade and economic development is possible, and is necessary to attain public health objectives and help give effect to the SDGs. We have put forward ideas for a comprehensive approach to the redesign of international trade law, consisting of integrated objectives, strategies to achieve them, and improved processes and capacity building. Such redesign would be facilitated by significant changes to global governance; and would address specific issues posed by corporate structures and practices. The redesign of TIAs, and improvements in general international and corporate contexts, should also be mirrored and given effect in national law.

Some of these ideas would be susceptible to a ‘mix and match’ or incremental approach. Nevertheless, we strongly favour a re-envisioning of basic frameworks, as implemented by the comprehensive approach outlined.

We conclude that ‘model’ treaties are needed to demonstrate how new TIA law could look in practice, as well as ideas on how new law might be realised. Research is needed to develop details of the range of models and the institutional underpinnings to ensure their efficacy.

International law that is health promoting, sustainable, and supportive of the SDGs, will require advocacy for real change. Change will require informed debate, determined engagement with decision-makers and other stakeholders, some agreement on alternatives, and the development of alliances between health communities and other groups interested in the common good [ 98 , 99 , 100 ].

Abbreviations

Comprehensive Economic and Trade Agreement

Fair and equitable treatment

Free trade agreement

Health Impact Assessments

Investor-state dispute settlement

Sustainable Development Goals

Trade and investment agreement

United Nations

United Nations Conference on Trade and Development

World Health Organization

World Trade Organization

Murphy J. Common good. In: Audi R, editor. The Cambridge dictionary of philosophy. 2nd ed. Cambridge: Cambridge University Press; 1999.

Google Scholar  

Baldwin R. 21st century regionalism: filling the gap between 21st century trade and 20th century trade rules. Geneva: World Trade Organization; 2011. Accessed March 12, 2018. https://www.wto.org/english/res_e/reser_e/ersd201108_e.pdf

Puig S. The Merging of International Trade and Investment Law. Berkeley J Int Law. 2015;33(1):1. Article 4

United Nations Conference on Trade and Development. Investment policy monitor: issue 18. Geneva: United Nations Conference on Trade and Development; 2017. Accessed March 12, 2018. http://unctad.org/en/PublicationsLibrary/webdiaepcb2017d9_en.pdf

McNamara C, Labonte R. Trade, labour markets and health. Int J Health Serv. 2017;47(2):277–97. https://doi.org/10.1177/0020731416684325 .

Article   PubMed   Google Scholar  

Bartley Johns MB, Paul; Cali, Massimiliano; Hoppe, Mombert; Piermartini, Roberta The role of trade in ending poverty: World Bank, 2015. http://documents.worldbank.org/curated/en/726971467989468997/The-role-of-trade-in-ending-poverty

Pogge T. Politics as usual: what lies behind the pro-poor rhetoric. Cambridge, UK: Polity Press; 2010.

Garcia F. Trade, inequality, and justice: toward a liberal theory of just trade. Ardsley, New York: Transnational Publishers; 2003.

Labonte R, Mohindra KS, Lencucha R. Framing international trade and chronic disease. Glob Health. 2011;7:21. https://doi.org/10.1186/1744-8603-7-21 .

Article   Google Scholar  

Schram A, Ruckert A, VanDuzer JA, et al. A conceptual framework for investigating the impacts of international trade and investment agreements on noncommunicable disease risk factors. Health Policy Plan. 2018;33(1):123–36. https://doi.org/10.1093/heapol/czx133 .

Friel S, Hattersley L, Townsend R. Trade policy and public health. Annu Rev Public Health. 2015;36:325–44.

Lenzen M, Moran D, Kanemoto K, et al. International trade drives biodiversity threats in developing nations. Nature. 2012;486(7401):109–12. https://doi.org/10.1038/nature11145 .

Article   CAS   PubMed   Google Scholar  

Baveye PC, Charlet L. Proposed trade agreements would make policy implications of environmental research entirely irrelevant. Environmental science & technology. 2014;48(3):1370–1. https://doi.org/10.1021/es500112e .

Article   CAS   Google Scholar  

Thrasher R, Bevilacqua D, Capaldo J. Trade Agreements and the Land: Investment agreements and their potential impacts on land governance global development and environment: background paper no. 15-01. Metford ma: Tufts University: global development and environment institute, 2015. Accessed December 2, 2016. http://ase.tufts.edu/gdae/pubs/wp/TradeAgreementsLand.pdf

Cotula L, Vermeulen S, Leonard R, et al. Land grab or development opportunity? Agricultural investment and international land deals in Africa. London & Rome: Food and Agriculture Organization, 2009. Accessed December 2, 2016. http://www.fao.org/docrep/011/ak241e/ak241e00.htm

Larking E, Friel S, Thow AM. Protecting the Human Right to Food in the Sphere of International Trade and Investment. In: Ron Labonté, Ruckert A, Packer C, eds. Special Section on “Trade, Health and Human Rights”, Canadian Yearbook of Human Rights. Ottawa: University of Ottawa 2017. Draft at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3083853

Shaffer ER, Waitzkin H, Brenner J, et al. Global trade and public health. Am J Public Health. 2005;95(1):23–34.

Article   PubMed   PubMed Central   Google Scholar  

Special Rapporteur of the Human Rights Council. United Nations a/70/301 general assembly. Geneva: UN human rights council 2015. Accessed March 22, 2018. http://www.un.org/ga/search/view_doc.asp?symbol=A%2F70%2F301&Submit=Search&Lang=E

Fidler DP, Correa C, Aginam O. Legal review of the General Agreement on Trade in Services (GATS) from a health policy perspective. Globalisation, Trade and Health Working Paper Series Geneva: World Health Organisation, 2003. http://www.who.int/trade/resource/gatslegalreview/en/

McGrady B. Trade and public health: the WTO, tobacco, alcohol, and diet. New York: Cambridge University Press; 2011.

Book   Google Scholar  

Pogge T. The Health Impact Fund: how to make new medicines accessible to all. In: Benatar R, Solomon; Brock, Gillian, ed. Global health and global health ethics: Cambridge University Press, 2011:241–250.

Lee K. Have microbes, will travel. Lancet. 2007;369(9568):1159–60.

World Health Organization. Global Action Plan on Antimicrobial Resistance. Geneva: World Health Organization, 2015. Accessed December 2, 2016. http://apps.who.int/iris/bitstream/10665/193736/1/9789241509763_eng.pdf .

Gostin L. Global Health Law. Cambridge Mass: Harvard University Press; 2014.

Barlow P, McKee M, Basu S, et al. The health impact of trade and investment agreements: a quantitative systematic review and network co-citation analysis. Glob Health. 2017;13(1):13. https://doi.org/10.1186/s12992-017-0240-x .

Voon T, Mitchell A. International trade law. In: Voon T, Mitchell A, Liberman J, editors. Regulating tobacco, alcohol and unhealthy foods: the legal issues. Abingdon: Routledge; 2014.

Shaffer G. How the World Trade Organization shapes regulatory governance. Regulation & Governance. 2015;9(1):1–15. https://doi.org/10.1111/rego.12057 .

Peet R. Unholy trinity: the IMF, World Bank and WTO. London: Zed Books; 2009.

Weiss T, Wilkinson R. Rethinking global governance? Complexity, authority, power, change. Int Stud Q. 2014;58(1):207–15.

World Health Organization, World Intellectual Property Organization, World Trade Organization. Promoting access to medical technologies and innovation: Intersections between public health, intellectual property and trade. Geneva, Switzerland: WTO Secretariat, 2012.

World Trade Organization. Understanding on rules and procedures governing the settlement of disputes: annex 2 of the WTO agreement. Geneva: World Trade Organization; 2017. Accessed March 11, 2018. https://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm

Ruggie JG. Multilateralism: the anatomy of an institution. Int Organ. 1992;46(3):561–98.

Kahler M. Multilateralism with small and large numbers. Int Organ. 1992;46(3):681–708.

Caporaso JA. International relations theory and multilateralism: the search for foundations. Int Organ. 1992;46(3):599–632.

Bhagwati J. Regionalism versus Multilateralism. World Economy. 1992;15(5):535–56. https://doi.org/10.1111/j.1467-9701.1992.tb00536.x .

Bhagwati J, Krishna P, Panagariya A. The world trade system: trends and challenges. New York: Columbia University; 2014. Accessed January 23, 2017. http://www.columbia.edu/~jb38/papers/pdf/paper1-the_world_trading_system.pdf

McNeill D, Birkbeck CD, Fukuda-Parr S, et al. Political origins of health inequities: trade and investment agreements. Lancet. 2017;389(10070):760–2. https://doi.org/10.1016/S0140-6736(16)31013-3 .

Senate Standing Committees on Foreign Affairs Defence and Trade. Blind agreement: reforming Australia's treaty-making process. Canberra Parliament of Australia, 2015. Accessed March 12, 2018. https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Treaty-making_process/~/media/Committees/fadt_ctte/Treaty-making_process/report.pdf

European Commission. Trade for all: Towards a more responsible trade and investment policy. Luxenbourg: European Union, 2015. Accessed March 12, 2018. http://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf

United Nations Conference on Trade and Development. Transparency: UNCTAD series on issues in international investment agreements II Geneva: United Nations conference on trade and development,, 2012. Accessed March 12, 2018. http://unctad.org/en/PublicationsLibrary/unctaddiaeia2011d6_en.pdf

United Nations Conference on Trade and Development. International Investment Policymaking in Transition: Challenges and opportunities of treaty renewal Geneva: United Nations conference on trade and development, 2013. Accessed March 14, 2018. http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d9_en.pdf

Carozza PG. The problematic applicability of subsidiarity to international law and institutions. Am J Jurisprud. 2016;61:51–67.

Vienna Convention on the Law of Treaties, United Nations. United Nations: United Nations treaty series, vol. 1155, p. 331, 1969, Entered into force 1980.

Mclachlan C. The principle of systemic integration and article 31(3)(C) of the Vienna convention. ICLQ. 2005;54(02):279–320. https://doi.org/10.1093/iclq/lei001 .

Fidler DP, Drager N, Lee K. Managing the pursuit of health and wealth: the key challenges. Lancet. 2009;373(9660):325–31. https://doi.org/10.1016/S0140-6736(08)61775-4 .

Wiist WH. Public health and the anticorporate movement: rationale and recommendations. Am J Public Health. 2006;96(8):1370–5. https://doi.org/10.2105/AJPH.2005.072298 .

Gleeson D, Friel S. Emerging threats to public health from regional trade agreements. Lancet. 2013;381(9876):1507–9. https://doi.org/10.1016/S0140-6736(13)60312-8 .

McNeill D, Birkbeck C, Fukuda-Parr S, et al. Trade and investment agreements : implications for health protection. Journal of World Trade. 2017;51(1):159–82.

Wiist WH. The corporation: an overview of what it is, its tactics, and what public health can do. In: Wiist WH, editor. The bottom line or public health. Oxford: Oxford University Press; 2010.

Stuckler D, McKee M, Ebrahim S, et al. Manufacturing epidemics: the role of global producers in increased consumption of unhealthy commodities including processed foods, alcohol, and tobacco. PLoS Med. 2012;9(6):e1001235. https://doi.org/10.1371/journal.pmed.1001235 .

Kickbusch I, Allen L, Franz C. The commercial determinants of health. Lancet Glob Health. 2016;4(12):e895–e96. https://doi.org/10.1016/S2214-109X(16)30217-0 .

Moodie R, Stuckler D, Monteiro C, et al. Profits and pandemics: prevention of harmful effects of tobacco, alcohol, and ultra-processed food and drink industries. Lancet. 2013;381(9867):670–9. https://doi.org/10.1016/S0140-6736(12)62089-3 .

Baum F. The new public health. 4th ed ed. Oxford: Victoria, Australia; 2015.

United Nations Human Rights Council. Elements for an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. Geneva: United Nations, 2017. Accessed December 11, 2017. http://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/LegallyBindingInstrumentTNCs_OBEs.pdf

Thow AM, Snowdon W, Labonte R, et al. Will the next generation of preferential trade and investment agreements undermine prevention of noncommunicable diseases? A prospective policy analysis of the trans Pacific partnership agreement. Health Policy. 2015;119(1):88–96. https://doi.org/10.1016/j.healthpol.2014.08.002 .

Lencucha R, Drope J. Plain packaging: an opportunity for improved international policy coherence? Health Promot Int. 2015;30(2):281–90. https://doi.org/10.1093/heapro/dat038 .

Mitchell A, Sheargold E. Protecting the autonomy of states to enact tobacco control measures under trade and investment agreements. Tob Control. 2015;24(e2):e147–53. https://doi.org/10.1136/tobaccocontrol-2014-051853 .

Thow AM, McGrady B. Protecting policy space for public health nutrition in an era of international investment agreements. Bull World Health Organ. 2014;92(2):139–45. https://doi.org/10.2471/BLT.13.120543 .

Walls H, Baker P, Smith R. Commentary: moving towards policy coherence in trade and health. J Public Health Policy. 2015;36(4):491–501. https://doi.org/10.1057/jphp.2015.23 .

United Nations Conference on Trade and Development. World investment report 2015: reforming international investment governance. Geneva: United Nations Conference on Trade and Development, 2015. Accessed March 12, 2018. http://unctad.org/en/PublicationsLibrary/wir2015_en.pdf

United Nations Conference on Trade and Development. Investment Policy Framework for Sustainable Development Geneva: United Nations Conference on Trade and Development, 2015. Accessed March 12, 2018. http://unctad.org/en/PublicationsLibrary/diaepcb2015d5_en.pdf

Smith RD, Lee K, Drager N. Trade and health: an agenda for action. Lancet. 2009;373(9665):768–73. https://doi.org/10.1016/S0140-6736(08)61780-8 .

Whitmee S, Haines A, Beyrer C, et al. Safeguarding human health in the Anthropocene epoch: report of the Rockefeller Foundation - Lancet Commission on planetary health. Lancet. 2015;386(10007):1973–2028. https://doi.org/10.1016/S0140-6736(15)60901-1 .

United Nations General Assembly. International Covenant on Economic, Social and Cultural Rights: United Nations, treaty series, vol. 993, p 3; 1976 [Accessed December 11, 2017. https://treaties.un.org/doc/Publication/UNTS/Volume%20993/volume-993-I-14531-English.pdf

Pogge T. World Poverty and Human Rights. 2nd ed. Cambridge: Polity Press; 2008.

Meier BM. Advancing health rights in a globalized world: responding to globalization through a collective human right to public health. J Law Med Ethics 2007;35(4):545–555, 11.

Mann H, von Moltke K, Peterson L, et al. IISD model international agreement on Investment for Sustainable Development. Winnepeg: international institute for Sustainable Development, 2005. Accessed November 17, 2016. https://www.iisd.org/pdf/2005/investment_model_int_agreement.pdf

United Nations Conference on Trade and Development. World Investment Report 2015: Reforming International Investment Governance, Chapter 4. Geneva: United Nations, 2015. Accessed January 23, 2017. http://unctad.org/en/PublicationChapters/wir2015ch4_en.pdf

United Nations Conference on Trade and Development. About UNCTAD. Geneva: United Nations Conference on Trade and Development, 2017. Accessed June 28, 2017. http://unctad.org/en/Pages/aboutus.aspx

Tienhaara K. Regulatory chill and the threat of arbitration: a view from political science. In: Brown C, Miles K, editors. Evolution in investment treaty law and arbitration. Cambridge: Cambridge University Press; 2011.

Monebhurrun N. Novelty in international investment law: the Brazilian agreement on cooperation and facilitation of investments as a different international investment agreement model. J Int Disp Settlement. 2016:idv028. https://doi.org/10.1093/jnlids/idv028 .

Council of the European Union. Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part. Brussels: Council of the European Union 2016. Accessed December 2, 2016. http://data.consilium.europa.eu/doc/document/ST-10973-2016-INIT/en/pdf

Bronckers M. Is investor–state dispute settlement (ISDS) superior to litigation before domestic courts?: an EU view on bilateral trade agreements. J Int Economic Law. 2015;18(3):655–77.

Ghahremani S, Prandzhev I. Multilateral investment court: a realistic approach to achieve coherence and consistency in international investment law? European Federation for Investment Law and Arbitration: Brussels; 2017. Accessed June 8, 2017. https://efilablog.org/2017/03/14/multilateral-investment-court-a-realistic-approach-to-achieve-coherence-and-consistency-in-international-investment-law/

Shore L, Leathley C, Cannon A, et al. Position paper for the European Commission on the multilateral investment court system London: Herbert Smith Freehills LLP, 2017. http://www.lexology.com/library/detail.aspx?g=3fd418a5-f1d4-4c8f-b786-87b269304f12

European Commission, Government of Canada. Establishment of a multilateral investment dispute settlement system. Brussels: European Commission, 2016. Accessed June 8, 2017. http://trade.ec.europa.eu/doclib/html/155267.htm

Hindelang S, Krajewski M. Towards a more comprehensive approach in international investment law. In: Hindelang S, Krajewski M, editors. Shifting paradigms in international investment law. Oxford: Oxford University Press; 2016.

Chapter   Google Scholar  

World Health Organization, World Trade Organization. WTO agreements and public health: a joint study by the WHO and the WTO secretariat. Geneva: World Health Organization, 2002. Accessed January 23, 2017. http://www.who.int/trade/resource/wtoagreements/en/

Charnovitz S. Environment and health under WTO dispute settlement. Int'l L. 1998;32:901–21.

Canadian Government. Agreement between Canada and [ ] for the promotion and protection of investments [model agreement - available from Foreign Affairs, Trade and Development Canada]. Ottawa: Canadian Government, 2014.

United Nations Conference on Trade and Development. Fair and equitable treatment. Series on issues in international investment agreements II. New York: UNCTAD, 2012 Accessed January. 2017:23. http://unctad.org/en/Docs/unctaddiaeia2011d5_en.pdf

United Nations Conference on Trade and Development. Expropriation. UNCTAD series on issues in international investment agreements, vol. II. Trade: United Nations; 2012. http://unctad.org/en/Docs/unctaddiaeia2011d7_en.pdf

United Nations Conference on Trade and Development. Intellectual Property Provisions in International Investment Arrangements. New York and Geneva: United Nations, 2007. Trade and Health. http://unctad.org/en/docs/webiteiia20071_en.pdf

Liberti L. Intellectual property rights in international investment agreements: an overview: OECD publishing, 2010. https://doi.org/10.1787/5kmfq1njzl35-en

Krajewski M. Ensuring the primacy of human rights in trade and investment policies. Brussels: CIDSE, 2017. Accessed June 8, 2017. https://www.cidse.org/publications/business-and-human-rights/business-and-human-rights-frameworks/ensuring-the-primacy-of-human-rights-in-trade-and-investment-policies.html

European Commission. The Transatlantic Trade and Investment Partnership (TTIP) – State of Play. Brussells: European Commission, 2016. Accessed December 2, 2016. http://trade.ec.europa.eu/doclib/docs/2016/april/tradoc_154477.pdf

Organisation for Economic Cooperation and Development. Novel Features in Recent OECD Bilateral Investment Treaties. International Investment Perspectives. Paris. OECD 2006 Accessed January. 2017:23. http://www.oecd.org/investment/internationalinvestmentagreements/40072428.pdf

Cripps F, Izurieta A, Vos R. United Nations global policy model. New York: United Nations; 2010. Accessed December 11, 2017. https://www.un.org/development/desa/dpad/publication/united-nations-global-policy-model/

Hirono K, Haigh F, Gleeson D, et al. Is health impact assessment useful in the context of trade negotiations? A case study of the Trans Pacific Partnership Agreement. BMJ Open. 2016;6(4):e010339.

Koivusalo M. Policy space for health and trade and investment agreements. Health Promot Int. 2014;29(suppl 1):i29–47. https://doi.org/10.1093/heapro/dau033 .

Shaffer G. Can WTO technical assistance and capacity-building serve developing countries? Wis Int'l L J 2005;23:643.

Hoffman SJ, Rottingen JA. Split WHO in two: strengthening political decision-making and securing independent scientific advice. Public Health. 2014;128(2):188–94. https://doi.org/10.1016/j.puhe.2013.08.021 .

United Nations General Assembly. Political declaration on HIV and AIDS: on the fast-track to accelerate the fight against HIV and to end the AIDS epidemic by 2030: a/70/L.52. New York: United Nations; 2016. Accessed January 23, 2017. http://www.unaids.org/en/resources/documents/2016/2016-political-declaration-HIV-AIDS

United Nations General Assembly. Political declaration of the high-level meeting of the general assembly on the prevention and control of non-communicable diseases: a/66/L.1. New York: United Nations; 2011. Accessed December 2, 2016. http://www.un.org/ga/search/view_doc.asp?symbol=A/66/L.1

Gostin LO, Friedman EA, Buse K, et al. Towards a framework convention on global health. Bull World Health Organ. 2013;91:790–3. https://doi.org/10.2471/BLT.12.114447 .

United Nations Human Rights Council. 26/9 Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. Geneva: United Nations, 2014. Accessed December 11, 2017. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/082/52/PDF/G1408252.pdf?OpenElement

United Nations Human Rights Council. Third session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. Geneva: United Nations, 2017. Accessed December 11, 2017. http://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Session3/Pages/Session3.aspx

Friedman EA, Gostin LO, Buse K. Advancing the right to health through global organizations: the potential role of a framework convention on Global Health. 2013;15(1):E71–86.

Hilson M. Advocacy for a new global health development paradigm: building alliances for global public health. Promot Educ. 2005;(Suppl 3):65–7.

Pinet G. Global partnerships: a key challenge and opportunity for implementation of international health law. Med Law. 2003;22(4):561–77.

PubMed   Google Scholar  

Download references

Acknowledgements

Many of the ideas in this article came from the work of, and conversations with, a range of experts around the world. We are indebted to them for giving generously of their time and wisdom.

Partial funding was received from a University of Otago Research Grant. The funder was not involved in the design of the study; the collection, analysis, and interpretation of data; or in writing the manuscript.

Author information

Authors and affiliations.

University of Otago, Box 7343, Wellington, New Zealand

George Thomson

You can also search for this author in PubMed   Google Scholar

Contributions

LD conceived the project; LD, LS, GT helped plan and design the project; LD and GT gathered data, and LD, LS, GT wrote the text. LD, LS, GT read and approved the final manuscript.

Corresponding author

Correspondence to George Thomson .

Ethics declarations

Ethics approval and consent to participate.

Not applicable.

Competing interests

The authors declare that they have no competing interests.

Publisher’s Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Open Access This article is distributed under the terms of the Creative Commons Attribution 4.0 International License ( http://creativecommons.org/licenses/by/4.0/ ), which permits unrestricted use, distribution, and reproduction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made. The Creative Commons Public Domain Dedication waiver ( http://creativecommons.org/publicdomain/zero/1.0/ ) applies to the data made available in this article, unless otherwise stated.

Reprints and permissions

About this article

Cite this article.

Delany, L., Signal, L. & Thomson, G. International trade and investment law: a new framework for public health and the common good. BMC Public Health 18 , 602 (2018). https://doi.org/10.1186/s12889-018-5486-6

Download citation

Received : 06 July 2017

Accepted : 19 April 2018

Published : 08 May 2018

DOI : https://doi.org/10.1186/s12889-018-5486-6

Share this article

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• International law
• Planetary health

BMC Public Health

ISSN: 1471-2458

• General enquiries: [email protected]

International Investment Law

• Starting your Research
• International Customary Law
• Domestic Legislation
• Finding Awards & Court Decisions
• Journals & Journal Articles
• Keeping up to Date
• Referencing and citing

Finding Journal Articles in Multiple Journals with a single search

Journal articles in international investment law arbitration databases .

(open access) is an extensive bibliography that lists articles from multiple journals, books, research, and working papers on ICSID, investment law and treaties, and international investment dispute resolution. It can be browsed alphabetically by author, and it also has an advanced search function.

(UniMelb staff & students) - although not focussed only on investment arbitration, this database includes 11 international arbitration journals which include investment arbitration scholarship and can be searched simultaneously - ASA Bulletin, Arbitraje: Revista de Arbitraje Comercial y de Inversiones, Asian Dispute Review, Asian International Arbitration Journal, BCDR International Arbitration Review, Indian Journal of Arbitration Law, International Journal of Arab Arbitration, Journal of International Arbitration, Revista Brasileira de Arbitragem, Revue de l'Arbitrage, and Spain Arbitration Review.

Social Science Research Network (SSRN) is devoted to the rapid worldwide dissemination of research and is composed of specialized research networks in many disciplines. The SSRN eLibrary consists of two parts: an Abstract Database containing abstracts of scholarly working papers and forthcoming papers; and an Electronic Paper Collection containing downloadable full text documents.

Journal Articles in General Law Databases 

The following journal databases index articles from hundreds of law journals. The journals can be searched simultaneously. Full text articles are often included in the databases.

• AGIS on INFORMIT  (UniMelb staff & students)
• HEIN Online  (UniMelb staff & students)
• Index to Foreign Legal Periodicals  (UniMelb staff & students)
• Legal Source  (UniMelb staff & students)
• Legaltrac  (UniMelb staff & students)
• Westlaw UK - Legal Journals Index and Full Text Journals (UniMelb staff & students)
• Westlaw Next Canada - I ndex to Canadian Legal Literature and  LawSource Journals and Law Reviews (UniMelb staff & students)
• Westlaw  - World Journals and Law Reviews & Journals Index (UniMelb staff & students)

Recent Open Access Journal Articles & Book Chapters on SSRN

Mitchell, Andrew D and Tania Voon, ' The Rule of Necessary Implication ' (draft chapter) in Joseph Klingler, Yuri Parkhomenko and Constantinos Salonidis (eds), Between the lines of the Vienna Convention?:Canons of Construction and Other Interpretive Principles in Public International Law (Wolters Kluwer, 2018). 

Schwieder, Robert W, ' Legal Aid and Investment Treaty Disputes: Lessons Learned from the ACWL and Investment Experiences ' (December 2017)

de Mestral, Armand Claude and Vanhonnaeker, Lukas, ' How Best to Ensure Respect for the Right to Regulate in the Face of Foreign Investment Commitments: A Reformed ISA Process or a Return to the WTO ' (December 2017)

Mitchell, Andrew D, James Munro and Tania Voon, ' Importing WTO General Exceptions into International Investment Agreements: Proportionality, Myths and Risks ' in Yearbook on International Investment Law and Policy 2016-2017 (Oxford University Press, 2018, Forthcoming)

Tams, Christian J, ' Ways Out of the Marshland: Investment Lawyers and the Law of State Succession ' (2017) in Hofmann, Schill & Tams, Investment Arbitration as a Motor of General International Law (Edward Elgar, Forthcoming)

Schneiderman, David, ' Global Constitutionalism and Its Legitimacy Problems: Human Rights, Proportionality, and International Investment Law ' (2017)  Journal of Law & Ethics of Human Rights , Forthcoming  

Mba, Sanford U, ' Africa for the Chinese'? Revisiting Bilateral Investment Treaties between African States and China for Corporate Accountability and Regulation (September 7, 2017)

Individual Journal Titles

The following online titles focus on international commercial arbitration, including investment arbitration (UniMelb staff & student access).

• The American Review of International Arbitration
• Arbitration International
• Global Arbitration Review
• ICSID Review: Foreign Investment Law journal
• International Arbitration Law Review
• Journal of World Investment & Trade
• Transnational Dispute Management Journal
• << Previous: Books
• Next: Keeping up to Date >>
• Last Updated: Aug 2, 2024 10:51 AM
• URL: https://unimelb.libguides.com/investment_law

Academia.edu no longer supports Internet Explorer.

To browse Academia.edu and the wider internet faster and more securely, please take a few seconds to  upgrade your browser .

•  We're Hiring!
•  Help Center

International Investment Law

• Most Cited Papers
• Most Downloaded Papers
• Newest Papers
• Last »
• International Investment Arbitration Follow Following
• International Arbitration Follow Following
• International Law Follow Following
• Public International Law Follow Following
• International Dispute Settlement Follow Following
• International Commercial Arbitration Follow Following
• International Investment Law and Investment Treaty Arbitration Follow Following
• International economic law Follow Following
• International trade law Follow Following
• Foreign Direct Investment Follow Following

Enter the email address you signed up with and we'll email you a reset link.

• Academia.edu Journals
•   We're Hiring!
•   Help Center
• Find new research papers in:
• Health Sciences
• Earth Sciences
• Cognitive Science
• Mathematics
• Computer Science
• Academia ©2024

• Scholarship
• Internships
• Paid Courses
• Case Analysis
• Social Science
• Research Internship

MODE: HYBRID

Organized by- Centre for Trade, Investment and Competition School of Law, Bennett University, Greater Noida

ABOUT BENNETT UNIVERSITY

Bennett University was established in 2016 under the aegis of the Times Group. Backed by a legacy spanning more than 180+ years, Bennett University is committed to creating leaders for the 21st century who deliver professional excellence and are well-rounded individuals who can think critically about issues from multiple perspectives. Extending the core journalistic principles of Trust, Knowledge and Public Service, Bennett Coleman and Co. Ltd. (BCCL) has continually undertaken initiatives for the betterment of Indian society. Bennett University’s curriculum strongly emphasizes foundational knowledge, thorough academic research based on rigorous pedagogy, and hands-on experience with real world challenges. The synthesizing nature of the curriculum allows the student to learn by making connections between ideas and concepts across different disciplinary boundaries.

ABOUT SCHOOL OF LAW

Bennett University established the School of Law with a vision to strive for excellence in teaching, research, and advocacy towards Justice for all by shaping thought leaders in public policy of National and International dimensions. The school at present is offering B.A.LL.B. (Hons.), B.B.A.LL.B. (Hons.), LL.B. (Hons.), LL.M., and Ph.D. programs and imbibes the best practices in terms of curriculum, pedagogy, innovation in teaching methods. Invested and promoted by the largest media enterprise, the School of Law is committed to educating the pioneers of the future through leaders in the field of law, the ones who can think out loud and clear on matters of justice and progress redefining, reforming and reshaping legal education for seamless integration of theory and practice are the hallmark of progress.

GUIDELINES FOR SUBMISSION

SUBMISSION OF ABSTRACT

Each applicant must submit a 1000 word abstract providing an overview of the proposed paper by e-mail to [email protected] no later than 15th September 2024.

• Abstract must contain details about the names of the author(s), contact details, institutional affiliation, and designation. • Maximum of 5 keywords are to be provided along with the abstract.

• Abstract must be submitted in word (.doc or .docx) format only.

• Co-authorship is permissible.

• Acceptance of the abstracts shall be communicated via email by 30th September 2024.

• On selection of the abstract, the author(s) must pay the required registration fees for conference presentation, no later than 30th September, 2024.

The link for the payment portal shall be sent to the authors whose abstract would be selected along-with the acceptance mail.

IMPORTANT DATES

• Submission of Abstract: 15th September, 2024
• Registration: 30th September, 2024
• Submission of Full Papers: 15th October, 2024
• Conference dates: 27-29th November, 2024

CONFERENCE FEE

• Academicians/ Professionals: 2500
• Ph.D. Scholars:1500
• UG and PG Students: 500

For more details, refer here

• Call for papers , knowled

Home » Blog » Call for Papers! International Conference on MULTIDISCIPLINARY APPROACH TO ACHIEVING SUSTAINABILITY IN TRADE, INVESTMENT AND COMPETITION LAW! 27th – 29th November 2024!

Rupal Dhull

Leave a reply cancel reply.

Save my name, email, and website in this browser for the next time I comment.

• Conferences/Seminars
• Free Courses
• About KS Times
• Article/Blogs
• Articles/Blogs

Investment Arbitration: Jurisdiction and Admissibility

in Marc Bungenberg and others (eds), International Investment Law (Nomos 2015), 1261-1336

81 Pages Posted: 8 Feb 2014 Last revised: 21 Aug 2023

Michael Waibel

University of Vienna - Faculty of Law

Date Written: January 31, 2014

Jurisdiction refers to the power of a court or judge to entertain an action. By contrast, admissibility concerns the power of a tribunal to decide a case at a particular point in time in view of possible temporary or permanent defects of the claim. With admissibility, the question is whether the claim is ready for decision at this stage. Whereas jurisdiction typically looks at the dispute as a whole, admissibility is concerned with particular claims. Even though the distinction between jurisdiction and admissibility is a longstanding one in international law, the delimitation of the two is not always straightforward, and in addition the terminology is sometimes inconsistent. In investment arbitration, the boundary between jurisdiction and admissibility is particularly fluid. After introducing the central concepts – jurisdiction, admissibility and applicable law, Section B examines different modalities of how states and investors consent to the adjudication of their investment disputes. Section C turns to three general jurisdictional questions: Kompetenz-Kompetenz; the existence of a legal dispute and counterclaims. Section D turns to the scope of jurisdiction, and looks the four dimensions of jurisdiction (personal, territorial, temporal and subject matter). Section E distinguishes issues of admissibility from issues jurisdiction, and explains how jurisdiction and admissibility interact.

Keywords: international dispute settlement, jurisdiction, admissibility, investment arbitration, Kompetenz-Kompetenz, counterclaims

JEL Classification: K33, K41

Suggested Citation: Suggested Citation

Michael Waibel (Contact Author)

University of vienna - faculty of law ( email ).

Schottenbastei 10-16 Vienna, A-1010 Austria

Do you have a job opening that you would like to promote on SSRN?

Paper statistics, related ejournals, university of cambridge faculty of law legal studies research paper series.

Subscribe to this free journal for more curated articles on this topic

Negotiation & Dispute Resolution eJournal

Subscribe to this fee journal for more curated articles on this topic

International Economic Law eJournal