Originally from the Boundaries of Investment Arbitration

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A. THE REALITY OF BOUNDARY CROSSINGS

It is widely assumed that when a claim is brought by an investor under an international investment agreement (IIA) that provides for investor-state dispute settlement (ISDS), that claim is brought under, is governed by, and needs to be interpreted in accord with that agreement. Because investor-state arbitrators are typically licensed to interpret only the treaty to which the respective state parties have acceded, it is assumed that ISDS case law addresses the law under specific IIAs. It is assumed that to the extent international investment law, arising from the proliferating body of investor-state case law comprising thousands of IIAs, is a single regime, that law consists of the investor guarantees contained in such treaties—namely their national treatment, most-favored-nation treatment, fair and equitable treatment, protections from uncompensated expropriation, and other investment protections—along with any treaty exceptions also contained in IIAs. But while it is true that a state gives its prospective consent to investor-state arbitration only in anticipation of being subject to the particular rules contained in those IIAs that are in force with respect to that state, the law that investor-state arbitrators interpret, rely on, or apply is not strictly confined to the contents or standards in IIAs. The sources and contents of international investment law are not so limited.

Chapter Two of this book canvasses ISDS rulings in which litigants in investor-state disputes, and in turn arbitrators charged with resolving them, turn to European human rights law, that is the substantial jurisprudence interpreting the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) by the European Court of Human Rights (ECtHR or Strasbourg Court). Chapter Three does the same with respect to rulings that draw on trade law as interpreted under the WTO’s Dispute Settlement System. These chapters examine how often citations to these “non-investment” sources of law appear in public ISDS rulings contained in the PluriCourt Investment Treaty Arbitration Database (PITAD) during the period from 1990 through June 2016. As is further explained in those chapters, the PITAD database is one of the most comprehensive set of rulings available, containing over 300 investor-state awards, rendered by ICSID and non-ICSID tribunals over the past 26 years that have not been discontinued or settled.  These two chapters, and the accompanying appendices and tables at the end of this book, provide a snapshot of how often these two sources of authority are cited and explain why this occurs.