(Re)Calibration, Standard-Setting and the Shaping of Investment Law and Arbitration

Calibrating or (re)calibrating investment law and arbitration—depending on whether the exercise takes place for the first or a subsequent time—is different from rebalancing investment law and arbitration. A balancing exercise denotes a situation in which different elements are equal or in the correct proportions to maintain a sort of equilibrium. This Essay argues that investment law and arbitration are not necessarily about creating a situation in which all “elements” are in balance and that (re)calibrating is an interesting starting point for a discussion about the contemporary regime of investment law and arbitration, and especially to explore, understand, or visualize the current and future developments in the field. The central questions in this Essay include determining what the standards are and who sets them. This Essay examines (re)calibration and looks at the process from the vantage point of the standards which are used for such (re)calibration and evaluates how the standards have evolved substantially over the years and how new treaties—in an exercise of (re)calibration—are in fact following or adapting to these new standards

Host States\u27 Due Diligence Obligations in International Investment Law

Due diligence is present in a variety of aspects of the protection of foreign investors in international investment law and plays an important role in several aspects of the protection of foreign investors. In particular, certain standards of investment protection, notably full protection and security ( FPS ) include an obligation for the State to act with due diligence. This articles seeks to establish an explanatory framework for past and future decisions of arbitral tribunals which have applied or will be confronted to applications of the due diligence standard in international investment law, by providing a typology of the different possible applications of the standard in relation to the obligations of the host State. It addresses the role of due diligence in the law governing State responsibility, and the application of due diligence in the customary norms relating to the protection of aliens. Based on these two sections, it next discusses the principle in contemporary investment law, focusing on the application of due diligence in the FPS, the international minimum standard ( IMS ) and the fair and equitable treatment ( FET ) standards of treatment. It then addresses the question of whether applying due diligence allows for the possibility of taking into account the relative capacities of host States, and the consequences the application of the due diligence standard has on the compensation for damages

Reforming International Investment Law: Opportunities, Challenges, Paradigms

Transcription of a panel discussion

The Use of Precedent and External Case Law by the International Court of Justice and the International Tribunal for the Law of the Sea

Exploring the Frontiers of International La

NGOs and the Public Interest : The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes

Recent decades have seen a significant increase in the number of legal dispute settlement mechanisms, which has opened the door for NGO participation as friends of the court. Confronted with unsolicited submissions by NGOs, the WTO dispute settlement organs and international investment tribunals have accepted the legality of such submissions. However, despite various decisions on the principled legality of amicus curiae submissions by NGOs, the effective acceptance or consideration of such submissions in particular cases remains limited. This Article aims to systematize the involvement of NGOs in international economic and investment disputes. This Article extracts the general principles for NGO participation in such disputes, both from the perspective of the legality of third-party interventions and from the perspective of the rationale, utility, and usefulness of such interventions in the dispute settlement processes, elements often linked to the public interest or public character of a dispute