Long Live Monetary Gold *Terms and Conditions Apply

Zachary Mollengarden and Noam Zamir want to take back to basics the principle associated with the Monetary Gold Removed from Rome in 1943 (Monetary Gold) judgment of the International Court of Justice (ICJ). Their “categorical” and mostly doctrinal claim, underpinned by policy concern about “the tensions between the bilateral presuppositions of the Statute and the increasingly multilateral nature of international affairs and international disputes” is “that the Monetary Gold principle is irreconcilable with the ICJ Statute's jurisdictional architecture.” The tension between bilateralism and community interests often provides an attractive analytical perspective, and points raised by the authors might be relevant in calibrating certain aspects of the principle. But its wholesale critique, while skillfully put, is ultimately unpersuasive. Careful consideration of basic instruments and issues is commendable but an exclusive focus that does not engage with the broader international legal process will miss its unmistakable and widespread endorsement of the Monetary Gold principle. Even the concern about the multilateral context ultimately counts against rather than in favor of their argument. Multilateral sensitivities can already be articulated within the four corners of Monetary Gold, and Mauritius/Maldives, delivered just as the ink was drying on the first draft of this essay, is a perfectly timed example for that

A Case against Crippling Compensation in International Law of State Responsibility

The obligation of States to provide full reparation for internationally wrongful acts, including by full compensation, is one of the bedrock principles of international law. The article challenges this principle for cases where compensation is crippling for the responsible State or its peoples, which can occur when State responsibility is implemented before international courts and tribunals. The International Law Commission's decision not to qualify full reparation for instances of crippling compensation in its influential Articles on State responsibility was an unpersuasive legal position to adopt in 2001, and its rationale has aged badly. However, the failure by States and other actors to challenge it in the following two decades signified its endorsement by the international legal process. Nevertheless, the case against the permissibility of crippling compensation in modern international law can still be made, both on a case‐by‐case basis and at the level of customary secondary rules of State responsibility

Crippling Compensation in the International Law Commission and Investor-State Arbitration

Is there an exception to the principle of full reparation in international investment arbitration for cases in which full compensation is crippling for the responsible State or its peoples? The routine presentation and consideration of billion-dollar-plus investment arbitration claims in the first half of 2021 suggests that this subject has not been invented in order to enable it to be written about but is one of considerable importance for the field of international investment law and its actors. The frame of reference in a discussion about compensation in investment law is provided by the law of State responsibility, strongly shaped by the 2001 International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (2001 ILC Articles on State Responsibility), which treat crippling compensation as permissible as a matter of content of responsibility. The argument for the permissibility of crippling compensation explicitly assumed the rarity of such claims; safeguards in primary, secondary, and tertiary rules for the few cases when they did arise; and the enlightened self-interest of States as repeat-playing actors in not making them—and perhaps implicitly scepticism about compound interest and Discount Cash Flow valuation. None of these assumptions holds true in modern investor State arbitration. Nevertheless, the predominant reaction to crippling compensation claims has been silence by tribunals and respondent States, suggestive in legal terms of endorsement of their permissibility in line with the 2001 ILC Articles on State Responsibility. There is some scope for addressing crippling compensation within the 2001 ILC Articles on State Responsibility, both indirectly (challenging the meaningfulness of the question in the first place or considering crippling compensation as part of the general discussion of the content of responsibility) and directly, under the rubrics of circumstances precluding wrongfulness and enforcement. The case can also be made for moving beyond the 2001 ILC Articles on State Responsibility, by emphasising the difference between implementation of responsibility in inter-State and investor–State legal relations or even directly arguing for a change of the applicable customary rule

Masters and guardians of international investment law: How to play the game of reassertion

Any discussion of reassertion of control by Contracting Parties over international investment law must proceed on the basis of certain assumptions about the nature of the legal order within which it takes place. The intellectual framework for this chapter is provided by the mainstream view of public international law, described by James Crawford in the following terms: It goes without saying – but may go even better by being said – that international law is not the only frame of reference for discussion of international investment matters, nor is it necessarily a better frame than others. Much valuable work in the field is done by scholars with a background in international commercial arbitration, international commercial litigation and domestic public law; by scholars of critical-theoretical or inter-disciplinary persuasions; and by economists and political scientists. But the perspective of public international law, articulated with appropriate modesty and with no necessary claim to greater legitimacy, can at the very least usefully complement these voices. International investment law is public international law. There is nothing conceptually different, innovatory or sui generis about it