Proportionality And Deference In Investor State Arbitration

Author : Caroline Henckels
Publisher :
ISBN 13 : 9781316437988
Total Pages : pages
Book Rating : 4.81/5 ( download)

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Download or read book Proportionality and Deference in Investor-state Arbitration written by Caroline Henckels and published by . This book was released on 2015 with total page pages. Available in PDF, EPUB and Kindle. Book excerpt: In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.

Author : Caroline Henckels
Publisher : Cambridge University Press
ISBN 13 : 1107087902
Total Pages : 265 pages
Book Rating : 4.03/5 ( download)

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Download or read book Proportionality and Deference in Investor-State Arbitration written by Caroline Henckels and published by Cambridge University Press. This book was released on 2015-10-15 with total page 265 pages. Available in PDF, EPUB and Kindle. Book excerpt: Caroline Henckels examines how investment tribunals should balance competing state and investor interests in determining state liability in regulatory disputes.

Author : Valentina Vadi
Publisher : Edward Elgar Publishing
ISBN 13 : 1785368583
Total Pages : 352 pages
Book Rating : 4.85/5 ( download)

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Download or read book Proportionality, Reasonableness and Standards of Review in International Investment Law and Arbitration written by Valentina Vadi and published by Edward Elgar Publishing. This book was released on 2018-04-27 with total page 352 pages. Available in PDF, EPUB and Kindle. Book excerpt: International investment law is one of the most dynamic fields of international law, and yet it has been criticised for failing to strike a fair balance between private and public interests. In this valuable contribution to the current debate, Valentina Vadi examines the merits and pitfalls of arbitral tribunals’ use of the concepts of proportionality and reasonableness to review the compatibility of a state’s regulatory actions with its obligations under international investment law.

Author : Gebhard Bücheler
Publisher :
ISBN 13 : 0198724330
Total Pages : 369 pages
Book Rating : 4.39/5 ( download)

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Download or read book Proportionality in Investor-State Arbitration written by Gebhard Bücheler and published by . This book was released on 2015 with total page 369 pages. Available in PDF, EPUB and Kindle. Book excerpt: While international investment law is one of the most dynamic and thriving fields of international law, it is increasingly criticized for failing to strike a fair balance between private property rights and the public interest. Proportionality is a tool to resolve conflicts between competing rights and interests. This book assesses its current role, its potential, and its limits in investor-State arbitration. Proportionality is often lauded for reconciling colliding interests. This book identifies three factors arbitrators should consider before engaging in a proportionality analysis: the rule of law, the risk of judicial law-making, and the availability of a value system that guides the proportionality analysis. Apart from making suggestions when arbitrators should apply proportionality and when not to, the book outlines what States can do to recalibrate the balance between private property rights and the public interest if they wish to do so without dismantling the current system of investor-State arbitration. Proportionality in Investor-State Arbitration considers whether and to what extent the notion of general principles of law within the meaning of Article 38(1)(c) of the ICJ Statute and the concept of systemic integration enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties provides a valid legal foundation for applying proportionality in investor-State arbitration.

Author : Caroline E. Foster
Publisher :
ISBN 13 :
Total Pages : 8 pages
Book Rating : 4.70/5 ( download)

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Download or read book Is Investment Treaty Arbitration 'Review'? Reviewing Caroline Henckels' Proportionality and Deference in Investor-State Arbitration written by Caroline E. Foster and published by . This book was released on 2017 with total page 8 pages. Available in PDF, EPUB and Kindle. Book excerpt: This brief review devotes attention to the important contemporary question underlying Dr. Henckels' book of whether investment treaty arbitration ought to be characterised as review.

Author : Caroline Henckels
Publisher : Cambridge University Press
ISBN 13 : 1316432300
Total Pages : 265 pages
Book Rating : 4.03/5 ( download)

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Download or read book Proportionality and Deference in Investor-State Arbitration written by Caroline Henckels and published by Cambridge University Press. This book was released on 2015-10-15 with total page 265 pages. Available in PDF, EPUB and Kindle. Book excerpt: In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.

Author : Esmé Shirlow
Publisher : Cambridge University Press
ISBN 13 : 1108490972
Total Pages : 381 pages
Book Rating : 4.79/5 ( download)

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Download or read book Judging at the Interface written by Esmé Shirlow and published by Cambridge University Press. This book was released on 2021-02-18 with total page 381 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book investigates how international adjudicators defer to State decision-making authority, and what that reveals about the domestic-international interface.

Author : Caroline Henckels
Publisher :
ISBN 13 :
Total Pages : 33 pages
Book Rating : 4.30/5 ( download)

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Download or read book Indirect Expropriation and the Right to Regulate written by Caroline Henckels and published by . This book was released on 2019 with total page 33 pages. Available in PDF, EPUB and Kindle. Book excerpt: International investment tribunals considering claims of indirect expropriation have increasingly taken into account the host state's regulatory purpose in their analysis, alluding to the need for measures to achieve a balance between host state and investor interests. Some tribunals have attempted to employ proportionality analysis in their determination of claims, but their reasoning has been methodologically problematic and characterized by a stringent standard of review, diverging from the approach of other international and supranational fora hearing disputes concerning the exercise of public power affecting individual rights and interests. Investment tribunals should be more deferential in performing proportionality analysis, mindful of host state authorities' greater democratic legitimacy and proximity to host state communities, and tribunals' comparatively weak institutional capacity. Such an approach would entail greater deference to host states in evaluating the legitimacy of a measure's objective, the measure's suitability and necessity, and the ultimate balance between the interests of the host state and of the investor. An appropriately deferential use of proportionality analysis is a more coherent approach to indirect expropriation that provides greater space for host states to take measures in the public interest, yet provides sufficient scrutiny to control misuse of public power.

Author : Xu Qian
Publisher : Kluwer Law International B.V.
ISBN 13 : 9403522054
Total Pages : 396 pages
Book Rating : 4.50/5 ( download)

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Download or read book Water Services Disputes in International Arbitration written by Xu Qian and published by Kluwer Law International B.V.. This book was released on 2020-05-12 with total page 396 pages. Available in PDF, EPUB and Kindle. Book excerpt: Water Services Disputes in International Arbitration Reconsidering the Nexus of Investment Protection, Environment, and Human Rights by Xu Qian The argument that universal access to water is a human right is based on the fact that life on Earth cannot exist without water. Yet the enormous cost of building and maintaining water service infrastructure, purifying, monitoring quality, and providing sanitation services is beyond the means of many of the States most in need. Foreign investment is thus mandated—hence the often acrimonious tension manifest in investor-State disputes over water rights. This book offers the first in-depth analysis of both international treaty norms and their interpretation by arbitral tribunals applicable to investment in water and sanitation services, complete with thoroughly researched recommendations for those arbitral practitioners in the eye of the storm. Like no previous study the book clearly reveals how to reconcile the economic and fundamental human interests arising from investment in water and sanitation services under the international investment regime. Among many vital issues, the author highlights the importance of the following: legitimacy of a State’s alleged regulatory objectives, the suitability of the measures undertaken to achieve the objective, and whether there are less restrictive means available; legal framework and stability of the State; applicable law, changes in law, and emergency circumstances; economic issues such as water pricing; profit-driven private companies’ reluctance to serve the poor; investment tribunals’ generation of a “regulatory and jurisprudential regime” on water and sanitation services; and determination of liability in relation to expropriation, fair and equitable treatment, and necessity. Arguing that the current investment treaty and arbitral case law framework can regulate water and sanitation services if certain interpretations are favored by adjudicators, the author offers viable, sustainable, and reasonable legal solutions. A detailed annex presents cases decided before a variety of arbitral tribunals, as well as relevant WTO and ICJ cases, and reviews critical literature in the field. The increasing number of cases involved with States’ regulatory measures shows that stakes around water services generate specific legal problems which are new in the world of international economic law. As an incisive investigation of what has been called the “incursion of investment tribunal decisions into the regulatory autonomy of host States,” this profound and innovative analysis provides a coherent and consistent method of review that provides greater certainty to both States and investors and deters abuse of power. It will be welcomed by policymakers and stakeholders interested in the implications of “globalization” of water services for the capacity to adapt to climate change and will suggest ways to enable States to better manage vital water services, even after privatization to foreign companies.

Author : Alexander W. Resar
Publisher : BRILL
ISBN 13 : 9004390596
Total Pages : 95 pages
Book Rating : 4.91/5 ( download)

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Download or read book Investor State Arbitration in a Changing World Order written by Alexander W. Resar and published by BRILL. This book was released on 2021-06-22 with total page 95 pages. Available in PDF, EPUB and Kindle. Book excerpt: Investor State Arbitration In A Changing World Order addresses challenges and reform proposals that dominate contemporary discussion of investor state arbitration. The authors argue that, although important for the institution’s development, current reforms are insufficient to guarantee investor state arbitration’s survival. Instead, if international investment arbitration is to survive and flourish, national governments must distribute more equally the benefits of international investment and trade.