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Arbitrating the Conduct of International Investors

Book description

Investment arbitration has emerged from modest beginnings and matured into an established presence in international law. However, in recent years it has drifted from the reciprocal vision of its founders. This volume serves as a comprehensive guide for those who wish to reform international investment law from within, seeking a return to the mutuality of access that is in arbitration's essence. A detailed toolset is provided for enhancing the access of host States and their nationals to formal resolution mechanisms in foreign investment disputes. It concludes by offering model texts to achieve greater reciprocity and access to justice in the settlement of disputes arising from international investment initiatives. The book will appeal to all those interested in the future of international investment law, including an international audience of scholars, government officials, private sector actors, and private citizens alike, and including diverse constituencies, communities, and collectives of host State nationals.


'This is a highly thoughtful and timely book, whose innovative proposals deserve careful study. Faced with the litany of criticism investor-State arbitration has recently been exposed to, it seeks to reform rather than surrender by setting out ways to rebalance what many perceive as a structural bias in favor of investors. The authors address the interests of a diversified group of stakeholders and suggest the inclusion of access to effective recourse for host States and their nationals in international investment treaties. With innovative proposals like these, including model texts, winter may not be coming in investor-State arbitration quite yet.  A commendable work.'

Gary Born - Partner, Chair of the International Arbitration Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP

‘A blind spot, as well as a source of growing criticism of international investment law, is that it lacks binding investor obligations and that investment arbitration as currently configured does not allow host states to bring claims against investors. The authors of this book have taken a hard look at the options, and provide an admirable and practical toolbox to address this blind spot. It will become the essential point of reference.'

Michael Waibel - Fellow, Jesus College, Cambridge, Deputy Director, Lauterpacht Centre for International Law

With its very structured approach to relevant aspects of investment arbitration, driven by a clear demand to go ‘back to the roots', this book is a thought-provoking, useful and practical guide to today's investment arbitration practice. Together with the model texts it offers, this all-comprehensive book will prove to be an equally useful tool for counsel, arbitrators and negotiators alike.'

Gabrielle Nater-Bass - Partner, Homburger AG, President of the Arbitration Court of the Swiss Chambers' Arbitration Institution

‘In this book, the authors put forth a resounding functionalist challenge to the dominant theory of locus standi in investor-state arbitration by not only skillfully demonstrating the artificiality of the barriers imposed by decades of jurisprudence but also by proposing a cogent analytical framework for the leveling of the playing field. Their synthesis of the existing status quo brilliantly demonstrates the self-inflected crisis of confidence and shows how the equalization of access to justice could remedy the realities and perceptions of injustice in this field. This profound legal academic work is also a remarkably provocative policy and practice advisory.'

Won Kidane - Seattle University School of Law, Principal, Addis Law Group LLP

‘A disruptive and forceful analysis of the status quo of the rules of international investment arbitration. This book articulates an innovative questioning of the one-way-street system which virtually precludes access for both States and many non-State actors alike. Furthermore, it documents and denounces its inherent lack of balance and persuasively advocates the participation of more stakeholders. Reform at the investment-treaty level should definitely follow.'

Roberto Dañino - Former Prime Minister of the Republic of Peru, Former Senior Vice President and General Counsel of The World Bank Group, Former Secretary-General of the International Centre for Settlement of Investment Disputes

‘This book will get attention. It will surprise those who think investor-State arbitration claims were never meant to be - and should not be - available to host States and their nationals. Amado, Kern and Doe Rodriguez challenge the assumption that it is always the investor who needs a leg-up to seek justice from a State, however disparate their status and power. The models the authors so deftly explore and graphically illustrate lead to fascinating permutations of possible Davids and Goliaths.'

Lucy Reed - Director, Centre for International Law and Professor, National University of Singapore

‘In recent years, a storm of popular discontent with the one-sidedness of international investment protection by arbitration as it stands today has shaken the legal landscape. The system is widely seen as a one-way street, favoring access to justice for foreign investors, while subjecting attempts at equivalent recourse available to host states as well as affected individuals and populations to severe limitations. Reactions to this perceived imbalance range from unilateral termination of existing treaties to initiatives for a fundamental restructuring of the present investment arbitration regime. The danger of an overkill is lurking. That is precisely why I emphatically welcome this new book: it sets out a variety of ways by which interests of stakeholders other than investors can be admitted into the present system without denaturating or even destroying it. The volume is an eminently constructive and thought-provoking contribution to the debate on ‘business and human rights', written by three authors thoroughly on top of their subject; it deserves the attention of all experts in international investment law and policy.'

Bruno Simma - Judge, Iran-United States Claims Tribunal and International Court of Justice (2003–12), University of Michigan

‘At a time of criticism and backlash, this volume appears as a very useful tool set for reconsidering and reforming a good part of the international system of investment arbitration. Its highly stimulating contribution is to get back to the essence of arbitration which is the mutuality of access by allowing for the adjudication of claims submitted by the host State and its nationals. Animated by a spirit of imagination, creativity and initiative, this book, including its model texts, provides with new perspectives which might prove to be of decisive help for a readjustment of the settlement of disputes mechanisms between States and foreign investors.'

Pierre-Marie Dupuy - Graduate Institute of International and Development Studies, Geneva

‘Two pervasive criticisms plaguing investor-state arbitration are its existing locus standi requirement and lack of transparency. The authors have addressed this backlash by providing both a sound theoretical basis for investment stakeholders to access investment arbitration and lay a claim against investors, and practical proposals to achieve this. The proposals in this work warrant proper consideration by stakeholders, counsel, arbitrators, and negotiators of investment initiatives.'

Tan Sri Dato' Cecil Abraham - Senior Partner, Cecil Abraham and Partners, Kuala Lumpur

‘This valuable book addresses a disequilibrium at the heart of investor-State arbitration: the privileged position of the investor. How can those adversely affected by an investor's conduct-the Host State or nationals of the Host State-seek redress in an investor-State arbitration? How might the investor be required to pay the full economic costs of a failed investment? How might the Home State of the investor be liable for the failure of an investment? This is an original and incredibly timely book, given the current legitimacy crisis in investor-State arbitration, and the need to ensure the equal participation of all stakeholders in the resolution of investment disputes.'

Bernardo M. Cremades Sanz-Pastor - Partner, B. Cremades y Asociados

‘The research and reflection that the authors have devoted to this work is prodigious, but therein does not lie its significant merit. (At best, the benefit of most long hours spent in libraries does not, alas, go beyond the satisfaction of a single person.) It is rather the ambitiousness and originality of their project. They contemplate nothing less than the ways and means of transforming the resolution of disputes involving foreign investment from (A) what they perceive, in its current binary shape, as limited (at the international level) to the establishment of arbitral fora designed to hear claims by individual aggrieved investors against individual host states to (B) a very big tent in which everyone claiming to be concerned by the conditions and effects of foreign investment may have standing to pursue rights or establish obligations. That this exploration gives rise to likely potential controversies with respect to both policy and practicality is an understatement, but that is as it should be. Think of the 29th of May 1913, when half the audience angrily stomped out of the Théâtre des Champs-Élysées. They didn't like Stravinsky's Sacre du printemps …'

Jan Paulsson - Partner, Three Crowns LLP

‘Unlike most other books in this area which either teach black letter international arbitration or seek to describe or criticize the system as it is, this book seeks to be much bolder: to redefine the status quo. It raises a number of timely, pertinent, and applicable questions not simply in relation to the mutuality of access to international dispute resolution fora but also broader questions pertaining to international investment and sustainable development. It suggests a host of potential mechanisms applicable within the existing legal framework and provides models texts within which to address and ultimately achieve mutuality of access for host States. These model texts, and the work of these distinguished Authors, will no doubt facilitate the opening of a dialogue to explore and address not only whether such changes should be implemented, but also how to achieve such an aim for the benefit of all. And for that, both States and investors will ultimately be thankful.’

Baiju Vasani Source: ICC Dispute Resolution Bulletin

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