Alongside now-controversial investment treaties, many states also maintain domestic investment statutes. Although these laws offer protections similar to investment treaties and are increasingly applied in investor-state arbitration, they have—unlike the treaties—attracted limited scholarly scrutiny. This article argues that investment statutes can plausibly be characterized either as unilateral acts in international law or as domestic law. The article examines the significant consequences that follow from these characterizations, providing the first comprehensive analysis of these hybrid statutes.
For invaluable comments, criticisms, and assistance, I thank Farrah Ahmed, Jonathan Bonnitcha, Hilary Charlesworth, Kathleen Claussen, Charles-Emmanuel Côté, Alison Duxbury, Andrea Leiter, Martins Paparinskis, Lauge Poulsen, Sebastián Rioseco, Tim Stephens, Thomas van Giffen, Tania Voon, the participants in the 2018 Four Societies conference and the 2018 Society of International Economic Law conference, and the anonymous AJIL reviewers. I am also very grateful to the Melbourne Law School Academic Research Service for research assistance, and to the Australian and New Zealand Society of International Law for enabling my attendance at the 2018 Four Societies conference.
1 UNCTAD, World Investment Report 2017: Investment and the Digital Economy 111 (2017) (there were 3,324 investment treaties concluded (but not all in force) at the end of 2016).
2 UNCTAD, Investment Policy Monitor: Investment Laws 1 (2016), available at unctad.org/en/PublicationsLibrary/webdiaepcb2016d5_en.pdf.
3 Id. at 6.
4 Eight FILs in UNCTAD’s survey included a fair and equitable treatment clause. Id. at 7. See also Dumberry, Patrick, Has the Fair and Equitable Treatment Standard Become a Rule of Customary International Law?, 8 J. Int'l Disp. Settlement 155, 175 (2017); Parra, Antonio, Principles Governing Foreign Investment, as Reflected in National Investment Codes, 7 ICSID Rev. 428, 436 (1992).
5 UNCTAD’s review counted twenty-six FILs that contained clear consent to arbitration, similar to clauses found in investment treaties. See supra note 2, at 10. A further eleven FILs contained unclear clauses that potentially offered consent to arbitration. FILs differ regionally; a recent study of FILs from the ten ASEAN nations observed that none contained consent clauses. Jonathan Bonnitcha, Investment Laws of ASEAN Countries: A Comparative Review 4 (2017).
6 ICSID, Caseload – Statistics, at icsid.worldbank.org/en/Pages/resources/ICSID-Caseload-Statistics.aspx.
7 UNCTAD, supra note 1, at 111.
8 UNCTAD, supra note 2, at 2.
9 The existing literature on FILs has mostly been confined to analyzing the proper tools for interpreting FIL arbitration clauses. See, e.g., David Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law, in Looking to the Future: Essays on International Law in Honor of W. Michael Reisman 649 (Mahnoush Arsanjani, Jacob Katz Cogan, Robert D. Sloane & Siegfried Wiessner eds., 2010); Potestà, Michele, The Interpretation of Consent to ICSID Arbitration Contained in Domestic Investment Laws, 27 Arb. Int'l 149 (2011); Andreeva, Yulia, Interpreting Consent to Arbitration as a Unilateral Act of State: A Case Against Conventions, 27 Arb. Int'l 129 (2011); Makane Moïse Mbengue, National Legislation and Unilateral Acts of States, in International Investment Law: The Sources of Rights and Obligations 183 (Tarcisio Gazzini & Eric de Brabandere eds., 2012).
10 UNCTAD, supra note 2, at 11. For a notable recent exception, see Bonnitcha, supra note 5.
11 See Getma Int'l v. Guinea, ICSID Case No. ARB/11/29, Decision on Jurisdiction, para. 106 (Dec. 29, 2012); AES Corp. v. Kazakhstan, ICSID Case No. ARB/10/16, Award, para. 219 (Nov. 1, 2013) [hereinafter AES]. See also Caratube Int'l Oil Co. LLP v. Kazakhstan, ICSID Case No. ARB/13/13, Award, para. 419 (Sept. 27, 2017) [hereinafter Caratube]; and Interocean Oil Dev. Co. v. Nigeria, ICSID Case No. ARB/13/20, Decision on Preliminary Objections, para. 124 (Oct. 29, 2014) [hereinafter Interocean], describing FIL claims as “international law” claims.
12 See, e.g., Lauge Poulsen, Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries (2015).
13 UNCTAD, supra note 2, at 2.
14 Salacuse, Jeswald & Sullivan, Nicholas, Do BITs Really Work?: An Evaluation of Bilateral Investment Treaties and Their Grand Bargain, 46 Harv. Int'l L.J. 67 (2005).
15 See, e.g., CEMEX Caracas Investments B.V. v. Venezuela, ICSID Case No. ARB/08/15, Decision on Jurisdiction, para. 126 (Dec. 30, 2010) [hereinafter CEMEX] (“For a State to commit itself through treaties creating reciprocal obligations is one thing; to commit itself unilaterally without counterpart is another.”). See also Brandes Investment Partners, LP v. Venezuela, ICSID Case No. ARB/08/3, Award, para. 105 (Aug. 2, 2011) [hereinafter Brandes].
16 Vladimir Degan, Sources of International Law 288 (1997) (“International relations are so rich in various situations that it is quite conceivable that a State can find it suitable to its own interests to assume precise and definite legal obligations unilaterally, instead of entering into negotiations with other States in order to conclude a treaty.”).
17 FILs are typically legislative instruments, although some have been enacted via executive action. Venezuela's FIL, for instance, is an “executive decree with the rank and force of Law” issued by former President Chavez, using powers delegated by the National Assembly. See Brandes, supra note 15, para. 25.
18 National parliaments may, of course, become involved at the ratification stage. See, e.g., Anthony Aust, Modern Treaty Law and Practice 103–04 (2007).
19 UNCTAD, supra note 2, at 5.
20 Many commentators analyze FILs, like investment treaties, as purported tools for attracting foreign investment. See, e.g., Buxbaum, Richard & Riesenfeld, Stefan, Investment Codes, in Encyclopedia of Public International Law (Bernhardt, Rudolf ed., 1985); Parra, supra note 4; Moshe Hirsch, The Arbitration Mechanism of the International Center for the Settlement of Investment Disputes 51 (1993); International Finance Corporation/World Bank, Investment Law Reform: A Handbook for Development Practitioners, at ix (2010); UNCTAD, supra note 2, at 4; Campbell McLachlan, Laurence Shore & Matthew Weiniger, International Investment Arbitration: Substantive Principles 44 (2017).
21 Bonnitcha, supra note 5, at 8. See also UNCTAD, supra note 2, at 9.
22 See generally Bonnitcha, supra note 5; UNCTAD, supra note 2; McLachlan, Shore & Weiniger, supra note 20, at 44.
23 Buxbaum & Riesenfeld, supra note 20; International Finance Corporation, supra note 20, at ix, 18; Parra, supra note 4, at 428; World Bank, Legal Framework for the Treatment of Foreign Investment, Vol. II, at 19 (1992).
24 See Poulsen, supra note 12, at xv–xvi; Jonathan Bonnitcha, Lauge Poulsen & Michael Waibel, The Political Economy of the Investment Treaty Regime 223–26 (2017).
25 Commentators in the 1990s viewed investment treaties and investment laws as complementary tools to attract foreign investment. See, e.g., Marchais, Bertrand, The New Investment Law of the Arab Republic of Egypt, 4 ICSID Rev. 297, 308 (1989); Kofele-Kale, Ndiva, Host-Nation Regulation and Incentives for Private Foreign Investment: A Comparative Analysis and Commentary, 15 N.C. J. Int'l L & Com. Reg. 361, 363 (1990); Marchais, Bertrand, The 1989 Investment Code of Madagascar, 5 ICSID Rev. 73, 79 (1990); Peter, Chris Maina, Promotion and Protection of Foreign Investments in Tanzania: A New Investment Code, 6 ICSID Rev. 42, 44–45 (1991).
26 The World Bank's Foreign Investment Advisory Service, the Multilateral Investment Guarantee Agency, the UN CTC, and private lawyers funded by USAID were instrumental in drafting and advising on many developing and post-Communist countries’ FILs, particularly during the 1990s. Poulsen, supra note 12, at 12, 76–81, 84, 101, 180.
27 Bonnitcha, Poulsen & Waibel, supra note 24, at 211; OPIC Karimun Corp. v. Venezuela, ICSID Case No. ARB/10/14, Award, para. 114 (May 28, 2013).
28 Vandevelde, Kenneth, U.S. Bilateral Investment Treaties: The Second Wave, 14 Mich. J. Int'l L. 621, 634 (1993); Poulsen, supra note 12, at 86.
29 See UNCTAD, Investment Laws Navigator, available at investmentpolicyhub.unctad.org/InvestmentLaws; UNCTAD, International Investment Agreements Navigator, available at investmentpolicyhub.unctad.org/IIA.
30 The Democratic Republic of the Congo's 2002 FIL contains provisions on expropriation and fair and equitable treatment (which were held to have been breached in the 2014 award in Lahoud v. DRC, at paras. 488 and 516). Nevertheless, the DRC signed eight BITs after enacting its FIL (although none is yet in force). Guinea has also signed many investment treaties since enacting its 1985 FIL (which was found breached in 2016 in Getma v. Guinea, at paras. 383 and 387).
31 Poulsen, Lauge & Aisbett, Emma, Diplomats Want Treaties: Diplomatic Agendas and Perks in the Investment Regime, 7 J. Int'l Disp. Settlement 72 (2016); see also Bonnitcha, Poulsen & Waibel, supra note 24, at 220–23.
32 Bonnitcha, Poulsen & Waibel, supra note 24, at 198–200.
33 Anthea Roberts, Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System, 107 AJIL 45 (2013).
34 Id. at 74.
35 Id. at 48.
36 Roberts, Anthea, Triangular Treaties: The Extent and Limits of Investment Treaty Rights, 56 Harv. Int'l L.J. 353, 403–16 (2015).
37 Roberts, supra note 33, at 47.
38 Id. at 50–53.
39 Southern Pacific Prop. v. Egypt was filed in 1984, and Tradex Hellas v. Albania was filed in 1994. Manufacturers Hanover Trust v. Egypt commenced in 1989 but was settled in 1993, while Ghaith Pharaon v. Tunisia was filed in 1986 and settled in 1988.
40 Roberts, supra note 33, at 47, 70; see also Continental Casualty Co. v. Argentina, ICSID Case No. ARB/03/9, Award, paras. 189–230 (Sept. 5, 2008).
41 Based on a review of UNCTAD, Investment Laws Navigator, supra note 29.
42 Roberts, supra note 33, at 64–65.
43 Id. at 69.
44 In the investment treaty context, Schill has similarly advocated an interpretive approach based on both domestic and international public law, including human rights law. International Investment Law and Comparative Public Law (Stephan Schill ed., 2010).
45 Roberts, supra note 33, at 94 (theories about the nature of investment arbitration “will likely draw on insights from multiple paradigms”). Roberts's view of investment arbitration endorses a model based on a combination of the public international law, third-party beneficiary and public law paradigms. Roberts, supra note 36.
46 Nuclear Tests (Austl. v. Fr.), Judgment, 1974 ICJ Rep. 253 (Dec. 20) [hereinafter Nuclear Tests].
47 Id., para. 43.
48 See, e.g., the Permanent Court of International Justice's (PCIJ) indication that it was “beyond all dispute” that a declaration of Norway's Foreign Minister made to a Danish Minister was binding on Norway: Legal Status of Eastern Greenland (Den. v. Nor.) para. 192, 1933 Series A/B 53, 22 (Apr. 5); James Garner, The International Binding Force of Unilateral Oral Declarations, 27 AJIL 493 (1933). See also South West Africa Cases, Joint Dissenting Opinion of Sir Percy Spender and Sir Gerald Fitzmaurice, 1962 ICJ Rep. 465, 478 (Dec. 21) (“Unilateral declarations may contain undertakings, and can certainly create valid international obligations.”).
49 Christian Eckart, Promises of States Under International Law 125 (2012).
50 Nuclear Tests (Austl. v. Fr.), Dissenting Opinion of Judge de Castro, 1974 ICJ Rep. 372, 375; Nuclear Tests (Austl. v. Fr.) , Dissenting Opinion of Judge Sir Garfield Barwick, 1974 ICJ Rep. 391, 448–49. For criticism, see, e.g., Alfred Rubin, The International Legal Effects of Unilateral Declarations, 71 AJIL 1 (1977), and the discussion in Eckart, supra note 49, at 123–37.
51 See, e.g., Thomas Franck, Word Made Law: The Decision of the ICJ in the Nuclear Test Cases, 69 AJIL 612, 615 (1975) (calling the decision “a most useful step forward in international jurisprudence”).
52 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 132 (June 27) [hereinafter Military and Parmilitary Activities, June 27, 1986]; Armed Activities on the Territory of the Congo, New Application (Dem. Rep. Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, 2006 ICJ Rep. 6, 26–29 (Feb. 3) [hereinafter Armed Activities]; Frontier Dispute (Burk. Faso/Mali), Judgment, 1986 ICJ Rep. 554, 573–74 (Dec. 22) [hereinafter Frontier Dispute].
53 Int'l Law Comm'n, Guiding Principles Applicable to Unilateral Declarations of States, Capable of Creating Legal Obligations (2006) [hereinafter ILC Guiding Principles], available at legal.un.org/docs/?path=../ilc/texts/instruments/english/draft_articles/9_9_2006.pdf.
54 For instance, Egypt's 1957 declaration on the Suez Canal, Jordan's 1988 declaration waiving claims to West Bank territories, or the “Ihlen” declaration of Norway at issue in the Eastern Greenland case. See Eighth Report of the Special Rapporteur, UN Doc. A/CN.4/557.
55 Caron, supra note 9, at 653. Saganek similarly finds it “unquestionable that the word ‘act’ [in the concept of unilateral act] is broad enough to embrace legislative acts.” Przemysław Saganek, Unilateral Acts of States in Public International Law 255 (2016).
56 Saganek, supra note 55, at 70–73. Examples include claims of maritime zones, grants of nationality to a person, plane, or ship, permission of overflight of national territory, and declarations of a commercial embargo, war or neutrality. Pierre-Marie Dupuy, Droit international public 355 (2006).
57 Saganek, supra note 55, at 255.
58 Austria's Federal Constitutional Act of 26 October 1955, declaring the state's permanent neutrality, has been characterized as a legislative unilateral undertaking. Goodman, Camille, Acta Sunt Servanda?: A Regime for Regulating the Unilateral Acts of States at International Law, 25 Aust. Y.B. Int'l L. 43, 50, 58 (2006). Some authors debate this conclusion, denying that such laws could have international effects. See Degan, supra note 16, at 299; Josef Kunz, Austria's Permanent Neutrality, 50 AJIL 418, 421 (1956). The better view is that the neutrality law imposed certain unilaterally assumed obligations on the neutral state, matched by other states undertaking obligations to respect this neutrality in later unilateral or multilateral acts. Eckart, supra note 49, at 107.
59 Fisheries Case (UK v. Nor.), Merits, Judgment, 1951 ICJ Rep. 116, 132 (Dec. 18).
60 Caron, supra note 9, at 653 (emphasis added). See also Degan, supra note 16, at 333–38 on unilateral claims of maritime rights; First Report of the Special Rapporteur, UN Doc. A/CN.4/486, at para. 113 (“[I]t is not inadmissible for a State, through its internal legislation, to grant certain rights to another State or States.”).
61 Dehaussy, Jacques, Les actes juridiques unilatéraux en droit international public: à propos d'une théorie restrictive, 92 J. Droit International 41, 55–56 (1965).
62 Id. at 73.
63 Tidewater Inc. v. Venezuela, ICSID Case No. ARB/10/5, Decision on Jurisdiction, para. 89 (Feb. 8, 2013) [hereinafter Tidewater] (emphasis added). See also First Report of the Special Rapporteur, supra note 60, para. 109 (identifying the relevant distinction between “internal legal acts of States which have international effects” and “internal legal acts which do not produce international effects and which therefore cannot be regarded as unilateral acts of States”).
64 There is no problem in analyzing some parts of a declaration as a binding unilateral act while other parts are not. Eckart, supra note 49, at 223. Many FILs contain provisions imposing obligations on investors. Mongolia's FIL, for instance, provides that investors have an obligation “to conduct environmentally friendly investment activities that respect consumer interests and support human development,” while Kyrgyzstan's FIL requires foreign investors to make social insurance contributions for their employees. See Law on Investment, Art. 7.2.4 (2013), available at investmentpolicyhub.unctad.org/InvestmentLaws/laws/124; Law on Investments, Art. 17(1) (2003), available at investmentpolicyhub.unctad.org/InvestmentLaws/laws/111. Such provisions obviously cannot be considered as unilaterally assumed obligations of the host state.
65 On the second distinction, see Final Report of the Working Group, UN Doc. A/CN.4/L.703, at para. 3; Tidewater, supra note 63, para. 92. The Tidewater tribunal also identified a third category of unilateral acts required to be done “in the formation or the execution of [a] treaty,” which are clearly not unilateral acts relevant to present analysis.
66 Eva Kassoti, The Juridical Nature of Unilateral Acts of States in International Law 51–54, 99 (2015); Eckart, supra note 49, at 74.
67 Tidewater, supra note 63, para. 94.
68 CEMEX, supra note 15, paras. 77–79; Mobil Corp. v. Venezuela, ICSID Case No. ARB/07/27, Decision on Jurisdiction, paras. 83–85 (June 10, 2010) [hereinafter Mobil].
69 Lighthouse Corp. Pty Ltd. v. East Timor, ICSID Case No. ARB/15/2, Award, para. 151 (Dec. 22, 2017) [hereinafter Lighthouse Corp.]. See also Southern Pacific Prop. (Middle East) Ltd. v. Egypt, ICSID Case No. ARB/84/3, Decision on Jurisdiction, para. 61 (Apr. 14, 1988) [hereinafter SPP Jurisdiction]; PNG Sustainable Dev. Prog. Ltd. v. Papua New Guinea, ICSID Case No. ARB/13/33, Award, paras. 258–65 (May 5, 2015) [hereinafter PNG]; OPIC, supra note 27, paras. 75–79; Brandes, supra note 15, para. 36; all adopting the characterization of unilateral act in the framework of a treaty and (apart from the earlier SPP case) citing CEMEX and Mobil.
70 See, e.g., Tidewater, supra note 63, para. 99.
71 Fisheries Jurisdiction (Spain v. Can.), Judgment, 1998 ICJ Rep. 432 (Dec. 4); Anglo-Iranian Oil (UK v. Iran), Judgment, 1952 ICJ Rep. 93 (July 22).
72 Tidewater, supra note 63, para. 99. On non-ICSID tribunals as international tribunals, see Chester Brown, A Common Law of International Adjudication 11 (2007).
73 Pac Rim Cayman LLC v. El Salvador, ICSID Case No. ARB/09/12, Decision on the Respondent's Jurisdictional Objections, paras. 5.32–.34 (June 1, 2012) [hereinafter Pac Rim Jurisdiction]; see El Salvador's 1999 FIL, Art. 15 (prior to amendments in 2013). Arbitration under the ICSID Additional Facility Rules is not governed by the ICSID Convention. Rudolf Dolzer & Christoph Schreuer, Principles of International Investment Law 240 (2012).
74 Some investment treaties contain umbrella clauses, which enable investors to claim violations of any other obligations assumed by the state with respect to investors, such as contractual or legislative obligations (although the clauses’ exact scope is debated). See Dolzer & Schreuer, supra note 73, at 166–78.
75 AES, supra note 11, para. 333; Khan Resources Inc. v. Mongolia, PCA Case No. 2011-09, Award on the Merits, para. 366 (Mar. 2, 2015) [hereinafter Khan]; Liman Caspian Oil B.V. v. Kazakhstan, ICSID Case No. ARB/07/14, Award, para. 448 (June 22, 2010).
76 Petrobart Ltd v. Kyrgyzstan, Award, 50 (UNCITRAL Feb. 13, 2003); Caratube, supra note 11, para. 655; Iurii Bogdanov v. Moldova, Arbitral Award, 4, 12–13 (SCC Sept. 22, 2005) [hereinafter Bogdanov].
77 Zhinvali Development Ltd. v. Georgia, ICSID Case No. ARB/00/1, Award, para. 375 (Jan. 24, 2003); Ruby Roz Agricol LLP v. Kazakhstan, Award on Jurisdiction, para. 147 (UNCITRAL Aug. 1, 2013) [hereinafter Ruby Roz].
78 Metal-Tech Ltd. v. Uzbekistan, ICSID Case No. ARB/10/3, Award, para. 389 (Oct. 4, 2013).
79 Antoine Lahoud v. Democratic Republic of the Congo, ICSID Case No. ARB/10/4, Award, para. 281 (Feb. 7, 2014) [hereinafter Lahoud]; Société Resort Company Invest Abidjan v. Ivory Coast, ICSID Case No. ARB/16/11, Decision on the Respondent's Preliminary Objection to Jurisdiction, para. 157 (Aug. 1, 2017) [hereinafter Société Resort] (“the 2012 Code is a unilateral act on the part of the Côte d'Ivoire”); Venoklim Holding B.V. v. Venezuela, ICSID Case No. ARB/12/22, Award, para. 87 (Apr. 3, 2015) (“in this case the unilateral act (the promulgation of the Investment Law) is allegedly the act by which the Venezuelan state expressed its consent to submit itself to an international jurisdiction”).
80 Caron, supra note 9, at 649.
81 Id. at 673.
82 Potestà, supra note 9, at 150, 160.
83 Mbengue, supra note 9, at 183, 204.
84 Hege Elisabeth Kjos, Applicable Law in Investor-State Arbitration: The Interplay Between National and International Law 176, 188–89 (2013).
85 Final Report of the Working Group, supra note 65, para. 3; ILC Guiding Principles, supra note 53, pmbl.
86 Final Report of the Working Group, supra note 65, para. 3.
87 ILC Guiding Principles, supra note 53, Principles 1, 3, 4, 7; Nuclear Tests, supra note 46, paras. 43–46; Armed Activities, supra note 52, paras. 49–50.
88 Caron, supra note 9, at 669; Mbengue, supra note 9, at 194.
89 See the public databases at UNCTAD, Investment Laws Navigator, supra note 29, and ICSID, Investment Laws of the World, available at icsid.worldbank.org/en/Pages/resources/Investment-Laws-of-the-World.aspx. Reisman and Arsanjani observe that this widespread publication often occurs in relation to inducements for foreign investment. Reisman, Michael & Arsanjani, Mahnoush, The Question of Unilateral Governmental Statements as Applicable Law in Investment Disputes, 19 ICSID Rev. 328, 329 (2004).
90 Eckart, supra note 49, at 242; see also Kassoti, supra note 66, at 33; Eric Suy & Nicolas Angelet, Promise, in Max Planck Encyclopedia of Public International Law, at para. 14 (Rüdiger Wolfrum ed., 2007).
91 Eckart, supra note 49, at 248–50; see also Nuclear Tests, supra note 46, para. 43.
92 Eckart, supra note 49, at 250; see also 205.
93 Rejecting FIL protections before accepting them can be contrasted with waiving breaches after having accepted them, discussed below, which might arise as part of a negotiated deal between an investor and a host state.
94 Frontier Dispute, supra note 52, para. 39.
95 Nuclear Tests, supra note 46, para. 48 (emphasis added). See also Frontier Dispute, supra note 52, para. 39.
96 France did not appear in the case. However, certain views that it expressed elsewhere suggest that it would even have agreed with the applicants that its statements were not intended as unilaterally assumed international obligations. See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument 351 (2006).
97 Eckart, supra note 49, at 209, citing Franck (supra note 51) and Goodman (supra note 58), amongst others.
98 Franck, supra note 51, at 616–17.
99 Obligation to Negotiate Access to the Pacific Ocean (Bol. v. Chile), Memorial of the Government of the Plurinational State of Bolivia, para. 334 (Apr. 17, 2014), (the question is whether “a party in good faith would understand that text as embodying an international legal commitment” when “viewed objectively”). Counter-Memorial of the Republic of Chile, 63 n. 204 (July 13, 2016) (“what is crucial is the intention of the declaring State, objectively assessed”).
100 Tidewater, supra note 63, para. 89.
101 Nuclear Tests, supra note 46, para. 45; ILC Guiding Principles, supra note 53, Principle 5.
102 See supra note 26. The World Bank's International Finance Corporation also maintains a set of “good practice” recommendations for the content of FILs. Bonnitcha, supra note 5, at 1 n. 1.
103 Eckart envisages that a formal national act or “parliamentary involvement” can “be indicative of a state's intention to become legally bound.” Eckart, supra note 49, at 188, 225.
104 Lahoud, supra note 79, para. 281.
105 Military and Paramilitary Activities, June 27, 1986, supra note 52, at 132.
106 Eckart, supra note 49, at 218–19, drawing from British and Egyptian state practice, as well as an analogy with factors used to determine whether a bilateral act constitutes a treaty.
107 Frontier Dispute, supra note 52, at 574, para. 40.
108 By contrast, in Frontier Dispute, the Court saw no hindrance to Burkina Faso and Mali concluding a formal agreement on their border's location, and therefore rejected the argument that Mali was bound by a statement of its president on the topic. Id.
109 UNCTAD, supra note 1, at 111.
110 In an analogous context, the Brandes v. Venezuela tribunal had “no doubt” that Venezuela's FIL was one mechanism used to attract foreign investment given the political difficulties involved at the time in concluding an investment treaty with the United States. Brandes, supra note 15, para. 104.
111 Eckart, supra note 49, at 159; see Frontier Dispute, supra note 52, at 573–74. See also Alain Pellet, Article 38, in The Statute of the International Court of Justice: A Commentary, at para. 96 (Andreas Zimmermann, Karin Oellers-Frahm, Christian Tomuschat & Christian J. Tams eds., 2012).
112 Eckart, supra note 49, at 219 (emphasis added).
113 For discussion of one such FIL, see Société Resort, supra note 79.
114 Mindy Chen-Wishart, Contract Law 52 (2012); UN Convention on Contracts for the International Sale of Goods, Art. 14(2), entered into force January 11, 1988, 1489 UNTS 3.
115 This argument recalls the “deniers” discussed in Kassoti, who deny that obligations can arise from acts of purely unilateral origin, and treat all unilateral acts instead as, one way or another, part of the formation of an agreement. Kassoti, supra note 66, at 81–84.
116 Arguably similar to Albania's declaration at issue in the Minority Schools advisory opinion at the PCIJ. Id. at 107–109; cf. Eckart, supra note 49, 88–93.
117 In an ICSID case where a FIL requiring state approval of investments was in issue, the tribunal appeared to consider that the initial approval process was contractual in nature, but once an investment certificate had been granted, bringing the investor under the protection of the FIL, at least the law's arbitration clause was to be treated as a unilateral act (if not the substantive provisions, on which the tribunal did not comment). See Lighthouse Corp., supra note 69, paras. 151, 333. In a similar ICSID case concerning a FIL requiring prior state approval, the tribunal did not place any significance on the approval requirement, and both the parties, the tribunal majority, and the dissent all treated the arbitration clause as a unilateral act. Société Resort, supra note 79, paras. 60, 79, 157; Société Resort Company Invest Abidjan v. Ivory Coast, ICSID Case No. ARB/16/11, Dissenting Opinion of Kaj Hobér, para. 5 (Aug. 1, 2017). In fact, the respondent state explicitly rejected the application of contractual principles. Société Resort, supra note 79, at para. 73.
118 ABCI Inv. N.V. v. Tunisia, ICSID Case No. ARB/04/12, Décision sur la Compétence, para. 101 (Feb. 18, 2011) [hereinafter ABCI] (author's translation). The dissenter did not squarely address the question. ABCI Inv. N.V. v. Tunisia, ICSID Case No. ARB/04/12, Opinion dissidente du Professeur Brigitte Stern (Feb. 14, 2011) [hereinafter ABCI Dissent].
119 Most treaties do not permit instant unilateral termination. Helfer, Laurence, Terminating Treaties, in The Oxford Guide to Treaties 641 (Hollis, Duncan ed., 2012). Nevertheless, instant termination clauses are not unknown. Article XV(1) of the Articles of Agreement of the International Monetary Fund permits withdrawal upon notice with immediate effect.
120 See Lahoud, supra note 79, para. 281.
121 Nuclear Tests, supra note 46, para. 44; see also ILC Guiding Principles, supra note 53, Principle 7.
122 Caron, supra note 9, at 671.
123 Eckart, supra note 49, at 213.
124 Id. at 41; Franck, supra note 51, at 615 (unilateral acts can be made to “unspecified but ascertainable beneficiaries”).
125 In the Nuclear Tests case, the ICJ commented that “interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.” Nuclear Tests, supra note 46, para. 46.
126 ILC Guiding Principles, supra note 53, Principle 6.
127 Id., Commentary to Guiding Principle 6, at para. 2.
128 Id. (citing state practice from Switzerland and Jordan).
129 LaGrand (Ger. v. U.S.), Judgment, 2001 ICJ Rep. 466, para. 77 (Jun. 27); Avena (Mex. v. U.S.), Judgment, 2004 ICJ Rep. 12, para. 40 (Mar. 31); Kate Parlett, The Individual in the International Legal System 3 (2011).
130 See, e.g., Zachary Douglas, The International Law of Investment Claims, at ch. 1 (2009); Anastasios Gourgourinis, Investors’ Rights Qua Human Rights? Revisiting the “Direct”/“Derivative” Rights Debate, in The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications 147 (Malgosia Fitzmaurice & Panos Merkouris eds., 2012); Anthea Roberts, Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States, 104 AJIL 179, 184–85 (2010).
131 Paparinskis, for instance, has suggested that the protection of investors’ legitimate expectations by BIT tribunals might be explained by reference to unilateral acts. Martins Paparinskis, The International Minimum Standard and Fair and Equitable Treatment 252 (2013).
132 Potestà characterizes FILs as “assurances given by host states … to every possible foreign investor.” Potestà, supra note 9, at 150; see also 162. While not discussing FILs, Reisman and Arsanjani suggest that unilateral acts in general can be addressed to investors. Reisman & Arsanjani, supra note 89, at 339, 341. See also Eckart, supra note 49, at 308; Mbengue, supra note 9, at 187, 196, 205; Caron, supra note 9, at 653 (suggesting that FIL obligations are owed to “the international community and foreign nationals simultaneously”); Andreeva, supra note 9, at 138; Tidewater, supra note 63, para. 94.
133 Eckart, supra note 49, at 8; Caron, supra note 9, at 653.
134 The ICJ characterized the French declarations as being made erga omnes, to the international community as a whole. Nuclear Tests, supra note 46, para. 50.
135 See, e.g., Law of the Republic of Tajikistan on Investments, Art. 7.2 (2007), available at investmentpolicyhub.unctad.org/InvestmentLaws/laws/62; Burundi Investment Code, Art. 11 (2008), available at investmentpolicyhub.unctad.org/InvestmentLaws/laws/41.
136 See, e.g., Madagascar Investment Law, Art. 21 (2008), available at investmentpolicyhub.unctad.org/InvestmentLaws/laws/120; Foreign Investment Law of Somalia, Art. 19 (1987), available at investmentpolicyhub.unctad.org/InvestmentLaws/laws/65.
137 Paparinskis, Martins, Investment Treaty Arbitration and the (New) Law of State Responsibility, 24 Eur. J. Int'l L. 617, 622–27 (2013); Roberts, supra note 130, at 184–85; Douglas, supra note 130; Braun, Tillmann, Globalization-Driven Innovation: The Investor as a Partial Subject in Public International Law, 15 J. World. Inv. & Trade 73, 83–89 (2014).
138 The different paradigms discussed in Part II may affect the appropriate characterization. For instance, the trade law paradigm would emphasise the interstate nature of WTO rights and construe investors’ rights as derivative of home state rights, while a human rights paradigm would tend toward the direct rights view. Paparinskis, supra note 137, at 623, 627; Roberts, supra note 33, at 71, 73. Roberts notes that neither paradigm would support the “intermediate” view. Id. at 71.
139 Rep. of the Int'l Law Comm'n on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 33, UN Doc. A/56/10 (2001) [hereinafter Articles on State Responsibility and ILC Commentary] (the law of state responsibility applies to “any violation by a State of any obligation, of whatever origin” (citing the Rainbow Warrior case)). The circumstances precluding wrongfulness similarly apply to breach of any obligation “arising under a rule of general international law, a treaty, a unilateral act or from any other source.” Id. at 71. A breach of a unilateral act entailing state responsibility was currently alleged by Bolivia against Chile before the ICJ. See Memorial of Bolivia, supra note 99.
140 Paparinskis, supra note 137.
141 Id. at 627; see also Crawford, James, Treaty and Contract in Investment Arbitration, 24 Arb. Int'l 351, 355–56 (2008).
142 Paparinskis, supra note 137, at 629–30; see Articles on State Responsibility and ILC Commentary, supra note 139, at 74 (“The rights conferred by international human rights treaties cannot be waived by their beneficiaries, but the individual's free consent may be relevant to their application.”).
143 Paparinskis, supra note 137, at 630–31.
144 Articles on State Responsibility and ILC Commentary, supra note 139, Art. 22. Articles 49–54 impose further conditions on the exercise of countermeasures; for instance, the countermeasure taken by the respondent must be proportional to the claimant's prior breach.
145 Id. at 130, para. 5.
146 Id., para. 4.
147 Roberts, supra note 36, at 399.
148 Id. at 400.
149 Joanna Gomula, Responsibility and the World Trade Organization, in The Law of International Responsibility 791, 798–801 (James Crawford, Alain Pellet & Simon Olleson eds., 2010).
150 Paparinskis, Martins, Investment Arbitration and the Law of Countermeasures, 79 Brit. Y.B. Int'l L. 264, 346 (2008).
151 See Vadi, Valentina, Cogens, Jus in International Investment Law and Arbitration, 46 Neth. Y.B. Int'l L. 357, 361 (2015); Paparinskis, supra note 150, at 318–19.
152 Paparinskis, supra note 150, at 319–25.
153 Roberts, supra note 33, at 71; Pieter van Dijk, Fried van Hoof, Arjen van Rijn & Leo Zwaak, Theory and Practice of the European Convention on Human Rights 893, 1068 (4th ed. 2006); Paparinskis, supra note 150, at 325–30.
154 Simma, Bruno, From Bilateralism to Community Interest in International Law, 250 Recueil des Cours 217, 364–76 (1994); Brilmayer, Lea, From Contract to Pledge: The Structure of International Human Rights Agreements, 77 Brit. Y.B. Int'l L. 163 (2006); Paparinskis, supra note 150, at 330–31.
155 Paparinskis, supra note 137, at 632. Some cases have also taken this position. See Corn Products Int'l, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/04/01, Decision on Responsibility, paras. 153–92 (Jan. 15, 2008); Cargill, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/05/2, Award, paras. 420–30 (Sept. 18, 2009).
156 For the same reasons, a self-defense claim would similarly be ruled out. Paparinskis, supra note 150, at 342.
157 Roberts, supra note 36, at 400. For a similar dependent rights view, see Losari, Junianto James & Ewing-Chow, Michael, A Clash of Treaties: The Lawfulness of Countermeasures in International Trade Law and International Investment Law, 16 J. World Inv. & Trade 274 (2015).
158 Roberts, supra note 36, at 401.
160 At least where the necessary prior breach by the home state has already been admitted, or ruled on by a separate tribunal given investment treaty tribunals’ lack of jurisdiction to assess this. Id. at 402.
161 Paparinskis labels it a “creatively rethought” version of the law of countermeasures. Paparinskis, Martins, Circumstances Precluding Wrongfulness in International Investment Law, 31 ICSID Rev. 484, 497 (2016).
162 Paparinskis, supra note 150, at 342–43.
163 See, e.g., Kurtz, Jürgen, Adjudging the Exceptional at International Investment Law: Security, Public Order and Financial Crisis, 59 Int'l & Comp. L. Q. 325 (2010); Sloane, Robert, On the Use and Abuse of Necessity in the Law of State Responsibility, 106 AJIL 447, 497–502 (2012).
164 Articles on State Responsibility, supra note 139, Art. 25(1)(b) (states may not invoke necessity unless their act “does not seriously impair an essential interest of the State or States toward which the obligation exists”); see also Paparinskis, supra note 137, at 635.
165 Articles on State Responsibility, supra note 139, Art. 33(2). See also Ivar Alvik, Contracting with Sovereignty: State Contracts and International Arbitration 222–23 (2011); cf. Zachary Douglas, Other Specific Regimes of Responsibility: Investment Treaty Arbitration and ICSID, in Crawford, Pellet & Olleson, supra note 149, at 820.
166 Paparinskis, supra note 137, at 636.
167 Olivier Corten, The Obligation of Cessation, in Crawford, Pellet & Olleson, supra note 149, at 545–46; Paparinskis, supra note 137, at 637.
168 Int'l Law Comm'n, Draft Articles on the Responsibility of International Organizations, with Commentaries, at 79, UN Doc. A/66/10 (finding “no reason that would suggest a different approach”). See also Paparinskis, supra note 137, at 638.
169 The ILC relied on individual-state as well as interstate cases in developing the Articles. See Sergey Ripinsky & Kevin Williams, Damages in International Investment Law 28–32 (2008); Paparinskis, supra note 137, at 637–38.
170 Paparinskis, supra note 137, at 638, 646. See James Crawford, Third Report on State Responsibility, at para. 143, UN Doc. A/CN.4/507/Add.1.
171 See, e.g., NAFTA Article 1135(1), which permits tribunals to order restitution, but also permits states to elect to pay compensation instead of the restitution ordered.
172 Particularly since Article 39 already envisages an assessment of the conduct of “any person or entity in relation to whom reparation is sought.”
173 Paparinskis, supra note 137, at 640–41; cf. Douglas, Zachary, The Hybrid Foundations of Investment Treaty Arbitration, 74 Brit. Y.B. Int'l L. 151, 190–91 (2003).
174 The home state may of course face various obstacles, including fulfilling customary rules on exhaustion of local remedies, or meeting a different definition of investment under the investment treaty compared to the FIL.
175 FILs could, of course, grant such rights to states, and the argument here would then be different. However, based on a review of UNCTAD’s database (supra note 29), no FIL currently in existence does so.
176 For a similar debate in relation to treaty claims, see Paparinskis, supra note 137, at 643.
177 Id. at 645; Paparinskis, supra note 161, at 489. Roberts's’ “triangular” analysis (supra note 36, at 396) might entail a different view under investment treaties—the third-party beneficiary paradigm suggests that investor rights are conditional on home state conduct, including waiver. However, as explained in relation to countermeasures above, the third-party beneficiary paradigm cannot affect this issue in the FIL context.
178 Paparinskis, supra note 137, at 644.
179 Subject to the discussion below on revoking FILs.
180 ILC Articles on State Responsibility, Article 45 provides that “[t]he responsibility of a State may not be invoked if … the injured State has validly waived the claim.”
181 Vienna Convention on the Law of Treaties, Art. 54, opened for signature May 23, 1969, 1155 UNTS 331 [hereinafter VCLT] (entered into force Jan. 27, 1980).
182 States including India, South Africa, and Ecuador have terminated many of their investment treaties. See, e.g., Calvert, Julia, Constructing Investor Rights? Why Some States (Fail To) Terminate Bilateral Investment Treaties, 25 Rev. Int'l Pol. Econ. 75, 75 (2018). Many EU member states have also begun terminating intra-EU investment treaties in recent years, in light of concerns expressed over these instruments by the European Commission. See, e.g., Joel Dahlquist & Luke Peterson, INVESTIGATION: Denmark Proposes Mutual Termination of Its Nine BITs with Fellow EU Member-States, Against Spectre of Infringement Cases, Inv. Arb. Rep. (May 2, 2016), at www.iareporter.com/articles/investigation-denmark-proposes-mutual-termination-of-its-nine-bits-with-fellow-eu-member-states-against-spectre-of-infringement-cases.
183 Eckart, supra note 49, at 251.
184 VCLT Article 56(1) provides that treaties that are silent on termination may nevertheless be unilaterally terminated if it is established that parties intended a possibility of termination, or if a right of termination may be implied by the nature of the treaty.
185 Eckart, supra note 49, at 253.
186 AES, supra note 11, para. 218.
187 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, Judgment, 1984 ICJ Rep. 392, para. 55 (Nov. 26) [hereinafter Military and Paramilitary Activities, Nov. 26, 1984]. The U.S. declaration in fact contained a six-month notice period, but the United States argued that reciprocity permitted it to ignore that period, since Nicaragua's own declaration allowed immediate termination.
188 Id., para. 63 (emphasis added).
189 Id. Compare this to VCLT Article 56(2), which provides that parties must give twelve months’ notice to terminate a treaty which contains no provisions on termination.
191 Land and Maritime Boundary (Cameroon v. Nigeria), Preliminary Objections, Judgment, 1998 ICJ Rep. 275, para. 25 (June 11) [hereinafter Land and Maritime Boundary].
192 Robert Kolb, The International Court of Justice 455 (2013).
193 Military and Paramilitary Activities, Nov. 26, 1984, supra note 187, para. 60.
194 Land and Maritime Boundary, supra note 191, para. 25.
195 The analogy might be more apt where a state is the very first to adopt an Optional Clause declaration: at that time, there is no other state in the “reciprocal and mutual network,” and revocation of the declaration would have no effect on other states. It appears to be unclear which, if any one, state was in fact the first to issue such a declaration. See Fourth Annual Report of the Permanent Court of International Justice, Series E No. 4, 416 (1927–28).
196 Kolb, supra note 192, at 455–56; cf. PNG, supra note 69, para. 265, which referred to the “hybrid” nature of FIL consent clauses in discussing appropriate interpretive principles.
197 Military and Paramilitary Activities, Nov. 26, 1984, supra note 187, paras. 59–60.
198 Nuclear Tests, supra note 46, at para. 51.
199 Military and Paramilitary Activities, Nov. 26, 1984, supra note 187, para. 51; Fisheries Jurisdiction (Ger. v. Ice.), Jurisdiction, Judgment, 1973 ICJ Rep. 49, at para. 36 (Feb. 2); Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 ICJ Rep. 7, para. 104 (Sept. 25).
200 Jurisdiction over one claimant was rejected for this reason in Caratube, supra note 11, para. 695.
201 In the investment treaty context, see Voon, Tania, Mitchell, Andrew & Munro, James, Parting Ways: The Impact of Mutual Termination of Investment Treaties on Investor Rights, 29 ICSID Rev. 451, 463–65 (2014).
202 See also Military and Paramilitary Activities, Nov. 26, 1984, supra note 187, para. 54; Nottebohm (Liech. v. Guat.), Judgment, 1953 ICJ Rep. 111, 122 (Nov. 18) (“Once the Court has been regularly seised, the Court must exercise its powers.”).
203 See, e.g., Alvik, supra note 165, at 99–102.
204 Roberts proposes the more radical view that investment treaty tribunals must relinquish jurisdiction over a pending case if the home and host states jointly terminate the treaty (acting as a unitary lawmaking sovereign). This is grounded on the public law position that states can revoke rights in the public interest, even if compensation must be paid. Roberts, supra note 36, at 411–14. Applied to FIL disputes, this would suggest that the state (as legislator, rather than as disputing party) could similarly terminate pending claims by repealing the statute. This may be true in a domestic context, but it takes the public law paradigm too far in the international context, and—particularly in the two-party FIL setting—downplays the disputing parties’ consent to international jurisdiction.
205 The FILs of Armenia (Article 7), Azerbaijan (Article 10), Kyrgyzstan (Article 2(2)), Mauritania (Article 5), Tajikistan (Article 5(2)), and Turkmenistan (Article 19(1)) are examples. UNCTAD, supra note 89.
206 Cf. Potestà, supra note 9, at 154, who (without further elaboration) considers it only “arguable” that, where a FIL contains a stabilisation clause, the state's consent to arbitration cannot be instantly revoked via repeal of the FIL. ABCI, supra note 118, paras. 126–28 might also suggest that stabilisation clauses are ineffective in the absence of an “acquired right” (i.e., in this context, perfected consent to arbitration)—although the discussion on that point in ABCI was technically dictum, since the majority held that there was an acquired right to arbitration prior to the FIL's repeal.
207 Rumeli Telekom A.S. v. Kazakhstan, ICSID Case No. ARB/05/16, Award, paras. 333–34 (July 29, 2008) [hereinafter Rumeli]. The tribunal did not discuss the legal characterization of the FIL as a unilateral act or otherwise.
208 AES, supra note 11, para. 222.
209 Id., para. 221.
210 See, for example, the FILs of Bosnia (Article 20), Côte d'Ivoire (Article 10), Democratic Republic of Congo (Article 40), Guinea (Article 14), and Togo (Article 54). UNCTAD, supra note 89.
211 No known sunset clause purports to maintain BIT protections indefinitely. The longest such clause extends twenty-five years after the treaty's termination. Kathryn Gordon & Joachim Pohl, Investment Treaties Over Time: Treaty Practice and Interpretation in a Changing World, at 19 (OECD Working Papers on International Investment 2015/02, 2015).
212 As Eckart observes, permitting revocation in this situation is hardly arbitrary, making Principle 10(c) of little added value. Eckart, supra note 49, at 259.
213 UNCTAD, supra note 2, at 5 indicates that only twenty-seven of the laws in UNCTAD’s sample have stabilisation clauses, suggesting that most FILs do not contain such clauses. UNCTAD’s online database in fact counts only nineteen FILs with stabilisation clauses. UNCTAD, supra note 89. Dumberry, Patrick, The Practice of States as Evidence of Custom: An Analysis of Fair and Equitable Treatment Standard Clauses in States’ Foreign Investment Laws, 2 McGill J. Disp. Res. 67, 76 (2015–16) counts only sixteen.
214 Eckart, supra note 49, at 276.
215 Id. at 290, 297.
216 See Roberts, supra note 36, at 375 (discussing “joint sovereigns”). The “second-party beneficiary” view recalls Special Rapporteur Fitzmaurice's proposal for a VCLT rule on unilateral declarations benefiting another state, alongside the rule on treaty provisions benefiting a third state. See Int'l Law Comm'n, Fifth Report on the Law of Treaties, Draft Art. 22, UN Doc. CN.4/130,  2 Y.B. Int'l L. Comm. 69, 81. The draft rule was later removed as not strictly relating to treaties.
217 Where addressees have reasonably and detrimentally relied on a unilateral promise, it may become “de facto irrevocable.” Eckart, supra note 49, at 267.
218 Cf. James Crawford, Brownlie's Principles of Public International Law 421–22 (2012) (distinguishing unilateral acts from acts giving rise to estoppel).
219 Rumeli, supra note 207, para. 335.
220 In ABCI, supra note 118, para. 128, Tunisia contended that the Rumeli tribunal's reasoning on accrued rights was only obiter, because the stabilisation clause answered the point already.
221 AES, supra note 11, at para. 215.
222 Id. at para. 216. The tribunal also cited another factor pointing against instant termination: a lack of “evidence beyond the general repeal of the 1994 FIL that Respondent had any intention of cancelling its ‘standing consent’ to arbitration.” Id., para. 220. However, this reasoning is doubtful. A deliberate, considered, parliamentary decision to repeal a law granting consent to arbitration is surely persuasive evidence that a state no longer consents to arbitration. In AES, further evidence actually existed, since Kazakhstan replaced the repealed FIL with a new law that contained no advance consent to arbitration. See Article 9(2) of the 2003 FIL, available at www.wto.org/english/thewto_e/acc_e/kaz_e/WTACCKAZ42_LEG_1.pdf.
223 AES, supra note 11, para. 219.
224 Id., para. 208.
225 Id., para. 220 (emphasis added).
226 Cf. Lucy Reed, Jan Paulsson & Nigel Blackaby, Guide to ICSID Arbitration 54 (2011) (suggesting that estoppel may prevent a state from revoking an offer of consent).
227 Roberts, supra note 130, at 214; Paparinskis, supra note 131, at 253; Jarrod Hepburn, Domestic Law in International Investment Arbitration 157–58 (2017); cf. Andrea Steingruber, Consent in International Arbitration 221 (2012). Eckart consolidates other authors’ views into the position that estoppel applies to conduct of states in relation to “another subject of international law,” thus likely including investors. Eckart, supra note 49, at 281.
228 Eckart, supra note 49, at 290.
229 Id. at 289; Roberts, supra note 130, at 210; Roberts, supra note 36, at 409–10.
230 Cf. Eckart, supra note 49, at 283.
231 Many FILs also protect investments in existence before the statute entered into force.
232 Gertz, Geoffrey, Jandhyala, Srividya & Poulsen, Lauge, Legalization, Diplomacy, and Development: Do Investment Treaties De-politicize Investment Disputes?, 107 World Dev. 239, 239 (2018).
233 Eckart, supra note 49, at 253 notes that some authors appear to support this view but nevertheless allow for exceptions, drawing analogies with the rules for treaties.
234 ILC Guiding Principles, supra note 53, Commentary to Guiding Principle 10, para. 2.
235 It might be curious to think that different parts of a FIL would be characterized differently upon repeal. But it would be possible to find that the consent clause has been validly revoked even if the substantive protections remain in force; in this situation, an investor may be able to rely on them before a tribunal constituted under some other basis, such as an investment treaty with a wide jurisdictional clause. (For instance, the claimant in Bogdanov v. Moldova alleged violations of a FIL even though the tribunal's jurisdiction was based on a treaty. Bogdanov, supra note 76, at 6, 12–13.) Conversely, the consent clause may remain in force while the substantive protections are validly revoked; in this situation, the claim would proceed but necessarily fail on the merits.
236 Roberts, supra note 33, at 45.
237 Parra, Antonio, Provisions on the Settlement of Investment Disputes in Modern Investment Laws, Bilateral Investment Treaties and Multilateral Instruments on Investment, 12 ICSID Rev. 287, 319–20 (1997).
238 Id. at 319.
239 Id. at 341. UNCTAD’s database (supra note 89) records seventy-four out of 2,573 investment treaties that do not contain a sunset clause. Similarly, an OECD review indicated that only 3% of investment treaties do not have sunset clauses (although most investment chapters of trade agreements fall into this category). Gordon and Pohl, supra note 211, at 19.
240 Dissenting in Nicaragua, Judge Schwebel came to the same result in relation to the Optional Clause, though not by adopting a contractual position. Schwebel rejected the ICJ majority's analogy with treaties, commenting that unilateral declarations were not negotiated instruments like treaties, were not governed by rules on treaty interpretation, and had a substantially different nature to treaties, making Optional Clause declarations “inherently terminable.” Military and Paramilitary Activities, Nov. 26, 1984, Dissenting Opinion of Judge Schwebel, supra note 187, para. 101. However, Schwebel did not elaborate on how the nature of unilateral declarations differed substantially from treaties.
241 Schreuer, Christoph, Consent to Arbitration, in The Oxford Handbook of International Investment Law 834 (Muchlinski, Peter, Ortino, Federico & Schreuer, Christoph eds., 2008); Christoph Schreuer, Loretta Malintoppi, August Reinisch & Anthony Sinclair, The ICSID Convention: A Commentary 618 (2012). See also Potestà, supra note 9, at 153 (maintaining that consent in FILs is “much more precarious” than in treaties). As noted above (supra note 206), Potestà appears to accept that FILs might be instantly terminable even where they contain stabilization clauses. The conclusion is somewhat curious given Potestà’s acceptance that sunset clauses in BITs are effective to prevent instant termination of those instruments. Id. at 154.
242 Santiago Montt, State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative Law in the BIT Generation 7 (2009).
243 Roberts, supra note 33, at 66.
244 Roberts, supra note 36, at 411.
245 See the discussion in Part II.
246 Cf. Roberts, supra note 33, at 62.
247 Although a claim under a parallel treaty could be affected by the characterization of the FIL, the reverse is not true: characterization of a FIL is not affected by the mere existence of (or claim under) a parallel treaty. The two instruments provide independent causes of action (such that a FIL claim could proceed even if the treaty is terminated), and the FIL will be characterized on its own terms.
248 See supra note 74.
249 See, e.g., Illinois Central Railroad Co. v. Mexico (U.S.–Mexican General Claims Commission Mar. 31, 1926).
250 See, e.g., Maritime International Nominees Establishment v. Guinea, ICSID Case No. ARB/84/4, Award (Jan. 6, 1988); Adriano Gardella S.p.A v. Ivory Coast, ICSID Case No. ARB/74/1, Award (Aug. 29, 1977); Kaiser Bauxite Co. v. Jamaica, ICSID Case No. ARB/74/3, Decision on Jurisdiction (July 6, 1975). The Iran-U.S. Claims Tribunal also decides contractual claims. See, e.g., Kjos, supra note 84, at 47.
251 Based on the author's own figures, fifteen claims were settled, discontinued, or withdrawn before an award was issued. Jurisdiction or admissibility under a FIL was either not considered (due to a finding of jurisdiction on some other basis) or declined (often due to a finding that the relevant FIL did not contain the state's consent to arbitration) in twenty-four cases. Ten cases remain pending. Of the twelve concluded cases that discuss merits issues, three took the view that no separate discussion of FIL breaches was necessary since breach of another instrument provided a concurrent basis of jurisdiction (e.g., a BIT), or since no FIL breaches were alleged. A further four found no breach of the FIL on the merits, leaving limited scope for discussion of state responsibility, while in one case the merits ruling remains unpublished.
252 No FIL containing dispute settlement provisions in the UNCTAD database (supra note 29) includes an applicable law clause. Around 32% of BITs, meanwhile, contain applicable law clauses. Joachim Pohl, Kekeletso Mashigo & Alexis Nohen, Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey, at 29 (OECD Working Papers on International Investment 2012/02, 2012).
253 ICSID Convention, Art. 42(1). See also Pac Rim Cayman LLC v. El Salvador, ICSID Case No. ARB/09/12, Award, para. 5.61 (Oct. 14, 2016) [hereinafter Pac Rim Merits]. The fact that Article 42(1) lists domestic law before international law does not imply that instruments underpinning claims at ICSID are more likely to be domestic law instruments. Even if this was envisaged by the Convention drafters before investment treaties were commonplace, treaty claims now predominate at ICSID. Rather than the applicable law changing the nature of the instrument under jurisdiction, the reverse is in fact more defensible. Lorand Bartels, Jurisdiction and Applicable Law Clauses: Where Does a Tribunal Find the Principal Norms Applicable to the Case Before it?, in Multi-Sourced Equivalent Norms in International Law 123–24 (Tomer Broude & Yuval Shany eds., 2011). Characterization of FILs as domestic or international law will therefore be more affected by the factors discussed in Part III than the ICSID Convention's applicable law clause.
254 UNCITRAL Arbitration Rules, Art. 35(1).
255 See, e.g., Churchill Mining PLC v. Indonesia, ICSID Case No. ARB/12/14, Award, para. 235 (Dec. 6, 2016).
256 Hepburn, supra note 227, at 106; Monique Sasson, Substantive Law in Investment Treaty Arbitration: The Unsettled Relationship Between International Law and Municipal Law 3 (2017).
257 Payment in Gold of Brazilian Federal Loans Contracted in France (Fr. v. Braz.), Series A No. 21, at 124 (Perm. Ct. Int'l Just. 1929) [hereinafter Brazilian Loans]; Elettronica Sicula S.p.A. (ELSI) (U.S. v. It.) Judgment, 1989 ICJ Rep. 15, 47 (July 20); Hepburn, supra note 227, at 108–11.
258 In the human rights context, “[i]t is generally accepted that domestic law should be interpreted as far as possible in a way which conforms to a state's international legal obligations.” UN Committee on Economic, Social and Cultural Rights, at para. 15, General Comment No. 9, UN Doc. A/CONF.39/27.
259 In Petrobart v. Kyrgyzstan, the tribunal (apparently viewing the substantive FIL provisions as domestic law) sought the Kyrgyz legislator's intention in the FIL text itself. Petrobart, supra note 76, at 49–50.
260 McLachlan, Shore & Weiniger, supra note 20, at 46. In this respect, FILs might be an example of the “consubstantial norms” discussed in Tzanakopoulos, Antonios, Domestic Courts in International Law: The International Judicial Function of National Courts, 34 Loy. LA Int'l & Comp. L. Rev. 133 (2011). However, reliance on the manner in which a domestic court would interpret norms of international law might not necessarily produce the same result as if an international tribunal interpreted the international norms itself. See Olga Frishman & Eyal Benvenisti, National Courts and Interpretive Approaches to International Law, in The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence 317 (Helmut Philipp Aust & Georg Nolte eds., 2016).
261 Southern Pacific Properties (Middle East) Ltd. v. Egypt, ICSID Case No. ARB/84/3, Award on the Merits, paras. 160–68 (May 20, 1992) [hereinafter SPP Merits]; Tradex Hellas S.A. v. Albania, ICSID Case No. ARB/94/2, Award, paras. 69, 135, 200 (Apr. 29, 1999) [hereinafter Tradex]. Note that it was not entirely clear in these cases whether the tribunal treated the substantive FIL protections as rules of domestic or international law.
262 Tradex, supra note 261, para. 106.
263 Lahoud, supra note 79, paras. 356–65.
264 Mitchell, Andrew & Munro, James, Someone Else's Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements, 28 Eur. J. Int'l L. 669 (2017); Paparinskis, Martins, Sources of Law and Arbitral Interpretation of Pari Materia Investment Protection Rules, in The Practice of International and National Courts and the (De-)Fragmentation of International Law 87 (Fauchald, Ole Kristian & Nollkaemper, André eds., 2012).
265 Paparinskis has contended that, just as treaty references to “expropriation” are routinely interpreted to make reference to the customary law notion of expropriation, treaty references to “fair and equitable treatment” should similarly refer to the customary law minimum standard of treatment. Paparinskis, supra note 131, ch. 6.
266 Author's translation. Perhaps in reference to the debate over whether investment treaties have contributed to custom in this area, the Lahoud tribunal noted that the concept of fair and equitable treatment, as referred to in the DRC FIL, “draws its origin from international law and has been developed there to the point of figuring almost systematically in the many bilateral and multilateral agreements for promotion and protection of investments in force today.” Lahoud, supra note 79, para. 361.
267 Steven Ratner, Regulatory Takings in Institutional Context: Beyond the Fear of Fragmented International Law, 102 AJIL 475 (2008).
268 Under Article 25 of the ICSID Convention, claimants at ICSID cannot hold the nationality of the respondent state, except in certain circumstances.
269 See, e.g., the DRC FIL, Art. 38, which is not explicitly limited to foreign investors.
270 James v. United Kingdom, 98 Eur. Ct. H.R. (ser. A), para. 66 (1986). Article 1, Protocol 1 of the Convention provides in part that “[n]o one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
271 Since James v. UK, the European Court has ignored the reference to international law even for non-national claimants, instead applying the arguably lower Convention-specific standard to them as well. See, e.g., East/West Alliance Ltd v. Ukraine, App. No 19336/04, Judgment (Eur. Ct. H.R. Jan. 23, 2014).
272 This was argued by Egypt in SPP, although ultimately rejected by the tribunal, which drew on the international law understanding of expropriation as covering contract rights. SPP Merits, supra note 261, paras. 160, 164.
273 Articles on State Responsibility, supra note 139, Art. 3.
274 A German court has held that the international law defense of necessity does not apply to a private law contractual relationship between individuals and a state. Federal Constitutional Court, Argentine Bondholder case, Order of the Second Senate, 2 BvM 1-5/03, 1-2/06 (May 8, 2007). See André Nollkaemper, National Courts and the International Rule of Law 185 (2011); see also Alvik, supra note 165, at 76. However, in Brazilian Loans (supra note 257, at 120), the PCIJ entertained (but rejected) a plea of force majeure even though only a domestic law obligation was at stake. The ILC Commentary (supra note 139, at 77) nevertheless appears to treat the case as an instance of consideration of force majeure as a circumstance precluding wrongfulness in international law, not merely domestic law.
275 The “essential security” clause, and its relationship to thecustomary necessity defence, has featured in the numerous well-known claimsagainst Argentina cases. See, e.g., Kurtz, supra note 163.
276 For instance, the interstate remedial rules in the ILC Articles are frequently applied in investor-state treaty claims. See text accompanying note 165 supra.
277 Khan, supra note 75, para. 368.
278 The SPP tribunal's Merits Award appeared to view the substantive FIL clauses as domestic law, despite drawing on a unilateral act analysis in the jurisdictional decision in relation to the arbitration clause. SPP Jurisdiction, supra note 69, para. 61. The Merits Award's dispositif does not actually indicate which legal obligations were found breached by Egypt, but other indications in the award suggest that the ultimate finding was of an expropriation in breach of the FIL. SPP Merits, supra note 261, paras. 163, 172, 183.
279 SPP Merits, supra note 261, paras. 222, 224. The tribunal returned to international law to fix the dies a quo and dies ad quem, reasoning that domestic law was silent on these issues. Id., paras. 233–35; cf. Beharry, Christina, Prejudgment Interest Rates in International Investment Arbitration, 8 J. Int'l Disp. Settlement 56, 59 (2017), who asserts that domestic rules on interest could be relevant in a FIL claim.
280 Lahoud, supra note 79, para. 632.
281 Id., para. 564.
282 Irmgard Marboe, State Responsibility and Comparative State Liability for Administrative and Legislative Harm to Economic Interests, in Schill, supra note 44, at 378.
283 See, e.g., Autopista Concesionada de Venezuela, C.A. v. Venezuela, ICSID Case No. ARB/00/5, Award, para. 126 (Sept. 23, 2003).
284 Lahoud, supra note 79, para. 375. The tribunal's view of the substantive FIL protections was unclear.
285 SPP Merits, supra note 261, paras. 82–85; Tradex, supra note 261, para. 104.
286 As Vidmar notes, the fact that the law of state responsibility relates to secondary rules of international law does not mean that these rules are only relevant after a breach of a primary rule is found. Vidmar, Jure, Some Observations on Wrongfulness, Responsibility and Defences in International Law, 63 Neth. Int'l L. Rev. 335 (2016).
287 International law rules may, of course, direct the tribunal back to domestic law. ILC Commentary, supra note 139, at 42.
288 André Nollkaemper, Internationally Wrongful Acts in Domestic Courts, 101 AJIL 760, 783–84 (2007); see also Nollkaemper, supra note 274, at 186; Tzanakopoulos, supra note 260, at 143.
289 André Nollkaemper, The Power of Secondary Rules to Connect the International and National Legal Orders, in Broude and Shany, supra note 253.
290 Nollkaemper, supra note 274, at 167.
291 Id. at 219; see also 225.
292 Id. at 220.
293 Id. at 228; Tzanakopoulos, supra note 260, at 149–54.
294 Wittich, Stephan, Domestic Courts and the Content and Implementation of State Responsibility, 26 Leiden J. Int'l L. 643, 665 (2013).
295 Nollkaemper, supra note 274, at 187–89. For instance, domestic courts may be restricted to issuing declarations of incompatibility or unconstitutionality, while international courts may be authorized to award monetary remedies. Similarly, state liability under national law typically aims to balance public and private interests, while state responsibility under international law typically aims to grant “full reparation” to the injured claimant. See, e.g., Anne van Aaken, Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View, in Schill, supra note 44, at 721; Marboe, supra note 282. Although state responsibility is sometimes roughly analogized to domestic tort law, “[r]eparation for the violation of an international obligation … may take forms that do not exist in national tort law.” Sloane, supra note 163, at 479.
296 Nollkaemper, supra note 288, at 59.
297 The Ruby Roz tribunal (which arguably viewed FILs as domestic law) held a stabilization clause to be effective. Ruby Roz, supra note 77, para. 168. However, the claim there had been filed after the stabilization period had ended, meaning that jurisdiction was declined.
298 The dissenter in ABCI probably took this approach, ABCI Dissent, supra note 118, para. 45. The views of Parra, supra note 237, at 319–20 and Schreuer, supra note 241, at 834, are equally applicable here.
299 Cf. Nollkaemper, supra note 274, at 231 (“Where the domesticated international norm is embedded in a domestic statute, in many respects its status and effects will be governed by domestic law”); Sasson, supra note 256, at 10 (“[t]he municipal law of the host State determines whether a [contractual or proprietary] right exists …”); Tidewater, supra note 63, para. 102 (asserting in relation to arbitral to consent clauses, that “[m]unicipal law is relevant to determine the existence and validity of the instrument at issue”).
300 See, e.g., John Simpson & Hazel Fox, International Arbitration 124 (1959).
301 Wena Hotels Limited v. Egypt, ICSID Case No. ARB/98/4, Award (Dec. 8, 2000) [hereinafter Wena]; Jarrod Hepburn, Looking Back: In First Treaty Claim Under SCC Rules, Arbitrators in the Long-Opaque Biedermann Case Held Kazakhstan Liable for Breaching US-Kazak BIT, and Rejected Counterclaim on Merits, Inv. Arb. Rep. (Nov. 1, 2017), at www.iareporter.com/articles/looking-back-in-first-treaty-claim-under-scc-rules-arbitrators-in-the-long-opaque-biedermann-case-held-kazakhstan-liable-for-breaching-us-kazak-bit-and-rejected-counterclaim-on-merits; Emilio Maffezini v. Spain, ICSID Case No. ARB/97/7, Award (Nov. 9, 2000) [hereinafter Maffezini]; Bogdanov, supra note 76; SARL Energoalians v. Moldova, Arbitral Award (UNCITRAL Oct. 23, 2013) [hereinafter Energoalians]; Gentini, X RIAA 551 (1903); Spader, IX RIAA 223 (1903).
302 Wena, supra note 301, para. 106 (emphasis added). The tribunal did not elaborate on why “necessarily” was included; other statements of the rule do not insert this qualifier.
303 However, the Biedermann tribunal held that a Kazakh law time-bar did not apply to the claimant's treaty claim, but that it would have applied to a contract claim. See Hepburn, supra note 301.
304 Alan Craig v. Ministry of Energy of Iran, 3 Iran-U.S. Claims Tribunal 280, 287 (1984). See also George Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal 480 (1996).
305 Caratube, supra note 11, paras. 415–21.
306 The Gavazzi tribunal commented that “[i]n arbitration proceedings governed by international law, only international law—and not domestic law—can introduce time-bars.” Marco Gavazzi v. Romania, ICSID Case No. ARB/12/25, Decision on Jurisdiction, Admissibility and Liability, para. 147 (Apr. 21, 2015).
307 Caratube, supra note 11, para. 415; Wena, supra note 301, para. 107. The Caratube position is slightly complicated by the fact that the tribunal majority sometimes appeared to treat the breach of contract claims as international law claims of expropriation. Caratube, supra note 11, para. 415.
308 Energoalians, supra note 301, para. 122.
309 The issue was side-stepped in AES v. Kazakhstan, where the tribunal found no breach of the FIL anyway. AES, supra note 11, para. 430.
310 Interocean, supra note 11, para. 124.
311 Pac Rim Jurisdiction, supra note 73, paras. 5.32–.33.
312 Pac Rim Merits, supra note 253, para. 5.71.
313 The treaty basis of ICSID claims was perhaps what the Maffezini tribunal had in mind in its unreasoned assertion that domestic time-bars “cannot apply to claims filed under the ICSID Convention” without distinguishing between contract, FIL, or treaty claims. Maffezini, supra note 301, para. 93.
314 Luke Peterson, Arbitrators Hold State Liable for a Denial of Justice Occurring in Relation to Actions Taken in International Forums; “Rule of Law” Treaty Obligation Also Breached, Inv. Arb. Rep. (July 14, 2016), at www.iareporter.com/articles/arbitrators-hold-state-liable-for-a-denial-of-justice-occurring-in-relation-to-actions-taken-in-international-forums-rule-of-law-treaty-obligation-also-breached; Himpurna California Energy Ltd. v. Indonesia, Interim Award, para. 184 (UNCITRAL Sept. 26, 1999). See also Stephen Schwebel, International Arbitration: Three Salient Problems 61–143 (1987).
315 In Burlington v. Ecuador, the ICSID tribunal applied a domestic law time-bar to elements of Ecuador's counterclaim brought against Burlington for alleged breaches of Ecuadorian law. Neither party appeared to suggest that the international character of the ICSID claim ruled out the relevance of a domestic time-bar. However, the tribunal seemingly treated the time-bar as a substantive element of liability under Ecuadorian tort law, rather than a procedural bar on the claim at the international or domestic level. See Burlington Resources Inc. v. Ecuador, ICSID Case No. ARB/08/5, Decision on Counterclaims, para. 253 (Feb. 7, 2017). Thus, Burlington does not necessarily go against the trend observed above. Meanwhile, the sole arbitrator in World Wide Minerals v. Kazakhstan reportedly applied a domestic time-bar in an UNCITRAL-rules case alleging violations of a loan agreement, a FIL, and customary international law. The award in that case is unpublished, leaving any potential reconciliation with other cases unclear. See Luke Peterson, Mining Company's Arbitration Against Kazakhstan Under Foreign Investment Statute is Dismissed Due to Time-Bar, Inv. Arb. Rep. (May 3, 2011), at www.iareporter.com/articles/mining-companys-arbitration-against-kazakhstan-under-foreign-investment-statute-is-dismissed-due-to-time-bar.
316 See supra note 257.
317 See, e.g., Alvik, supra note 165, chs. 2–3.
318 See, e.g., Mann, Francis, The Law Governing State Contracts, 21 Brit. Y.B. Int'l L. 11 (1944); Mann, Francis, State Contracts and State Responsibility, 54 AJIL 572 (1960). Cf. Antony Anghie, Imperialism, Sovereignty and the Making of International Law 223–35 (2005); Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (2011) (especially chapter 4).
319 Cf. Egypt's 1957 declaration on the Suez Canal, which indicated that it “constitutes an international instrument.” The declaration was one instance of state practice discussed by the ILC. See Eighth Report of the Special Rapporteur, supra note 54, para 58.
320 Cf. Roberts, supra note 33, at 45.
321 Crawford, supra note 141; Yuval Shany, Contract Claims vs. Treaty Claims: Mapping Conflicts Between ICSID Decisions on Multisourced Investment Claims, 99 AJIL 835 (2005); Anthony Sinclair, Bridging the Contract/Treaty Divide, in International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Christina Binder, Ursula Kriebaum, August Reinisch & Stephan Wittich eds., 2009).
322 See supra note 11.
323 See Dumberry, supra note 213.
324 Reisman & Arsanjani, supra note 89; Paparinskis, supra note 131, at 252.
325 d'Aspremont, Jean, International Law-Making by Non-State Actors: Changing the Model or Putting the Phenomenon into Perspective?, in Non-State Actor Dynamics in International Law: From Law-Takers to Law-Makers 178 (Noortmann, Math & Ryngaert, Cedric eds., 2010); Roberts, Anthea & Sivakumaran, Sandesh, Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law, 37 Yale J. Int'l L. 107, 111–15 (2012).
326 See text accompanying note 120 supra.
327 Helmut Philipp Aust, Between Universal Aspiration and Local Application: Concluding Observations, in Aust & Nolte, supra note 260, at 344; cf. Eirik Bjorge, Domestic Application of the ECHR: Courts as Faithful Trustees 245 (2015).
For invaluable comments, criticisms, and assistance, I thank Farrah Ahmed, Jonathan Bonnitcha, Hilary Charlesworth, Kathleen Claussen, Charles-Emmanuel Côté, Alison Duxbury, Andrea Leiter, Martins Paparinskis, Lauge Poulsen, Sebastián Rioseco, Tim Stephens, Thomas van Giffen, Tania Voon, the participants in the 2018 Four Societies conference and the 2018 Society of International Economic Law conference, and the anonymous AJIL reviewers. I am also very grateful to the Melbourne Law School Academic Research Service for research assistance, and to the Australian and New Zealand Society of International Law for enabling my attendance at the 2018 Four Societies conference.
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