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International Investment Law as International Law: Russian and Western Approaches

  • Dmitry K. Labin (a1) and Alena V. Soloveva (a2)
Extract

No Western publication on international investment law (IIL) has ever specifically undertaken a comparative study of Russian and Western doctrines of IIL. Although Russian scholars often contrast Western and Russian approaches to international law, scholars in the West mostly proceed without any discussion of Russian practice and perspectives. To fill this gap, this essay introduces the Russian approach to IIL and contrasts it with its Western counterpart. In particular, we show that the Russian approach focuses far more extensively on the nature and categorization of IIL and treats IIL primarily as private international law rather than public international law. The distinctive Russian approach has practical relevance for states and scholars, in part because it helps to explain why Russia has resisted efforts to reform investor-state dispute settlement.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Valery Lisitsa, Investment Law 25 (2015). Russian authorities cited in notes 2–20, except for notes 9–10 and 13, are in Russian. All translations from Russian herein are by the present authors.

2 Anna V. Popova, Investment Law as an Integral Element of the Russian Law System, L. & Mod. States 17 (No. 4, 2014).

3 Arsen Ajupov, On the Place of International Investment Law Within the System of International Law, Russ. Newsl. on Foreign Econ. 74 (Jan. 2007).

4 Larisa Volova, Development of the International Regime of Foreign Investments, Terra Economicus 116, 118 (No. 4, 2011).

5 Vladimir Shumilov, International Economic Law 530–33 (2011).

6 International Law: Textbook in 2 Volumes 272 (Alexander Vylegzhanin ed., 2015).

7 Shumilov, supra note 5, at 541.

8 See, e.g., Mark Boguslavskij, Private International Law 264 (2009); Galina Dmitrieva, Private International Law (2013); Natalia Erpyleva, Private International Law (2012).

10 Convention Establishing the Multilateral Investment Guarantee Agency, Oct. 11, 1985, TIAS No. 12089, 24 I.L.M. 1598 (1985).

11 Valery Lisitsa, Legal Regime of Investment Relations: Theory, Legislation and Applicable Practice 53 (2011).

12 Boguslavskij, supra note 8, at 21.

13 Rudolf Dolzer & Christoph Schreuer, Principles of International Investment Law 44 (2d ed. 2012).

14 Alexander Bogatyrev, Investment Law (1992).

15 See Dmitry Labin, International Legal Regulation of Foreign Investment (2001).

16 See Natalia Doronina, Regulatory Principles as an Interpretational Source for Legal Norms (the Case of Bilateral Treaties on Investment Protection), Russ. L.J. 123 (No. 5, 2016); Olga Tolochko, On the Question of the Legal Regulation of Contemporary International Economic Relations, S. Fed. Univ. L. Sch. Newsl. 66 (No. 1, 2005).

17 International Economic Law 182–91 (Alexander Vylegzhanin ed., 2012).

18 Tolochko, supra note 16, at 66–73.

19 See Campbell McLachlan, Investment Treaties and General International Law, 57 Int'l & Comp. L.Q. 361, 397 (2008); Joost Pauwelyn, At the Edge of Chaos? Foreign Investment Law as a Complex Adaptive System, How It Emerged and How It Can Be Reformed, 29 ICSID Rev. 372 (2014).

21 Anthea Roberts, Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System, 107 AJIL 45, 46–47, 57 (2013).

22 David Collins, An Introduction to International Investment Law sec. 1.1, at 1 (2016).

23 See, e.g., Investment Law Within International Law: Integrationist Perspectives (Freya Baetens ed., 2013); Giorgio Sacerdoti, Bilateral Treaties and Multilateral Instruments on Investment Protection, 269 Receuil des Cours 251 (1997).

24 Stephan W. Schill, W(h)ither Fragmentation? On the Literature and Sociology of International Investment Law, 22 Eur. J. Int'l L. 875, 883 (2001).

25 Id.

26 Rudolf Dolzer & Margrete Stevens, Bilateral Investment Treaties (1995).

27 Charles N. Brower & Jason D. Brueschke, The Iran-United States Claims Tribunal (1998).

28 Christoph Schreuer, The ICSID Convention – A Commentary (2001).

29 Schill, supra note 24, at 882.

30 See, e.g., José E. Alvarez, The Public International Law Regime Governing International Investment (2011); Andrew Newcombe & Lluís Paradell, Law and Practice of Investment Treaties (2009).

31 Collins, supra note 22, at sec. 1.1, at 1.

33 Roberts, supra note 21, at 45, 50.

34 Steven R. Ratner, International Investment Law Through the Lens of Global Justice, 20 J. Int'l Econ. L. 747, 751 (2017).

35 Erpyleva, supra note 8, at 515.

36 See, e.g., Zachary Douglas, The Hybrid Foundations of Investment Treaty Arbitration, 2003 Brit. Y.B. Int'l L. 151; Roberts, supra note 21, at 50.

37 Recording: United Nations Comm'n on Int'l Trade Law, 34th Sess. (Nov. 1 – Dec. 2017).

38 Id.

39 UN Comm'n on Int'l Trade Law, Possible Reform of Investor-State Dispute Settlement (ISDS): Submission from the European Union, UN Doc. A/CN.9/WG.III/WP.145, Annex, para. 3 (Nov. 20, 2017).

40 Recording: United Nations Comm'n on Int'l Trade Law, supra note 37.

41 Anthea Roberts, Is International Law International? 187-88 (2017).

42 Id.

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