The US Collaborative Review of Sterilization investigated the efficacy of various tubal sterilization techniques in 1996. These procedures included clip sterilization, unipolar coagulation, bipolar coagulation, and postpartum partial salpingectomy. Cumulative 10-year probability of pregnancy was determined to be about 18.5 per 1,000 female sterilization procedures [2]. The failure rate range was 7.5–36.5 per 1,000. This included tubal sterilization methods such as postpartum partial salpingectomy, laparoscopic unipolar coagulation, Falope rings, interval partial salpingectomy, bipolar coagulation, and spring clips. Table 14.1 shows the failure rate for the different sterilization techniques after 1 year.

The aftercare provided to a patient following an abortion, or a termination of pregnancy, can improve the safety and the patient’s experience. The content and amount of aftercare required will depend on the patient’s circumstances, method of abortion and whether it was safe or unsafe [1]. Here we aim to discuss the basic principles of abortion aftercare such as what and how to provide information to patients. We go on to discuss reduction of complications and how to manage those that do arise. Furthermore, the importance of contraception within post-abortion care mustn’t be neglected as it reduces future unwanted pregnancies and therefore abortions.

Pre-conception care is defined as ‘any intervention provided to women and couples of childbearing age, regardless of pregnancy status or desire, before pregnancy, to improve health outcomes for women, newborns and children’ [1]. All women hoping to conceive are considered as potential candidates for such a consultation.

The UK Confidential Enquiries into Maternal Deaths (CEMD) has set a gold standard to improve quality and safety in maternity services for over 60 years. It recognizes the importance of learning from every woman’s death, occurring during or after pregnancy, not only for the clinical staff and services involved in the care, but also for the family and friends she leaves behind.

Key Implications

CHAPTER OUTLINE

This chapter examines one of the most common claims brought by foreign investors against host States – an expropriation claim. It is a general rule of international law, around which very few exceptions are hedged, that the taking of foreign-owned property by a State should serve a public purpose, be met by the payment of prompt, adequate and effective compensation, and be carried out in accordance with due process. This rule finds expression in investment treaties which expressly guard against the arbitrary and uncompensated taking of property rights, as well as other rights that fall within the treaty definition of a protected investment. Whether an expropriation claim is well founded depends on three things: first, whether the investor holds rights that are capable of being expropriated; second, whether there is an actual taking or substantial deprivation of those rights by the State; and third, whether the expropriation meets the conditions for a lawful expropriation. To this end, Section 1 analyses the object, Section 2 the existence and Section 3 the legality of an expropriation.

INTRODUCTION

The right to expropriate inheres in every State. This right is recognised under national law, as well as under international law. An act of expropriation, in and of itself, is neither prohibited by national law nor by international law. An expropriation is not objectionable so long as it satisfies prescribed cumulative conditions for lawfulness. These typically include the pursuit of public purpose, the payment of prompt, adequate and effective compensation, and the observance of due process, which may include non- discrimination. The crux of the challenge to host State activity in an expropriation claim brought by a foreign investor is the legality of the expropriation. The strength of the challenge is assessed in three stages.

The first stage verifies that the rights which the investor seeks to protect can form the object of expropriation. The object of expropriation is not limited to property or property rights. Certain contractual rights, for instance, may be expropriated. Moreover, when an expropriation claim is brought pursuant to an investment treaty, any right that falls within the treaty definition of a protected investment ought to reap the protection of the expropriation clause. In some cases, there are doubts over whether the investor is the proper party to defend the affected right through an expropriation claim.

CHAPTER OUTLINE

This chapter covers the second of two preliminary issues that arise for consideration in investment arbitration. It should be read in conjunction with Chapter 6, which deals with applicable laws. Section 1 examines how the burden of proof is allocated in investor- State disputes, while Section 2 examines how the standard of proof is articulated and applied by investment arbitration tribunals.

INTRODUCTION

The treatment of evidence is a topical concern of arbitral tribunals. Unlike national courts which are bound by national laws, international courts and tribunals are unfettered by any hard and fast rules in their assessment of evidence tendered by the disputing parties. There is an overwhelming tendency to admit and assess all evidence. Earlier investment arbitration tribunals rarely discussed how evidence presented by the parties should be assessed. In contrast, modern-day investment arbitration tribunals articulate thresholds on the strength of submitted evidence that parties need to meet to prevail.

There is often a voluminous amount of evidence that is submitted by the parties, analysed by counsel and arbitrators, and cited in support of the tribunal's decision in investment arbitration. Yet, there are no hard and fast rules governing the assessment of evidence. National laws on evidence do not apply unless the disputing parties make provision for it, and national laws on evidence are not binding in the way that mandatory rules of the forum are. Additionally, there is no international law, customary or treaty, on how evidence should be assessed. Moreover, most institutional rules are silent on the matter. Investment arbitration tribunals have embraced the ability to assess evidence absent applicable laws. However, this has not stopped tribunals from proffering some general guiding principles on the allocation of the burden of proof and the standard of proof.

THE BURDEN OF PROOF

The burden of proof is a legal term of art that denotes the duty to persuade a court or a tribunal. A party that bears the burden of proof on a given matter is the party that must adduce evidence to persuade a court or a tribunal of the truth or falsity of that matter. In other words, the burden of proof is a tie-breaker in contentious proceedings.

The past two decades epitomised the emergence of international investment arbitration as one of the most dynamic areas of legal practice. Given the considerable number of published arbitral awards and legal writings, and the underlying public international law principles, acquiring a firm understanding of international investment law and arbitration has become harder for students, practitioners and others. There is a place for a book which reproduces within a single, portable volume selected extracts from arbitral decisions, other documents and legal writings accompanied by concise, up-to-date and reliable commentary on both the law and procedure of international investment arbitration. Questions of procedure and practice have become bound up with the application of substantive international law protections, raising important questions of technical international law. There is also the need for the subject to be explained in academic institutions in a way which reflects its historical development, conceptual basis and intellectual contribution to the peaceful settlement of disputes. It is this combination of aims which this book seeks to advance.

A further justification is that the field is in a renewed state of flux. It appeared to us that there is scope for a book which aims to convey the effect of these broader developments, not least on the latest innovations in treaty design and language. However, we have also been wary of exaggerating the current backlash against investment treaties and arbitration. While this book is alive to the gathering forces of change, for now one need look no further than the facts of daily legal practice and the largely unaltered aims of the subject.

The present book draws upon the experience derived from teaching the subject in three different jurisdictions. No work can be faultless. It is especially true of a first edition and we hope to benefit from the comments of our peers about the ways in which this first attempt might be improved. In terms of the allocation of writing responsibility, Lim was tasked with Chapters 1, 4, 8, 11, 14, 17, 18 and 19; Ho with Chapters 2, 3, 6, 7, 9, 10, 13 and 16; and Paparinskis with Chapters 5, 12 and 15. We have tried to state the law and its surrounding developments as they appeared to us in May 2017.

CHAPTER OUTLINE

This chapter discusses the remedies awarded by investment arbitration tribunals upon a finding that the host State is liable for the breach of an international obligation. Section 1 establishes the principle of reparation for internationally wrongful acts by which investment arbitration tribunals are guided, while Section 2 examines how this principle is borne out in the award of compensation and restitution. Section 3 sets out the principal methods for quantifying pecuniary remedies, and Section 4 considers the award of interest on pecuniary remedies.

INTRODUCTION

The award, categorisation and quantification of remedies make up what is possibly the most critical and complex topic in international investment law and arbitration. This is because aggrieved investors lodge claims against host States for violating international obligations, with the overriding objective of obtaining concrete relief for the wrongs they have suffered. A finding by the arbitral tribunal that the host State has violated international law, whether by breaching a customary or treaty obligation, is a necessary precondition to the award of remedies. That said, whether it was ultimately worth an investor's while to bring a claim boils down to the nature and amount of relief awarded. Foreign investment often involves substantial capital outlay. The inability to recoup this outlay because of host State interference with the investment compels the affected investor to seek recompense for its losses elsewhere. Obtaining declaratory relief that the host State has violated its investment protection obligations is important for showing there is a strong legal basis for a claim, but it is the order for defaulting host States to pay that provides the most tangible form of satisfaction of a successful claim.

Although remedies in investment arbitration are not limited to monetary relief, this is the most commonly sought and awarded type of remedy. The discussion in this chapter reflects this emphasis. There are four considerations in the award of remedies in investment arbitration. The first is the principle of full reparation, a remedial rule of customary status, that is applied when a State is found liable for the commission of an internationally wrongful act. The second is the character of the loss suffered and the type of remedy that is best-suited for restoring the claimant to a pre-loss position.

CHAPTER OUTLINE

This chapter discusses two important ‘absolute’ standards of treaty protection – fair and equitable treatment (FET) and full protection and security (FPS). Section 1 explains the idea of an international minimum standard (MST) for the protection of foreign-owned property, and its oft-perceived relationship with both FET and FPS treaty clauses. Section 2 contains excerpts of some well-known arbitral awards discussing both FET and FPS. Section 2.1 describes the most common heads of claim under the general rubric of FET. Section 2.2 goes on to reproduce tribunal awards which discuss the precise standard of treatment under FPS. Thereafter, Section 2.3 discusses some of the complexities faced today in the growing inter-relationship between FET and FPS. Section 3 goes on to reproduce two of the latest treaty clauses, including an attempt to enumerate and particularise the contents of the FET obligation, while Section 4 contains an expanded discussion of a possible key difference between ‘qualified’ and ‘unqualified’ treaty clauses – i.e. a difference which turns upon whether the treaty language stipulates or suggests a connection with customary international law standards of protection. Notwithstanding particular forms of treaty language, might there be a latent and even more complex conceptual interaction between custom and treaty? That issue might perhaps be distilled into a single question – with the many thousands of bilateral investment treaties which have come into being, has not the customary international law standard of protection risen over time on the back of such treaty practice?

INTRODUCTION

The standards discussed in this chapter are referred to as ‘absolute’, the reason being that unlike the most favoured nation standard which requires all foreign investors to be treated equally favourably, or the national treatment standard which requires foreign and domestic investors to be treated equally favourably, fair and equitable treatment (FET) and full protection and security (‘FPS’) are not measured against – they are not ‘relative to’ – the nature of treatment given elsewhere. It is also to be noted that a FET claim is the most popular head of claim today, by reason of the fact that it may be easier to establish than an expropriation claim.

RELATIONSHIP WITH AN INTERNATIONAL MINIMUM STANDARD OF TREATMENT

The ‘Minimum Standard’ of Treatment

We begin with the perspective most commonly associated with contemporary US treaties.