This chapter offers a concise analysis of the legal framework on the protection of foreign investment at the time of the League of Nations, in many respects a rather turbulent period. Such legal framework was essentially composed of a rudimentary network of very heterogeneous bilateral treaties, some basic customary rules, and some broad general principles largely based on the notions of justice and equity. Many fundamental questions remain fiercely disputed, and insurmountable divergences between states to a large extent frustrated the attempts to codify the international rules on the protection of foreigners and their property. Yet the legacy of this period should not be underestimated. From a substantive perspective, state practice already demonstrated a certain convergence on some basic rules on the treatment of foreign investors, while some legal claims put forward by some states – including the so-called Hull formula concerning compensation for expropriation – failed to muster the general acceptance necessary to become legally binding rules. Regarding the settlement of investment-related disputes, an embryonic role for investors started to surface in this period.

The chapter gives an overview of dispute settlement during the Old Regime. Contrary to older assessments of the historiography, dispute settlement retained its importance in this era, both in qualitative and in quantitative terms. This was true for the field of theoretical literatures, which, from the last decades of the seventeenth century, dealt intensively with the subject. Normally, a clear distinction was made between an elected arbiter, who definitively decided a dispute, and a mediator, who only made peace proposals. Diplomatic practice, which made intensive use of the instruments of dispute settlement until the last decades of the eighteenth century, was much more flexible. The transitions between arbitration and mediation were fluid; the boundaries of confession and rank were also frequently crossed. In Old Regime Europe, mediation was also used for the first time in peace negotiations between Christian and Islamic powers. New forms of mediation emerged as well. One was the armed mediation, in which a power intervened in a conflict uninvited and set a peace ultimatum; this could easily lead to war. This indicates that dispute settlement did not automatically contribute to an increase in peace; the relationship of dispute settlement to war and peace remained rather ambivalent in Old Regime Europe.

In the early modern age, the settlement of disputes between the actors of ‘international’ relations hinged on communication channels and negotiation networks that were meant to limit the recourse to violence. Multireligious Renaissance Europe saw the emergence of the jus gentium – as a distinct, gestating branch of law – and modern diplomacy, perceived as a social and cultural practice used not only by sovereigns, but also by non-sovereign actors – a practice allowing both Europeans and non-Europeans to engage in formal and informal interactions, in state and non-state settings, through the elaboration of common languages, of (verbal and symbolic) communication practices and of shared political and legal cultures. In a belligerent era, which spawned many wars, European diplomacy developed new forms of negotiation that attest to an elaborate ‘art of peace’. By the end of the period, the Thirty Years War ended with the first experience of dispute settlement through multilateral talks involving nearly all European powers in Westphalia (1643-9) and reflecting conflicts that attest to the successive integration of non-European territories in ongoing European dispute. The congress demonstrated both the effectiveness and the limitations of this innovative negotiation model.

Investment facilitation provisions are incorporated in many international investment agreements (IIAs). Especially, because investment facilitation measures have their root in international trade law and investment law and national law, disputes concerning these measures could be settled through methods in these different legal regimes. Notably, such disputes could be submitted to investor–state dispute settlement (ISDS) or WTO dispute settlement, or both, by different types of disputants and relying on different treaties or laws. This makes settlement of investment facilitation disputes a complicated issue. This chapter presents a structural review of the issue of settlement of investment facilitation disputes, including dispute prevention, settlement of investment facilitation disputes through ISDS, and WTO dispute settlement, and explores the issue of parallel jurisdiction over investment facilitation disputes.

Dispute settlement is at the heart of trade agreements in the twenty-first century. As rules have proliferated, the importance of enforcement has likewise grown. In the late 1990s and early 2000s, the focus in trade agreements was state-to-state dispute settlement where one state would bring an action against another for the latter’s breach of the agreement. In recent years, however, the role and design of dispute settlement mechanisms have begun to evolve. This chapter examines that evolution and its future direction. It begins by reviewing recent innovations and the disputes that have arisen under those mechanisms. Next, it studies how these trends have highlighted additional areas for study in the areas of procedures, institutions, and remedies. Finally, the chapter turns to the purpose of dispute settlement mechanisms in trade agreements and argues that the future of dispute settlement is multipurpose and multi-optional.

The World Trade Organization (WTO) regime has a significant role to play in disciplining secondary sanctions. It provides substantial standards and procedures that differ from and supplement applicable standards and potential remedies under general public international law. The WTO system may address the specifics of secondary sanctions in different ways. In this chapter three perspectives are discussed in this regard. First, it is observed that non-discrimination standards in trade law may capture what appears to be unfair about secondary sanctions, as such standards would fail to detect discrimination, where all WTO Members – target Members and third Members – would be sanctioned alike. Second, however, WTO exception clauses can take into consideration that secondary sanctions are significantly more distant in terms of a connection between the measure and a legitimate policy objective as required under standards of good faith. Third and relating to fairness, WTO dispute settlement would open an opportunity for affected Members to seek a rebalancing of rights and obligations even in cases where a measure would be considered to conform to WTO rules.

This chapter evaluates the emergence and development of “surveillance” as the preferred non-compliance mechanism within the IMF architecture. This is thanks to its broad flexibility and original mechanism. The nature and scope of surveillance, as well as the factors explaining its success, will be assessed. In contrast, alternative dispute settlement mechanisms, such as international courts, have been resorted to in a limited way. This chapter will therefore highlight the specific role of international law within the field of international monetary relations, as well as illustrating how international monetary relations provide international law with original new tools and concepts.

Much ink in international law scholarship has been spilled on questions of institutional design surrounding dispute settlement. Commentators over the last forty years have praised the concept of third-party dispute settlement as a great achievement in our sovereigntist discipline. These are typically State-to-State mechanisms, although not exclusively so. When we consider “compliance” in international law, most questions of design concentrate on these institutions in which one State maintains that another has violated the latter’s commitments. Today, however, the targets of international legal obligations are changing, and with them the concept of compliance. This chapter assesses trade non-compliance mechanisms (NCMs) and argues that they exhibit significant potential for expansive reach while also suffering shortcomings. The chapter closes by mapping these normative evaluations onto conventional compliance theories to draw conclusions about those theories’ resilience and flexibility before making recommendations both for trade law and international law more generally.

In this chapter, Malgosia Fitzmaurice examines the procedures and mechanisms for the peaceful settlement of environmental disputes. This chapter deals with the issue of classical settlement of environmental disputes and the relatively new and still-evolving phenomenon of so-called non-compliance procedures, which are an element of the legal structure of Multilateral Environmental Agreements and administered by the Conferences of the Parties/Meetings of the Parties. This chapter explores the legitimacy of these procedures and focuses in particular on the question of State consent. It explains that, while classical means of dispute settlement do not present questions of legitimacy, their inherent bilateralism is ill-suited for the protection of the environment. Non-compliance procedures may be a more effective tool in light of their multilateral nature, and recent trends based on co-operative efforts may eliminate, to some degree, questions of legitimacy.

In this chapter, Nicholas Tsagourias and Fiona Middleton examine the role of fact-finding in ascertaining the facts supporting cyber attribution claims. More specifically, it considers the modalities of fact-finding, discusses the challenges it is encountering in the context of cyber attribution, and assesses the proposed cyber attribution mechanisms. The chapter concludes by identifying certain key features a cyber attribution fact-finding mechanism should exhibit to perform its tasks effectively and contribute to the settlement of cyber attribution disputes.

In this chapter, Aris Georgopoulos and Petros Mavroidis examine the contribution of the WTO dispute settlement body to the resolution of trade disputes. This chapter documents the problems and challenges faced by the WTO’s dispute settlement body and reveals their debilitating impact on its work. This chapter then puts forward concrete proposals for the establishment of a new WTO Court and explains why such a course of action has a realistic chance of breaking the current impasse and creating an effective dispute settlement body for trade disputes.

In this chapter, James Mehigan focuses on the contribution of international criminal law (ICL) to the peaceful settlement of international disputes. More specifically, this chapter looks at the aims of ICL and analyses how effective it has been at achieving its international law and criminal law objectives. It argues that ICL does not make the broader contribution to dispute settlement that many commentators hope for because it provides a form of retributive justice that does not necessarily engender a sense of justice for victims, nor contribute to reconciliation or fact-finding. After looking at the impact of ICL in the Former Yugoslavia, this chapter concludes that there is little evidence to show that ICL achieves any of its aims other than individualising guilt and punishing offenders – in other words, ICL’s contribution to the settlement of international disputes is minimal and should not be overstated.

The author assesses the role of consent in processes of binding dispute resolution before international courts and tribunals. He seeks to demonstrate that ‘consent’ has a particular role in binding dispute resolution. This particular role derives from the special nature of binding dispute resolution processes. They are intrusive and characterized by their uncertain outcome: the implications of State consent to the dispute resolution process crucially depend on decisions of an independent entity, namely an international court or tribunal. Because this is so, States insist on the need for consent, as a precondition of any binding dispute resolution process. At the same time, once consent has been given, control shifts to the competent international court or tribunal. Moreover, by virtue of their decision-making authority, many international courts and tribunals have managed to assert at least a persuasive influence over proper construction of the legal rules at stake, extending beyond the cases immediately pending before them. The chapter traces these peculiarities and examines how the tension between State and courts’ authority plays out in particular disputes.