Originally from Investment Treaty Arbitration and International Law Volume 16

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I. INTRODUCTION

It has been suggested that the only valid basis for treaty claims involving judicial action (or inaction)  is the customary international law theory of denial of justice. It is true that denial of justice is an old and venerable concept in international law.  It is also true that state reprisals—one of the oldest mechanisms for remedying perceived injustices in judicial action within a foreign state —were limited to cases of denial of justice  (denegatio justitiae).  But while denial of justice, the prevention of which is a pillar of customary international law (CIL), certainly provides one ground for modern investment treaty claims, there is no support for the proposition that it provides the only valid basis for such claims.

The results of such a limitation would be disastrous to the integrity and effectiveness of the international investment treaty arbitration regime. As a result, it is perhaps no wonder that an analysis of investment claims involving judicial action does not support the contention that such claims must, as a rule, stem from a denial of justice. Even if it did, denial of justice is not limited to the definition available under customary international law. But more importantly, judicial action may breach a multitude of other treaty provisions and international standards without resulting in an outright denial of justice.