Boundaries of Investment Arbitration
The Boundaries of Investment Arbitration analyses references to European human rights and WTO law in investor-state rulings, advances reasons for these resorts to “non-investment” law, and puts these “boundary crossings” in broader context. It enumerates the legal gateways for these “public law” references and considers what engagement with human rights and trade law tells us about the motivations of investor-state arbitrators, scholars, and civil society. Exploring when and how arbitrators or litigants reach into other international law regimes to interpret the content of international investment law says a great deal about what that law is—and is not.
Investment law practitioners are likely to find the author’s enumeration of the many ISDS rulings that refer to trade or European human rights law (which are summarized in tables that identify the issues on which these references are considered relevant) useful in the course of litigation. Those concerned with contemporary debates over the future of the investment regime will be equally interested in whether such boundary crossings make international investment law more or less “fair,” “consistent,” or “legitimate.”
Title Page and Table of Contents
Chapter 1 - Introduction: Boundary Crossings and Why They Occur
A. The Reality of Boundary Crossings
B. The Entry Points for Trade/European Human Rights Boundary Crossings
C. What Motivates Investor-State Arbitrators to Engage in Boundary Crossings?
D. Scholars and Boundary Crossings
Chapter 2 - The Use (and Misuse) of European Human Rights Law by Investor-State Arbitrators
A. Introduction
B. A Survey of European Human Rights Citations in ISDS Case Law
C. Why Is This Happening?
D. A Case Study of Philip Morris v. Uruguay
E. Tentative Conclusions
1. Deracionated, Inconsistent Referrals to ECHR Balancing Principles
2. Explaining the “Nature” of the Two Regimes
3. Blurring the Lines between “Property,” “Possessions,” and “Investments”
4. Demarking the Line between Compensable Expropriation and Legitimate Regulation
5. Determining the Meanings of FET
6. Ensuring a Fair Trial or Access to Court
7. Other Issues
Chapter 3 - The Use (and Misuse) of Trade Law by Investor-State Arbitrators
A. Introduction
B. A Survey of Trade Law Citations in ISDS Case Law
1. WTO References under NAFTA’s Chapter Eleven
2. WTO References Beyond the NAFTA
C. How Much “Trade-Infused” Investment Law Is There?
Chapter 4 - The Promise and Hazards of “Public Law” Boundary Crossings
A. Introduction
B. Comparing European Human Rights and WTO References
C. When Are ECHR or WTO Boundary Crossings Appropriate?
D. Do Boundary Crossings Matter?
E. Conclusion
Appendices and Tables
APPENDIX I: A List of 65 ISDS Rulings with One or More ECHR/ECtHR References
TABLE I: Significant European Human Rights References in ISDS Rulings
APPENDIX II: A List of 58 ISDS Rulings with One or More GATT/WTO References
APPENDIX III: A List of 65 ISDS Rulings with One or More GATT/WTO References
José E. Alvarez, the Herbert and Rose Rubin Professor of International Law at New York University Law School, was previously the Hamilton Fish Professor of International Law and Diplomacy and the executive director of the Center on Global Legal Problems at Columbia Law School. He served as President of the American Society of International Law (ASIL) from 2006–2008 and as the co-editor-in-chief of the American Journal of International Law from April 2013 through April 2018. His books include The Public International Law Regime Governing International Investment (2011) (based on his course at the Hague Academy of International Law), The Impact of International Organizations on International Law (2017) (based on his general course given at the Xiamen Academy of International Law), and International Investment Law (2017). He has published, in addition to other books on international investment and international organizations, more than 100 articles on a number of topics.
Prior to entering academia on a full time basis in 1989, Professor Alvarez was an attorney adviser with the Office of the Legal Adviser of the U.S. Department of State, where he worked on cases before the Iran-U.S. Claims Tribunal, served on the negotiation teams for bilateral investment treaties and the Canada-U.S. Free Trade Agreement, and acted as legal adviser to the administration of justice program in Latin America coordinated by the Agency of International Development. Educated at Harvard College, Harvard Law School, and Oxford University, Professor Alvarez has also been in private practice and was a judicial clerk to the late Honorable Thomas Gibbs Gee of the Fifth Circuit Court of Appeals. He has delivered a number of endowed lectures at universities in the United States and abroad.
Professor Alvarez’s activities outside of academe include memberships in the Council on Foreign Relations and the Institut de Droit International. His pro bono activities include service on the U.S. Department of State’s Advisory Committee on Public International Law, as a board member of the Center for Reproductive Rights, and as special adviser on public international law to the International Criminal Court’s first prosecutor, Luis Moreno Ocampo. For links to a fuller biography, access to publications, and a complete curriculum vitae, see his faculty profile at NYU School of Law at: http://its.law.nyu.edu/faculty profiles/index.cfm?fuseaction=profile.overview&personid=30514.
“The Boundaries of Investment Arbitration tracks the importation of human rights law and trade law into ISDS awards and proceeds to an examination of the factors that lead to horizontal and vertical penetrations of international juridical boundaries. Like all of Jose Alvarez’s work, the research is exhaustive, the scholarship exemplary, the appraisals judicious and fair and the insights original and arresting. This is an important book.”
- W. Michael Reisman, Myres S. McDougal Professor of International Law, Yale Law School
“Investment lawyers have long been accused of silo-thinking and insulating their field from the public international law world around them. This book shows masterfully that this criticism is no longer sustainable, if it ever was. Written by one of the premier thinkers on international investment law, it maps how investment law by now routinely crosses boundaries, in particular in relation to human rights and world trade law, explains the reasons for such boundary crossing, and critically analyzes its effects and challenges. It frames the scholarly debate, and provides guidance for both the practice of investor-state dispute resolution and the policy debates about its reform.”
- Stephan Schill, LL.M., Professor of International and Economic Law and Governance, Amsterdam Center for International Law, Faculty of Law, University of Amsterdam
José E. Alvarez, the Herbert and Rose Rubin Professor of International Law at New York University Law School, was previously the Hamilton Fish Professor of International Law and Diplomacy and the executive director of the Center on Global Legal Problems at Columbia Law School. He served as President of the American Society of International Law (ASIL) from 2006–2008 and as the co-editor-in-chief of the American Journal of International Law from April 2013 through April 2018. His books include The Public International Law Regime Governing International Investment (2011) (based on his course at the Hague Academy of International Law), The Impact of International Organizations on International Law (2017) (based on his general course given at the Xiamen Academy of International Law), and International Investment Law (2017). He has published, in addition to other books on international investment and international organizations, more than 100 articles on a number of topics.
Prior to entering academia on a full time basis in 1989, Professor Alvarez was an attorney adviser with the Office of the Legal Adviser of the U.S. Department of State, where he worked on cases before the Iran-U.S. Claims Tribunal, served on the negotiation teams for bilateral investment treaties and the Canada-U.S. Free Trade Agreement, and acted as legal adviser to the administration of justice program in Latin America coordinated by the Agency of International Development. Educated at Harvard College, Harvard Law School, and Oxford University, Professor Alvarez has also been in private practice and was a judicial clerk to the late Honorable Thomas Gibbs Gee of the Fifth Circuit Court of Appeals. He has delivered a number of endowed lectures at universities in the United States and abroad.
Professor Alvarez’s activities outside of academe include memberships in the Council on Foreign Relations and the Institut de Droit International. His pro bono activities include service on the U.S. Department of State’s Advisory Committee on Public International Law, as a board member of the Center for Reproductive Rights, and as special adviser on public international law to the International Criminal Court’s first prosecutor, Luis Moreno Ocampo. For links to a fuller biography, access to publications, and a complete curriculum vitae, see his faculty profile at NYU School of Law at: http://its.law.nyu.edu/faculty profiles/index.cfm?fuseaction=profile.overview&personid=30514.
“The Boundaries of Investment Arbitration tracks the importation of human rights law and trade law into ISDS awards and proceeds to an examination of the factors that lead to horizontal and vertical penetrations of international juridical boundaries. Like all of Jose Alvarez’s work, the research is exhaustive, the scholarship exemplary, the appraisals judicious and fair and the insights original and arresting. This is an important book.”
- W. Michael Reisman, Myres S. McDougal Professor of International Law, Yale Law School
“Investment lawyers have long been accused of silo-thinking and insulating their field from the public international law world around them. This book shows masterfully that this criticism is no longer sustainable, if it ever was. Written by one of the premier thinkers on international investment law, it maps how investment law by now routinely crosses boundaries, in particular in relation to human rights and world trade law, explains the reasons for such boundary crossing, and critically analyzes its effects and challenges. It frames the scholarly debate, and provides guidance for both the practice of investor-state dispute resolution and the policy debates about its reform.”
- Stephan Schill, LL.M., Professor of International and Economic Law and Governance, Amsterdam Center for International Law, Faculty of Law, University of Amsterdam
Title Page and Table of Contents
Chapter 1 - Introduction: Boundary Crossings and Why They Occur
A. The Reality of Boundary Crossings
B. The Entry Points for Trade/European Human Rights Boundary Crossings
C. What Motivates Investor-State Arbitrators to Engage in Boundary Crossings?
D. Scholars and Boundary Crossings
Chapter 2 - The Use (and Misuse) of European Human Rights Law by Investor-State Arbitrators
A. Introduction
B. A Survey of European Human Rights Citations in ISDS Case Law
C. Why Is This Happening?
D. A Case Study of Philip Morris v. Uruguay
E. Tentative Conclusions
1. Deracionated, Inconsistent Referrals to ECHR Balancing Principles
2. Explaining the “Nature” of the Two Regimes
3. Blurring the Lines between “Property,” “Possessions,” and “Investments”
4. Demarking the Line between Compensable Expropriation and Legitimate Regulation
5. Determining the Meanings of FET
6. Ensuring a Fair Trial or Access to Court
7. Other Issues
Chapter 3 - The Use (and Misuse) of Trade Law by Investor-State Arbitrators
A. Introduction
B. A Survey of Trade Law Citations in ISDS Case Law
1. WTO References under NAFTA’s Chapter Eleven
2. WTO References Beyond the NAFTA
C. How Much “Trade-Infused” Investment Law Is There?
Chapter 4 - The Promise and Hazards of “Public Law” Boundary Crossings
A. Introduction
B. Comparing European Human Rights and WTO References
C. When Are ECHR or WTO Boundary Crossings Appropriate?
D. Do Boundary Crossings Matter?
E. Conclusion
Appendices and Tables
APPENDIX I: A List of 65 ISDS Rulings with One or More ECHR/ECtHR References
TABLE I: Significant European Human Rights References in ISDS Rulings
APPENDIX II: A List of 58 ISDS Rulings with One or More GATT/WTO References
APPENDIX III: A List of 65 ISDS Rulings with One or More GATT/WTO References