The Applicable Law in Investor-State Arbitration

Document Type

Book Chapter

Publication Date

12-2024

DOI

https://doi.org/10.1093/9780191975936.003.0012

Abstract

The merits of an investor-state dispute are governed first and foremost by the terms of the applicable treaty (or contract or statute) under which a claim arises. However, the gaps in those instruments are so great that, no matter how they are worded, recourse to international law in any of its forms is unavoidable. Further, though national law does not in principle govern the merits of any such dispute, it necessarily determines a number of issues ancillary to the merits, such as the nationality of the investor, the scope of the claimant’s property interest, and the lawfulness of the investment. Where an umbrella clause is present, matters become somewhat more complicated. Of especially topical interest is the European Union’s assertion that investment protections are subject to norms of EU law by virtue of EU law’s international law status. Because certain EU law norms—most notably the asserted ‘autonomy’ of EU law—dictate outcomes at variance with those contemplated by the treaty and international law more generally, those norms may operate as a challenge to the purposes that investment protection agreements are meant to serve.

Disciplines

Conflict of Laws | Dispute Resolution and Arbitration | European Law | Law

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