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Alongside now-controversial investment treaties, many states also maintain domestic investment statutes. Although these laws offer protections similar to investment treaties and are increasingly applied in investor-state arbitration, they have—unlike the treaties—attracted limited scholarly scrutiny. This article argues that investment statutes can plausibly be characterized either as unilateral acts in international law or as domestic law. The article examines the significant consequences that follow from these characterizations, providing the first comprehensive analysis of these hybrid statutes.

As scholars in the Global Administrative Law project have recognized, doctrines familiar from domestic administrative systems are beginning to appear, in nascent forms, in some areas of international law. This article makes a first attempt to examine the appearance of one such doctrine, the duty to give reasons for administrative decisions, in international case-law. The existence of and rationales for this duty have been contentious in many domestic jurisdictions. The article thus considers the extent to which these debates have been replicated amongst adjudicators at the international level. The focus is on cases in the areas of WTO law, investment law and human rights law. It is found that the case law is not yet extensive, and (perhaps as a result) that no coherent picture emerges. In contrast to domestic systems, the areas examined in international law demonstrate some agreement on the desirability of the duty. However, different international adjudicators have recognized different rationales for the duty, with only limited consensus even within each area of international law studied.

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Investment law was not always about investor–state arbitration. Based on British and German archival materials from the Cold War, this paper shows how aims and priorities in the investment treaty regime changed over time. We find important differences in the role and relative importance of different legal rules then and now. Most notably, national treatment and free transfer clauses were key in early investment law, whereas fair and equitable treatment was regarded as relatively unimportant. At the same time, early drafters did anticipate some of the most contentious issues in modern investment law, including treaty shopping, shareholder protection, and the ‘no greater rights’ proviso.