Investment Treaty Arbitral Decisions as Jurisprudence Constante

Bjorklund, Andrea K.

doi:10.2139/ssrn.1319834

Cited by 8 publications

(2 citation statements)

References 7 publications

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“…In other words, the crux of the theory of the sources of investment law is precisely the preservation of the legitimacy of cross-referencing practice of investment tribunals. 203 Theories of sources are necessarily conducive to ensuring the legitimacy and authority of judicial decisions.…”

Section: The Normative Value Of Precedents (Jurisprudence Constante)mentioning

confidence: 99%

International Customary Investment Law: Story of a Paradox

Aspremont¹

2012

International Investment Law

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This chapter zeroes in on customary international law and examines the role played by this specific source of law in the development of international investment law. After a few considerations on the early phase of development of an international investment protection regime and the search for a customary international protection of aliens, this chapter shows how the maturation of investment protection has been achieved through treatification and a move away from customary law. It then turns to the paradox of the theory of the sources of investment law and demonstrates how the completion of treatification through bilateral investment treaties (hereafter

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Section: The Normative Value Of Precedents (Jurisprudence Constante)mentioning

confidence: 99%

International Customary Investment Law: Story of a Paradox

Aspremont¹

2012

International Investment Law

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“…13 It seems that in early ICSID cases the tribunals were not much willing to deliberate about the issue. 14 The Fedax tribunal turned to the writings of Professor Schreuer and concluded that the basic features of investment (for Article 25(1) purposes) were a certain duration, a certain regularity of profit and return, assumption of risk, a substantial commitment, and significance for the host State's development. 15 These criteria were followed by the tribunal in the Salini v. Morocco 16 case (giving the name to the so-called Salini test), with the exception of the need for certain regularity of profit and return, while also noting the need to assess all these criteria globally, in light of their interdependence.…”

Section: Current Criteria For Recognitionmentioning

confidence: 99%

Recognition of Contracts as Investments in International Investment Arbitration

Živković

2012

SSRN Journal

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The issue of recognition of contractual rights as protected investments in international investment arbitration, primarily under the auspices of ICSID, has sparked divergent approaches in case law. Treatment of certain contracts and the criteria used differ, which leads to unwelcome consequence of lowering legal certainty in a very sensitive issue. The aim of this paper is to contribute to enhancement and clarification of legal reasoning in this area, with a special focus on the criteria to be used and on sales contracts which are particularly controversial in practice. This is done through the analysis of the current state of affairs which is followed by a proposition of a new model of criteria which could present a beneficial compromise between the existing models and increase certainty.

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Consistency in Investor-State Arbitration

Marisi

2023

Studies in European Economic Law and Regulation

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Investment Treaty Arbitral Decisions as Jurisprudence Constante

Cited by 8 publications

References 7 publications

International Customary Investment Law: Story of a Paradox

International Customary Investment Law: Story of a Paradox

Recognition of Contracts as Investments in International Investment Arbitration

Consistency in Investor-State Arbitration

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