Custom and its Interpretation in International Investment Law: Volume 2

This edited volume provides an in-depth study of customary international law and its interpretation in international investment law.

Panos Merkouris (Edited by), Andreas Kulick (Edited by), José Manuel Álvarez-Zarate (Edited by), Maciej Żenkiewicz (Edited by), Konrad Turnbull (Associate editor)

9781009255424, Cambridge University Press

Hardback, published 18 January 2024

432 pages
23.5 x 15.5 x 2.7 cm, 0.826 kg

'What, might one think, could international investment law, one of the 'hottest' topics in international law and practice today, have to do with international customary law - traditional and venerable certainly, but also old-fashioned and always number two among international law's sources? The answer given by this timely book is: a lot, with custom mostly 'embedding' investment law comfortably, but in some instances also clarifying it or even challenging it, to put it mildly. Just think: are we to accept that tribunals composed of three private lawyers may confirm, interpret or even change customary standards of behaviour by way of developing what they would like to see as FET or as rules of state responsibility?' Judge Bruna Simma, Iran-United States Claims Tribunal

At first glance, one may think of international investment law as a response to custom (or lack thereof), instead of a field of its application. However, in fact, the opposite is the case. The interpretation and application of customary rules and principles are the bread and butter of international investment law and arbitration. With a diverse range of expert contributors, this collection traces how customary international law is practised in international investment law. It considers how custom should be interpreted and how its rules and principles should be understood and applied by investor-state arbitral tribunals. Raising and addressing vital questions surrounding custom and international law, this collection is a necessary contribution to the scholarship of the theory and history of customary international law and international investment law. This title is also available as Open Access on Cambridge Core.

Foreword
Custom and international investment law Horacio A. Grigera Naón
Part I. Identifying Custom in International Investment Law: 1. The 'minimum standard of treatment' in international investment law: the fascinating story of the emergence, the decline and the recent resurrection of a concept Patrick Dumberry
2. The recourse to legal experts for the establishment and interpretation of customary norms in investment law Saïda El Boudouhi
3. The identification of customary international law and international investment law and arbitration: state practice in connection with investor-state proceedings Diego Mejía-Lemos
4. Assessing damages in customary international law: the chorzów's tale José Manuel Álvarez-Zarate
Part II. The Interpretation of Secondary Rules in International Investment Law: 5. The uses of the work of the international law commission on state responsibility in international investment arbitration Sotirios-Ioannis Lekkas
6. Revisiting the availability of countermeasures in investment arbitration Anna Ventouratou
7. investment tribunals, the duty of compensation in cases of necessity: a customary law void? Federica I Paddeu
8. 'A riddle wrapped in a mystery inside an enigma': equitable considerations in the assessment of damages by investment tribunals Emmanuel Giakoumakis
9. Conflict of treaty norms and subsequent agreements in relation to the interpretation of treaties in international investment law Łukasz Kułaga
Part III. Interpreting Customary International Law: Current Challenges: 10. Police powers in a pandemic: investment treaty arbitration and the customary presumption of reasonable regulation Oliver Hailes
11. Bilateral investment treaties, investor obligations and customary international environmental law Madhav Mallya
12. The role of custom in international investment law remedies: the curious case of natural resources Filip Balcerzak
13. A twail engagement with customary international investment law: some strategies for interpretation Nina Mileva
14. Custom and its interpretation in international investment law: final musings Panos Merkouris, Andreas Kulick, José Manuel Álvarez-Zarate and Maciej Żenkiewicz.

Subject Areas: Public international law [LBB]