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International Investor Obligations / Chapter 8. Interim Conclusion: Established Indirect Obligations
International Investor Obligations / Chapter 8. Interim Conclusion: Established Indirect Obligations
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1–16
Titelei/Inhaltsverzeichnis
1–16
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17–35
Chapter 1. Introduction: The Need for International Investor Obligations
17–35
Details
I. Interactions between foreign investment and the public interest
II. The regulatory setting: Investment agreements and the right to regulate
1. Regulating as a function of the state
2. Foundations of international investment law
3. The right to regulate debate
III. The need for international investor obligations?
1. The discussion on the international responsibility of corporations
2. International investor rights without obligations?
3. A practical example
IV. Exploring investor obligations in investment law
36–36
Part I Direct Obligations
36–36
Details
37–52
Chapter 2. Preconditions of Direct Obligations
37–52
Details
I. Direct applicability
II. International subjectivity
III. Non-application of the pacta tertiis principle
IV. Direct obligations as the exception in international law
V. Investment law’s asymmetry
1. The traditional focus on investor rights
2. Recent integration of CSR norms
VI. Interim conclusion: Few preconditions, few role-models
53–118
Chapter 3. Direct Obligations in Investment Law Practice
53–118
Details
I. Integrating external obligations directly applicable to private actors
1. Concept
2. The Urbaser v Argentina award
a) Direct obligations in human rights law
b) Mechanics of integrating external obligations
c) A desire for direct obligations
3. The Aven v Costa Rica award
4. Critique
II. Diverting international obligations of states
1. Concept
2. IIAs and reform suggestions
3. Critique
III. Converting legally non-binding standards
1. Concept
2. IIAs and reform suggestions
3. Critique
IV. Elevating domestic investor obligations to international investor obligations
1. Concept
2. The Al-Warraq v Indonesia award
3. IIAs and reform suggestions
4. Critique
V. Creating direct obligations de novo
1. Concept
2. The Al-Warraq v Indonesia award
3. IIAs and reform suggestions
4. Critique
VI. Applying domestic obligations in investment arbitration
1. Concept
2. The Perenco v Ecuador and Burlington v Ecuador awards
3. Investment arbitration’s internationalising effect
a) Joint application with international law
b) Interpretation by an investment tribunal
c) International enforcement
4. Critique
VII. A nascent doctrine of direct obligations
1. Emerging direct obligations from plural sources
2. Construction as directly applicable norms
a) Limitations of investor rights’ scope?
b) Inter-state obligations?
(1) Obligations of the host state
(2) Obligations of the home state
3. Direct obligations owed to whom?
4. Investor rights as challenges for direct obligations
a) Human rights of the investor
b) MFN- and national treatment rights of the investor
119–147
Chapter 4. International Enforcement Through Counterclaims
119–147
Details
I. The discovery of counterclaims for a new purpose
II. Lenient jurisdiction and admissibility requirements
1. Consent by the disputing parties
2. Jurisdiction ratione personae
a) Approaches which focus on the wording
b) Jurisdiction for counterclaims ‘ipso-facto’
c) A holistic interpretive approach
3. Jurisdiction ratione materiae for public interest-related matters
4. Jurisdiction ratione materiae for domestic public law
5. Direct relation to the primary claim’s subject matter
III. Counterclaims’ relevance for extraterritorial enforcement
IV. Obstacles to primary claims by host states against foreign investors
1. Lacking investor consent
2. Indirect ways of acquiring investors’ consent
3. Legal fictions of investor consent
4. Primary claims before international investment courts?
148–149
Chapter 5. Interim Conclusion: The Dawn of Direct Obligations
148–149
Details
150–150
Part II Indirect Obligations
150–150
Details
151–163
Chapter 6. Indirect Obligations as a Concept
151–163
Details
I. Definition
II. Partially compulsory norms
III. Turning the public interest into a self-interest
IV. International character
V. Loss of procedural or substantive rights
VI. Norms with dual character
VII. Analytical potential
VIII. Lacking tradition
IX. A new doctrinal category in a developing field
164–253
Chapter 7. Indirect Obligations in Investment Law Practice
164–253
Details
I. Arbitration’s jurisdiction and admissibility requirements
1. Contribution to the host state’s development
a) The Salini jurisprudence
b) Contribution to development as an indirect obligation
c) Vague content of the obligation
(1) The economy as a public good
(2) Other forms of the public interest
2. Compliance with host state’s domestic law before admission
a) Compliance as a jurisdiction requirement
b) Compliance as an established indirect obligation
c) Content of the obligation
3. Compliance with international law
a) New IIA clauses with indirect obligations
b) Ordre public international as an indirect obligation
c) Fundamental rules of human rights protection as indirect obligations
4. Interim conclusion
II. Substantive requirements of investor rights
1. Investors’ legitimate expectations
a) Relevant requirements of investor rights
b) Consideration of investor misconduct
c) A lacking character as an indirect obligation
2. Proportionality
a) The proportionality principle in investment law
b) Consideration of investor misconduct
c) A lacking character as an indirect obligation
3. Interpreting rights in the light of soft law
a) Soft law as interpretive standards
b) Consideration of investor misconduct
c) Soft law as a potential indirect obligation
4. Interpreting rights in the light of other host state obligations
a) Art 31 (1) and (3) (c) VCLT
b) Consideration of investor misconduct
c) Specific state obligations as indirect obligations
5. Compliance with host state’s domestic law after admission
a) Compliance as a substantive requirement
b) Compliance as an established indirect obligation
c) Content of the obligation
6. Interim conclusion
III. Rules on compensation
1. Qualitative methodology of calculating compensation
a) Rules on calculation
b) Indirect obligations in new IIA clauses
c) Consideration of investor misconduct in arbitral awards
2. Contributory negligence
a) Foundations of contributory negligence
b) MTD v Chile and the environment
c) Yukos v Russia and the rule of law
d) Copper Mesa v Ecuador and human rights
e) Bear Creek v Peru and indigenous peoples
(1) The Tribunal’s award
(2) Sands’ Partial Dissenting Opinion
3. Interim conclusion
IV. The clean hands doctrine
1. The clean hands doctrine as a general principle of law
2. Clean hands as a suggested indirect obligation
3. Redundancy of the clean hands doctrine
254–256
Chapter 8. Interim Conclusion: Established Indirect Obligations
254–256
Details
257–257
Part III Common Implications
257–257
Details
258–275
Chapter 9. The Internal Perspective: Rebalancing Investment Law
258–275
Details
I. One common development towards symmetry
II. Rebalancing investment law from within
1. Strengthening the public interest
2. Reinterpretation and new treaty designs
3. A changing role of investors
III. Sustainable investment law
1. The concept of sustainable development
2. The original purpose to increase investment volume
3. Towards attracting sustainable investment
IV. Interactions with host states’ right to regulate
1. Complementary reform options
2. Strengthening the right to regulate
3. Limiting the right to regulate
276–291
Chapter 10. The Regulatory Perspective: Steering Investors
276–291
Details
I. Considering international regulation of foreign investment
II. Relevant regulatory strategies
1. Command-and-control
2. Incentives
III. IIAs as limited command-and-control regulation
1. Binding international public interest standards
2. Reactive enforcement
IV. IIAs as promising incentive-based regulation
1. Investment protection’s economic value
2. Investment protection as obligations’ leverage
3. Steering investors’ behaviour
4. Compensating for the unwilling or unable host state
5. Limits and potentials
292–312
Chapter 11. The Theoretical Perspective: Individuals in International Law
292–312
Details
I. Construing international responsibility of foreign investors
1. The concept of international responsibility
2. Individual investor responsibility
3. Shared responsibility between states and investors
II. Responsibility as an aspect of Global Administrative Law
1. The idea of Global Administrative Law
2. Investor obligations as part of global administrative space
3. Following administrative law functions and principles
III. Individual responsibility as a fundamental value?
1. The idea of individual international law
2. Investor obligations as individual international law
3. More pragmatic, less value-oriented
313–324
Chapter 12. Conclusion: Towards an International Responsibility of Investors
313–324
Details
I. The dawn of direct obligations (Part I)
II. The presence of indirect obligations (Part II)
III. Common implications (Part III)
1. Rebalancing investment law
2. Regulating investment based on incentives
3. A case study for the individual’s role in international law
IV. Outlook
325–330
Table of International Treaties
325–330
Details
331–334
Table of Declarations and Documents of International Organisations
331–334
Details
335–346
Table of Cases
335–346
Details
International Arbitrations
International Courts and Tribunals
Permanent Court of International Justice and International Court of Justice
International Criminal Tribunals
International Tribunal for the Law of the Sea
WTO Dispute Settlement Body
UN Human Rights Committee
European Court of Human Rights
Court of Justice of the European Union
Inter-American Court of Human Rights
Domestic Courts
347–373
Bibliography
347–373
Details
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International Investor Obligations , page 254 - 256
Chapter 8. Interim Conclusion: Established Indirect Obligations
Autoren
Patrick Abel
DOI
doi.org/10.5771/9783748933175-254
ISBN print: 978-3-8487-8981-8
ISBN online: 978-3-7489-3317-5
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