THE IMPACT OF INVESTMENT TREATIS ON CONTRACTS BETWEEN HOST STATES AND FOREEIGN INVESTOSPDF电子书下载

Introduction 1

From the Protection of Foreign Property to Global Economic Governance 1

The Contracts between Host States and Foreign Investors as Instruments of Investment Protection 7

The Modern Interrelationship between Treaties and Contracts in Investment Treaty Arbitration 9

The Research Methodology and the Structure of the Work 13

1. Contracts Between Host States and Foreign Investors in the Absence of International Investment Treaties 15

A. The Existence and Characteristics of State Contracts 15

Ⅰ. The Notion of State Contract and Its Legal Nature 15

Ⅱ. Traditional and Modern Forms of State Contracts 17

1. Traditional Forms 17

2. Modern Forms 19

a. Modern Concession Agreements 20

b. Production Sharing Agreements 21

c. Management Agreements/Technical Assistance Agreement/Service Contracts 21

d. Turnkey Contracts 22

e. Joint Venture Agreements 22

f. Licensing and Transfer of Technology Agreements 23

g. Build, Operate and Transfer Agreements(BOT Agreements) 24

Ⅲ. Conclusion 24

B. The Theories of Internationalisation 25

Ⅰ. Introduction 25

Ⅱ. Direct Internationalisation 29

1. State Contracts as International Law/Per Se Application 29

2. Genuine Legal Orders 30

3. Customary International Law and Incorporation of International Law 33

Ⅲ. Indirect Internationalisation 34

1. The Origin of the Principle of Party Autonomy 35

2. The Restrictions to the Principle of Party Autonomy 37

a. The Content and General Limitations of the Principle of Party Autonomy 37

b. The Participation of the State as a Sovereign 39

3. Express Choice of Law by the Parties to the Dispute 41

a. The Choice of a Genuine or Non-National Legal Order 41

b. The Choice of Public International Law 44

c. The Choice of the Host State's Internal Law 47

4. Implied Choice 48

Ⅳ. Conclusion 50

2. The Regime Established by Investment Treaties 51

A. Stocktaking: The Worldwide Network of Bilateral and Multilateral Investment Treaties 51

Ⅰ. The Evolution of the Investment Treaty Network 51

Ⅱ. The Reasons for the Emergence of Investment Treaties 52

Ⅲ. The Present Existence of a Worldwide Network of Investment Treaties 54

Ⅳ. The Creation of Customary International Law through Investment Treaties 55

B. The Consent to Investment Arbitration in Investment Treaties 57

Ⅰ. Three Methods of Establishing Consent in International Investment Arbitration 57

Ⅱ. Range of Choices 62

1. International Centre for the Settlement of Investment Disputes (ICSID) 62

2. ICSID Additional Facility 63

3. International Chamber of Commerce (ICC) 64

4. UNCITRAL/AAA/LCIA/SCC Institute 65

Ⅲ. The Treaty's Dispute Resolution Clause 65

1. The Scope of the Host State's Consent 65

a. Unqualified Access to International Arbitration 66

b. Qualified Access to International Arbitration 66

2. The Scope of a Broadly Phrased Dispute Resolution Clause 68

a. Arbitral Practice 68

b. Discussion of the Contradicting Approaches 73

c. Conclusion 81

C. The Legal Effects of the International Investment Treaty Regime 81

Ⅰ. Conferral of Rights upon the Private Individual 81

1. The "Derivative" Model 82

2. The "Direct" Theory 85

3. Examination of the Contradicting Approaches 87

a. Wording of the Substantive Provisions 87

b. Direct Access to International Dispute Settlement 88

c. Comparison with the Systemic Features of Diplomatic Protection 89

d. Waiver of Diplomatic Protection 93

e. Difference between State—State Proceedings and Diplomatic Protection 94

f. Conclusion 95

Ⅱ. Consequences of a Treaty Breach: State Responsibility and the Investment Treaty Regime 95

1. The General System of State Responsibility and Sub-Systems of State Responsibility 96

a. Consequences of Breach under the General System of State Responsibility 96

b. Sub-Systems of State Responsibility 97

2. The Investment Treaty Regime as a Sub-System 98

a. The Differences between the Investment Treaty System and the General System 98

b. Relationship to General Rules of State Responsibility 100

3. Special Consequences under the Investment Treaty Regime 102

Ⅲ. The Application of International Law in International Arbitration over Contracts between Host States and Foreign Investors 103

1. General 103

2. Application of International Law due to Direct Choice by Treaty 104

a. The Source of the Choice of Law Rule 104

b. The Direct Choice by Treaty 105

3. Indirect Choice of International Law by Treaties 107

a. Framework of Arbitral Rules 107

b. Investment Treaties as International Law 108

4. The Role of Domestic Law 110

a. Necessity of the Application of Domestic Law 110

b. The Relationship between Domestic Law and International Law 111

c. The Contractual Choice of Domestic Law 114

D. The Notion of"Investment" and Contracts Between Foreign Investor and Host State 115

Ⅰ. The Specific Regulations concerning Contracts 116

1. Exclusion of Contractual Contents 117

2. Limited Protection of Contractual Contents 118

3. Full Protection of Contractual Contents 119

Ⅱ. Contracts and Contractual Contents as"Investment" under the ICSID Convention 124

1. Substantial Contributions 125

2. Duration 128

3. Risk-Assumption/Return of Gains or Profit 131

4. Significant Contribution to Economic Development 134

5. Investment Treaties as Lex Specialis 137

Ⅲ. Conclusion 138

E. Investment Treaties and Sub-State Entities as Parties to Contracts 138

Ⅰ. Sub-State Entities as Contractual Partner under General International Law 139

1. General Aspects 139

2. Attribution of Conduct to the State 140

Ⅱ. Investment Treaty Arbitration and Attribution of Conduct of Sub-State Entities 148

1. Attribution of Conduct under International Law 149

2. Determination of the Parties to a Contractual Dispute 155

Ⅲ. Special Regimes of Attribution of Particular Investment Treaties 156

1. Articles 22 and 23 of the ECT 157

2. Article 2(2) of the 2004 US Model BIT 158

Ⅳ. Conclusion 159

3. The Substantive Coverage of Contracts Between Host States and Foreign Investors Through Investment Treaty Standards 160

A. The Distinction between Treaty Claims and Contract Claims 160

Ⅰ. Conceptual Distinction 160

Ⅱ. Relevance of the Distinctions 162

Ⅲ. The Evolution of Arbitral Case Law 163

1. The Authoritative Annulment Decision in Vivendi—Analytical Separation and the Principle of Coincidence 163

2. The Prima Facie Approach for Jurisdictional Purposes 167

a. Competence/Competence ofInternational Arbitral Tribunals 167

b. Determination of Jurisdiction 168

Ⅳ. The Fundamental Differences between Contract Claims and Treaty Claims 173

1. The Nature of Investment Treaties and the Consequent Distinction between International Commercial Arbitration and Investment Arbitration 173

2. The Distinction between Commercial and Governmental Conduct 177

B. The Substantive Protection Standards of Investment Treaties and Their Coverage of State Contracts 179

Ⅰ. Expropriation 179

1. Expropriation under Customary International Law 179

2. Expropriation of Contracts under Customary International Law 181

3. Expropriation of Contracts under the Regime of Investment Treaties 187

a. Coverage of State Contracts 187

b. Distinction between Breach of Contract and Expropriation 189

c. Findings of an Expropriation of State Contract 192

d. Conclusion 196

Ⅱ. The Fair and Equitable Treatment Standard 197

1. General Considerations 197

a. Origins of the Standard 197

b. Fair and Equitable Treatment and the International Minimum Standard 199

c. Specifications of the Content 201

2. The Coverage of State Contracts 204

a. Legitimate Expectations 204

b. Failure to Provide a Stable Framework for the Investment and Other Violations of the Standard 211

3. Conclusion 214

Ⅲ. Further Standards 215

1. Non-Discrimination 215

2. Full Protection and Security 216

Ⅳ. Concluding Remarks 216

1. The Dogma of the Governmental—Commercial Distinction 216

2. The Difference between the Fair and Equitable Treatment Standard and the Non-ExpropriationStandard 219

3. The Broad Discretion of Arbitrators 220

4. The Umbrella Clause 221

A. General Considerations 221

B. History and Contemporary Use of the Clause 223

Ⅰ. Historical Analysis 223

1. Anglo-Iranian Oil Company 223

2. The Abs-Shawcross Draft Convention on Investments Abroad 225

3. OECD Draft Convention on the Protection of Foreign Property 1967 227

Ⅱ. Contemporary Occurrence and Use of the Clause 228

1. Occurrence at Present 229

2. Multilateral Agreements 230

3. Differences in the Clauses' Wordings 231

a. Mandatory Language 231

b. Scope of Obligations 232

c. Structure 233

d. Requisitions of the Wording 233

C. The Effect of the Clause 235

Ⅰ. The Narrow Interpretation or Rejection of an Elevating Effect 235

Ⅱ. The Elevating Effect 238

Ⅲ. Distinction between Commercial and Non-Commercial Conduct 243

D. The Central Controversial Aspects 245

Ⅰ. The Wording of the Clause 245

1. Narrow Interpretation 245

2. Broad Interpretation 247

3. Conclusion 250

Ⅱ. The Implications of the Purpose of Investment Treaties 252

1. In Dubio Mitius 252

2. Effective Interpretation 254

Ⅲ. The Consequences of a Broad Interpretation 256

1. The Narrow Approach 256

2. The Middle Approach 259

3. The Broad Approach 261

Ⅳ. The Location of the Clause 265

Ⅴ. Alternative Functions of the Clause 267

E. Resolution of Central Aspects 269

Ⅰ. Threshold of Elevation 270

Ⅱ. Manner of Elevation 273

Ⅲ. The Contracts Covered 275

5. The Relationship of Parallel Treaty-Based International Arbitral Proceedings and Contract-Based Domestic Court Proceedings in Investment Treaty Disputes 277

A. Conflicting Jurisdictions under International Investment Treaties and Contracts between a Foreign Investor and a Host State 277

Ⅰ. Jurisdictional Conflicts in Investment Treaty Law 278

1. Generation and Risks of Parallel and Multiple Proceedings 278

2. Contract-Related Parallel Proceedings:"Asymmetrical" and "Symmetrical"Conflicts 284

3. Traditional Means of Jurisdictional Conflict Resolution and Their Effect under the Investment Treaty Regime 285

a. The Exhaustion of Local Remedies Rule 286

b. The Principles of Litis Pendens and Res Judicata 288

Ⅱ. Treaty Provisions on the Avoidance of Parallel Proceedings 290

1. The "Fork in the Road Clause" 290

2. Prior Recourse to State Courts for a Fixed Period of Time 293

3. Alternative Proposals on Jurisdictional Conflict Mitigation 296

a. Article 1121 of the NAFTA 296

b. Article 26 of the ICSID Convention 298

c. Transaction-Based Approaches and Dispute-Based Approaches 300

B. The Relationship between International Treaty Proceedings and Domestic Contract Proceedings 301

Ⅰ. General Considerations 301

Ⅱ. Prevalence of International Tribunals in Asymmetrical Conflicts 303

1. The Superior Status of International Tribunals 303

2. The Primacy or "Independency" of International Investment Tribunals 305

Ⅲ. The Impact of the Contractual Dispute Resolution Clause on Symmetrical Conflicts 309

1. Traditional Forms—The Calvo Clause 310

2. The Interpretation in Modern Investment Arbitration 313

3. The Different Views and Their Resolution 320

a. Waiver of Right to Treaty Protection 320

b. The Effects of a Contractual Dispute Resolution Clause 323

Ⅳ. Conclusion 331

Final Conclusion 332

Bibliography 337

Index 361