《STATE LIABILITY IN INVESTMENT TREATY ARBITRATION GLOBAL CONSTITUTIONAL AND ADMINISTRATIVE LAW IN TH》PDF下载

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  • 作  者:SANTIAGO MONTT
  • 出 版 社:OXFORD AND PORTLAND,OREGON
  • 出版年份:2012
  • ISBN:1849462135
  • 页数:416 页
图书介绍:

Introduction 1

First Part: A Framework of Analysis 29

Chapter 1: The Latin American Position on State Responsibility. Looking into the Past for Lessons on the Future 31

Introduction: The Latin American Struggle against Diplomatic Protection 31

Ⅰ The Calvo Doctrine and Clause: Two Nineteenth Century Anti-Diplomatic Protection Institutions 35

A The Practice of Diplomatic Protection in the Nineteenth Century 36

B The Calvo Doctrine 38

C The Calvo Clause 45

Ⅱ The End of Gunboat Diplomacy 48

Ⅲ From the Calvo Doctrine to Expropriation Without Compensation 55

Ⅳ International Minimum Standards Strike Back 62

Ⅴ Updating the Calvo Doctrine in the BIT Generation 74

Conclusions: Building a Normative Stance Based on Equality 80

Chapter 2: The BIT Generation’s Emergence as a Collective Action Problem. Prisoner’s Dilemma or Network Effects? 83

Introduction: Why Do Developing Countries Sign BITs? 83

Ⅰ The BIT Generation as a Prisoner’s Dilemma 87

Ⅱ Weak Competition and Network Effects 90

Ⅲ A Formal Model of the BIT Generation as a Virtual Network 96

Ⅳ Evidence of the BIT Generation as a Virtual Network 104

A Five Structural Arguments 104

B Positive Externalities of the BIT System 112

V Providing answers for critical questions 115

Conclusions. Normative Implications of the Virtual Network Theory of the BIT Generation 122

Chapter 3: Trading Off Sovereignty for Credibility: Questions of Legitimacy in the BIT Generation 125

Introduction: Legitimacy in International Investment Law 125

Ⅰ The Legitimacy Problem: Ad Hoc International Arbitral Tribunals Discharging a Preservationist Constitutional Function 128

A International Law as Governance 129

B Governing with Judges 133

C Ad Hoc International Arbitral Tribunals Discharging a Preservationist Constitutional Function 135

Ⅱ Assessing Potential Sources of Legitimacy 141

A Consent Legitimacy 141

B Output Legitimacy 144

C Exit Legitimacy 145

D Rule of Law Legitimacy 146

E Institution-Building Legitimacy 154

Ⅲ Diversifying Risks in the BIT Lottery: Why an Appellate Body or an International Investment Court is Not the Solution 155

Conclusions: Future of the BIT Generation 159

Second Part: An Assessment of the Present State of Investment Treaty Arbitration Jurisprudence 163

Chapter 4: Property Rights v The Public Interests: A Comparative Approach to a Global Puzzle 165

Introduction: Risks and Benefits of Building a Comparative Patchwork 165

Ⅰ Understanding the Intertwined Relationship of PropertyRights and Regulation 168

Ⅱ The Core v The Public Interest: Hopeless Attempts to Escape Fully from Balancing 177

A Property Rights-at-the-Core as Fundamental Rights 177

B The Gateway Question of the Core 184

C the Denominator Problem and Conceptual Severance 188

D Termination of Property Rights without Compensation 191

Ⅲ The Periphery v the Public Interest: The Muddied Waters of Complex Balancing 198

A The Protection of Property Rights’ Periphery: Expropriations and Responsabilite de l’Etat 199

B Arbitrariness as Illegality 200

C Arbitrariness as Irrationality 206

D Arbitrariness as Special Sacrifice 213

E Arbitrariness as Lack of Proportionality (stricto sensu) 216

F Legitimate Expectations 222

Conclusions. Three Lessons from Comparative Law for International Investment Law 227

Chapter 5. Investments, Indirect Expropriations and the Regulatory State 231

Introduction: Why is Recognsing Indirect Takings So Difficult? 231

Ⅰ Investments and Indirect Expropriations as GlobalConstitutional Law: New Limits for States’ Police Powers 236

A The Investment-Expropriation Relationship in InvestmentTreaties as a Global Constitutional Law Problem 237

B A ‘Patterning Definition’ Approach to the Concept of Investment 243

C Does the Definition of Investment Play a Substantive Role? 251

Ⅱ The Rule of Thumb: Indirect Expropriations as Total or Substantial Deprivations 253

A The ‘Sole Effects’ Doctrine in Indirect Expropriations: Total or Substantial Deprivations 254

B What is Substantial Deprivation? 261

C The Denominator Problem in Investment Treaty Disputes 265

Ⅲ Are There Total or Substantial Deprivations That Do Not Qualify as Expropriations? 273

A Exceptions Ⅰ: Termination of Investment in Accordance with the Law 274

B Exceptions Ⅱ: Pre-eminent Public Interests 277

C Counter-Exceptions: Arbitrariness and Fair and Equitable Treatment Considerations in Expropriation Claims 281

Conclusions: Fearing Ad Hocism More than an Excessively Extensive Concept of Expropriations 288

Chapter 6: Controlling Arbitrariness through the Fair and Equitable Standard 293

Introduction: Arbitrariness in International Investment Law 293

Ⅰ The Current Debate in International Investment Law: The Alleged Autonomous Character of the FET Standard 298

A The Challenge of the FET Standard: Defining a New Standard of Review 299

B A New Standard Under Traditional Methods: FET and Treaty Interpretation under Articles 31 and 32 of the Vienna Convention 303

C IMS as a Methodological Constraint over Arbitral Tribunals 307

Ⅱ A General Framework of Analysis: Finding the Essential Dimensions of a GAL Approach to the FET Standard 310

Ⅲ The First Dimension of the GAL Approach to the FET Standard: The Legal System Falling Below IMS as the Basis of International Wrongfulness 318

Ⅳ The Second Dimension of the GAL Approach to the FET Standard: Domestic Illegalities as the Basis of International Wrongful Acts 323

A The Non-Courts of Appeal Doctrine 324

B Extent of Domestic Judicial Review 326

i First Option: Remanding Cases to Domestic Courts: The Rebirth of the Local Remedies Rule 327

ii Second Option: Reviewing Illegality, Irrationality, Special Sacrifice, and Lack of Proportionality in Accordance with Domestic Law 329

iii Third Option: Reviewing Only Illegality in Accordance with Domestic Law 330

C Standards of Review of Questions of Law 332

i First Option: Transposing Denial of Justice Age Standards to the BIT Generation: The ‘Manifestly Unjust’ Standard 333

ii Second Option: Municipal Law as Facts: De Novo Review 334

iii Third Option: The Same Level of Deference That Is Generally Applied by Domestic Courts 337

D The ‘Something More’ Doctrine 338

Ⅴ The Third Dimension of the GAL Approach to the FET Standard: Arbitrariness and the Control of Discretionary Powers 342

A The Perils of Process-Based Heightened Scrutiny and Object and Purpose Interpretation 343

B Due Process: Administrative Denial of Justice 348

C Arbitrariness as Irrationality 351

i Ends and Legitimate State Interests 351

ii Means and Their Relationship to Ends 354

D Arbitrariness as Special Sacrifice and Lack of Proportionality (Stricto Sensu) 355

E Legitimate Expectations 359

i Without Assurances 360

ii With Assurances 362

Conclusions: The Horizontal and Vertical Constraints on the FET Standard 366

Conclusions: Future of the BIT Generation: For a Global Legal Order Committed to the Rule of Law and Human Welfare 369

Bibliography 375

Index 405