International Investment Law and Soft Law

International Investment Law and Soft Law

Edited by Andrea K. Bjorklund and August Reinisch

This important book examines the development of soft law instruments in international investment law and the feasibility of a ‘codification’ of the present state of this field of international economic law.

Chapter 2: Sources of International Investment Law

Moshe Hirsch

Subjects: law - academic, international economic law, trade law, international investment law


Moshe Hirsch The point of departure for a discussion on sources of investment law is the recognized list of sources of general international law according to Article 38 of the Statute of the International Court of Justice (ICJ).1 It is noteworthy, however, that not all rules of public international law are relevant to relationships between host states and foreign investors.2 This chapter emphasizes the distinctive features of the sources of international investment law and briefly discusses the interactions between non-binding instruments (‘soft law’) and the recognized sources of investment law. Soft law rules are not legally binding and legal decision-makers have discretion whether to apply them to a particular dispute or not. Though not mandatory, these norms often influence investment arbitrators. As elaborated below, the recognized sources included in Article 38 interact This approach was also undertaken by the Report of the Executive Directors on the ICSID Convention. The Report provides as follows: ‘40. . . . The term ‘‘international law’’ as used in this context should be understood in the sense given to it by Article 38(1) of the Statute of the International Court of Justice, allowance being made for the fact that Article 38 was designed to apply to interState disputes.’ ICSID, ‘Report of the Executive Directors on the Convention’ (ICSID 2006) ; see also Inceysa Vallisoletana S.L. v Republic of El Salvador, Award of 2 August 2006, ICSID Case No ARB/03/26, para 225 ; Methanex v United...

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