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Arnaud de Nanteuil

This chapter explores the recent European projects of reform of investor-State dispute settlement (ISDS), in particular through the establishment of a permanent court to replace arbitral tribunals. It argues that these different reforms introduce important procedural changes which all have in common to take a better consideration of the interests of the people. This is so by a closer association of civil society in the conception of EU FTAs, by the introduction of provisions securing the States’ right to regulate, and by improving transparency and judicial independence. Accordingly, it is argued that these projects participate in a ‘democratization’ process of dispute settlement in international law and, more generally, to a democratization of international law in a quite innovative manner.

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Arnaud de Nanteuil

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Arnaud de Nanteuil

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Arnaud de Nanteuil

This chapter explores the emergence of international investment law, by describing first the traditional rules and mechanisms that were used international law to protect foreign assets. Yet, the weaknesses of the latter have led the stakeholders to conclude ‘State contracts’ which introduced international law as the relevant set of rules applicable to the investment relationship and arbitration as the main mechanism for the settlement of disputes. Then the signature of investment treaties have definitely allowed for the emergence of a new chapter in international law: international investment law, made of substantial rules of protection for foreign investors and a right to resort to arbitration against host States.

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Arnaud de Nanteuil

This chapter explores the domestic sources of international investment law. Indeed, even if the topic is mainly international, domestic sets of rules are still relevant in some respect. This is so first because most State have set up rules regarding foreign investment protection and second because some domestic mechanisms of public liability may prove relevant for the purposes of protecting foreign assets on the territory of a State. This chapter also explores the legal basis for an international arbitral tribunal to apply domestic law. Hence, it is demonstrated that international investment law has somehow a hybrid nature, since it is based both on international and national rules.

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Arnaud de Nanteuil

This chapter describes the international rules of investment law. It thus explores all the classic sources of international law, namely treaties, customary law, general principles of law and case-law. As regards the latter, the legal status of precedents in international investment law is still disputed today but this chapter argues that an equilibrium has been found in practice. Some other sources which are less frequently addressed in international law (unilateral acts and academic writings) are also described and the specificity of their role in investment law is highlighted.

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Arnaud de Nanteuil

This chapter explores the relationship between the different sets of rules that may be relevant in an investment relationship, namely: domestic law; international law; and contracts. All the three of them indeed provide rules that are applicable in an investor-State relationship but questions are quite different in nature and in scope: the relationship between international and domestic law indeed raises the question of their respective role and articulation. The contract issue rather raises the issue of the relationship between the contract and a treaty, if any. Hence, the central and complex issue of relation between treaty and contract claim is explored here.

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Arnaud de Nanteuil

This chapter explores the questions surrounding the identification of the investment and the State. The issues are not the same since the identification of the investment is a matter of jurisdiction: there can be no competent arbitral tribunal if there is no investment. Yet, the notion is not precisely defined and this is one of the major difficulties of international investment law. The main trends in treaty practice and in case-law are therefore described. As regards the State, the questions rather fall within the general issue of liability: identifying the State is meant to determine who can be deemed liable and under what conditions. The issue of attribution is core in that respect.

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Arnaud de Nanteuil

This chapter describes the settlement of disputes between investors and States. It focuses both on the institutional aspect (by describing the different institutions that may handle cases) and on procedure. All the steps of an arbitral proceeding are described, from the negotiation at the beginning of the dispute until the enforcement of the award. It covers all the aspects of the whole process, namely the obligation prior to the reference to the arbitral tribunal, preliminary steps (such as provisional measures), the conditions for the referral to the tribunal and the possible recourses against arbitral awards. The issue of counterclaims is also addressed, as well as enforcement and immunity issues.

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Arnaud de Nanteuil

This chapter addresses the question of the exact scope of investment treaty protection provisions. The main issue is whether this protection applies once the investment has been admitted on the territory of the State or if it may apply before this admission. The vast majority of treaties apply after the admission, thus leaving the State complete freedom in determining the conditions under which foreign investment may enter their territory.