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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

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.

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Arnaud de Nanteuil

This chapter describes the two main clauses of protection of foreign investment based on non-discrimination, namely the national treatment and the most-favoured nation clauses. Although they share common features, most of the issues they raise are different enough to justify a separate treatment. The questions of the comparability of situations, the meaning of ‘no-less favourable treatment’ and the scope of both provisions are explored. As regards the most-favoured nation clause in particular, the question of its extension to settlement of disputes (or limitation to substantive provision) is of course addressed.

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Arnaud de Nanteuil

This chapter explores the substantive rules of protection of foreign investment, excluding non-discrimination clauses. It addresses the issue of fair and equitable treatment (including the relationship with the minimum standard of treatment and the content of the protection granted under the banner of FET), expropriation (including the conditions for lawfulness and the specific issue of indirect expropriation), full protection and security (including the question of its exact scope and its relationship with FET), the guarantee of free transfer (including the scope of the guarantee and the issue of currency), the prohibition of performance requirements and the compensation for losses clause. For each provision, the content of the protection granted is described and the remaining questions are mentioned, with some elements of answers where possible.

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Arnaud de Nanteuil

This chapter explores the relationship between, on the one hand, international investment law and, on the other hand, international human rights and environmental law. It argues that the importance of non-economic considerations in investment law is growing and that social and environmental issues can no longer be ignored in investment operations. This evolution is explored both through treaty-making and case-law. The chapter thus tries to identify what the future of investment law may be in consideration of the general objective of sustainable development.

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Arnaud de Nanteuil

This chapter briefly explores the relationships between international investment law and EU law. It focuses first on the ‘intra -EU’ dimension of the issue, which seems to evolve towards a termination of BITs between Member States. The chapter then addresses the external dimension of the matter. The EU is indeed trying to build a common policy regarding foreign investment, including a slight reform of substantive rules of protection and an important change in the dispute settlement mechanism which may replace arbitration in the long run.