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  • Series: Frankfurt Investment and Economic Law series x
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Edited by Stephan W. Schill, Christian J. Tams and Rainer Hofmann

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Stephan W. Schill, Christian J. Tams and Rainer Hofmann

This chapter provides a critical introduction into the state of the art of historical approaches to international investment law. Reviewing the status quo, it traces the use of historical arguments in investor-state dispute settlement and provides an overview of the existing, historically informed scholarship in the field. The chapter then focuses on the blindspots in the historical analysis of international investment law and sketches out how a fuller and more reflective engagement with, and use of, the historical method could benefit the field. To illustrate the potential of historical approaches, the chapter then situates the different contributions to the present book. It concludes by suggesting that historical approaches to international investment law could not only enrich this specialized field of international law, but also stimulate, more generally, the interest of international legal historiography in international economic law and the economic foundations of international law.

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Andreas Kulick

Telling the history of something requires choosing a perspective. This perspective is the lens through which we look at a specific topic or field. Thus, one cannot but present such history from certain perspectives. Once accounts of events, facts or material are being presented from a certain perspective, they turn into narratives. This chapter seeks to illustrate how certain stakeholders in the investment community present certain narratives of the history of international investment law, asserting – sometimes deliberately, sometimes inadvertently – the narratives’ objectivity and thereby shaping certain perceptions of the history according to their view on the present and future of the field. Insights from historiography, the philosophy of language and modern linguistics inform such inquiry. It is the chapter’s aim to demonstrate how certain epistemic communities employ such narratives and thereby to enhance investment law scholars’ and practitioners’ awareness vis-à-vis the constructive character of these narratives.

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Jason Webb Yackee

The use of history in international investment law (IIL) scholarship is a work in progress. IIL scholarship already relies on history to a significant extent, but IIL scholarship can also ‘do’ history better than it currently does. IIL scholarship’s use of history sometimes seems methodologically unselfconscious and incomplete. To improve, historically minded IIL scholars need to have a better sense of the issues, both epistemological and practical, that professional historians wrestle with, and they need to be more comfortable engaging in the sine qua non of the modern historical method – the use of primary-source (and typically archival) materials to illuminate both how IIL was understood and experienced in earlier eras and how those earlier conceptions and applications of IIL may or may not remain relevant today.

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Heather L. Bray

This chapter uses historical research as a way to understand and explain institutional change in international dispute settlement bodies over time. The chapter’s argument is that investment treaty arbitration, which is often conceptualized in the literature as a modern post-World War II development, is not a radical departure from earlier mechanisms for resolving international claims against states for mistreatment of foreign investors but rather is a natural continuation or evolution from earlier models such as international claims commissions. Using five criteria – the origin of the dispute, the status of the individual, the role of peace, the quantity and method for processing claims, and the composition of the decision makers – the chapter charts an evolutionary pathway between international claims commissions and investment treaty arbitration and show an organic transformation between these two dispute settlement models.

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Kate Miles

This chapter considers methodological questions on the role of historical research in international law. In particular, it examines the adoption of a historical approach as an instrument of critique so as to create new understandings of historical periods and to illuminate the condition of modern international law. This approach is applied to investment law, examining early mechanisms of international law in the protection of property. In exploring this use of mechanisms as a repeated process, the chapter examines the writings of Vitoria, Grotius, and Vattel. It argues that there is a long history of designing new mechanisms to protect foreign investment, so that each one constitutes not a major change of direction or rupture, but a 'usual' change – and that this is also the case for international investment law in the 20th and 21st centuries.

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Jörg Kammerhofer

This chapter highlights, from a legal theoretical perspective, both the risks and the potential benefits of instrumentalizing the history and historiography of law in international investment law. Investment law scholars should study their field’s theoretical foundations and historical bases, but should take care not to fall into the trap of abusing history and historiography in legal argumentation. The chapter first discusses the dangers of instrumentalizing history, using critical legal historians’ ideologization of investment law as an example. It then points to the potential usefulness of one form of historical research – the histories of legal doctrines (Dogmengeschichte), which helps us to see that the historical lineage of customary investment law is in considerable doubt.

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Mona Pinchis-Paulsen

This book chapter presents three methodological challenges stemming from archival research. The chapter reflects upon these challenges and provides solutions based upon personal experiences with legal historical analysis into the ‘fair and equitable treatment’ (FET) clause, found today in most international investment agreements. The chapter proceeds in four parts. Part one discusses the first challenge, which refers to whether historical research can or should be divided into explicit time periods, also known as periodization. Part two examines the second challenge: defining the subject matter of the historical research, and deciding whether international legal history should exclusively focus on law by studying the history of rules and concepts, or whether to look at law in context, studying its practice, and at how legal institutions work. Part three examines the issue of anachronism in legal historical methodology, meaning whether to read the past with knowledge of the present. Part four concludes.

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Jean Ho

This chapter relies on original archival research to inform the evolution of contractual protection in international law. Before investment treaties emerged as instruments of contractual protection, investors sought diplomatic protection from their home states in contractual disputes with host states. At first glance, the shift from diplomatic protection to treaty protection in contractual disputes between investors and states, and the different considerations each entails, discounts the contemporary relevance of historical findings. However, despite significant changes over time in the mode of securing contractual protection, reservation towards the characterisation of simple contractual breaches by states, such as non-payment, as violations of international law remains. This chapter suggests that the scepticism exhibited by modern-day adjudicators towards the capacity of open-textured investment treaty provisions to equate simple contractual breaches with violations of international law, is a product of the historical reluctance of states to endorse this equation.

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Yuliya Chernykh

The chapter casts light on the unknown role of Sir Elihu Lauterpacht in drafting the Abs-Shawcross Draft Convention on Investments Abroad in 1958–1959. Although the document never came into force, it was at the time of its drafting one of the most mature and influential attempts to codify international investment law. In addition to a thorough restatement of existing principles of international law on protection of aliens, the Draft Convention introduced novel machinery into the procedures of dispute resolution. An individual’s direct access to remedies outside the scope of diplomatic protection, albeit subject to a state’s additional consent, became an important transitional step towards investor-state dispute settlement (ISDS), as we presently know it. The chapter is based on unique materials obtained from the private archive of Sir Elihu Lauterpacht, which demonstrate his role in drafting and shaping the most vital and valuable part of the Abs-Shawcross Draft Convention on Investments Abroad, namely its dispute resolution provisions.