Edited by Andrea K. Bjorklund and August Reinisch
Chapter 2: Sources of International Investment Law
2. Sources of 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 States, Final Award of 3...
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