The Applicable Law in Foreign Investment Disputes

Andrew T. Guzman

University of California, Berkeley - School of Law

Jan H. Dalhuisen

King's College London

January 30, 2013

Many foreign investment disputes include important disagreements on the question of applicable law. Though treaty text, passed decisions, and academic commentary are all relevant to the question, there remains considerable uncertainty on the question of how a tribunal should decide what law applies. The dominant approach distinguishes situations in which relevant treaty text provides for party autonomy with respect to choice of law (e.g., ICSID) and those in which no such choice of choice is invited (e.g., NAFTA). It is commonly thought that the parties have greater power to choose the applicable law in the former case than in the latter. This article demonstrates that the distinction between these two situations is illusory. The degree of party autonomy is virtually identical in the two situations. The real question for a tribunal is to determine which choices are at the free disposition of the parties and which are, instead mandatory.

Number of Pages in PDF File: 16

Keywords: foreign investment, applicable law

JEL Classification: K33

working papers series

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Date posted: January 30, 2013  

Suggested Citation

Guzman, Andrew T. and Dalhuisen, Jan H., The Applicable Law in Foreign Investment Disputes (January 30, 2013). Available at SSRN: http://ssrn.com/abstract=2209503 or http://dx.doi.org/10.2139/ssrn.2209503

Contact Information

Andrew T. Guzman (Contact Author)
University of California, Berkeley - School of Law ( email )
Boalt Hall
Berkeley, CA 94720-7200
United States
510-642-8074 (Phone)
510-642-3728 (Fax)
HOME PAGE: http://www.andrewguzman.net
Jan H. Dalhuisen
King's College London ( email )
Feedback to SSRN

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