State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority
London School of Economics - Law Department
August 23, 2013
Harvard International Law Journal, Vol. 55, 2014, Forthcoming
The 1990s witnessed the signing of thousands of investment treaties, while the 2000s saw the launch of hundreds of investor-state arbitrations. But a new development is on the horizon that has the potential to reshape our understanding of the field: the re-emergence of state-to-state investment treaty arbitration in cases like Peru v Chile, Italy v Cuba, and Ecuador v United States. This development is highly controversial because it implicates fundamental but unresolved questions about what rights have been given to investors and what rights have been retained by states. This Article argues that state-to-state arbitration provides an important mechanism for treaty parties to re-engage with the investment treaty system. Moreover, based on the co-existence of investor-state and state-to-state arbitration, I develop a hybrid theory about the interdependent nature of investment treaty rights and the shared allocation of interpretive authority.
Number of Pages in PDF File: 57
Keywords: state-to-state arbitration, investor-state arbitration, Peru v Chile, Ecuador v United States, Italy v Cuba, diplomatic protection, interpretive disputes, declaratory relief, Article 27, ICSID, class actionsAccepted Paper Series
Date posted: August 24, 2013 ; Last revised: November 5, 2013
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