The Last Citadel! Can a State Claim the Status of Persistent Objector to Prevent the Application of a Rule of Customary International Law in Investor-State Arbitration?
Leiden Journal of International Law, Vol. 23, No. 2, pp. 379-400, 2010
22 Pages Posted: 3 May 2010
Date Written: April 29, 2009
Like all rules of customary international law those existing in the field of international investment law are binding upon all States. According to the theory of the persistent objector, however, a State is not bound by a rule if it objected to it in the early stages of its formation and continued to do so consistently thereafter. This paper analyses the different grounds of criticisms that have been raised against the concept. We found that there is only very weak judicial recognition of the concept, that there is no actual State practice supporting it and that it is logically incoherent. Specifically, this paper argues that the concept should not be successfully used in investor-State arbitration proceedings to prevent the application of a custom rule by an arbitral tribunal. This is essentially because of the great importance of the only few custom rules existing in that field and the fact that they represent universally-recognised values.
Keywords: Customary international law, Persistent objector, arbitration, International investment law, ICSID
JEL Classification: K33
Suggested Citation: Suggested Citation
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By Ivars Mekons