International Customary Investment Law: Story of a Paradox

SOURCES OF TRANSNATIONAL INVESTMENT LAW, E. de Brabandere and T. Gazzini, eds., Martinus Nijhoff, 2012

Amsterdam Law School Research Paper No. 2011-19

Amsterdam Center for International Law No. 2011-08

57 Pages Posted: 25 Aug 2011 Last revised: 16 Sep 2011

Jean d'Aspremont

University of Manchester - School of Law; University of Amsterdam

Date Written: August 25, 2011

Abstract

This chapter zeroes in on customary international law and examines the role played by this specific source of law in the development of international investment law. After a few considerations on the early phase of development of an international investment protection regime and the search for a customary international protection of aliens, this chapter shows how the maturation of investment protection has been achieved through treatification and a move away from customary law. It then turns to the paradox of the theory of the sources of investment law and demonstrates how the completion of treatification through bilateral investment treaties (hereafter BITs) has generated a return to customary international. It subsequently ventures into a few general critical remarks about the rebirth of customary international law from the standpoint of the theory of the sources of international law.

Keywords: Investment law, theory of the sources of international law, customary law, treatification, systemic integration of international law, precedents, jurisprudence constante, international minimum standard, stare decisis, fair and equitable treatment, expropriation, standards of compensation

JEL Classification: K33

Suggested Citation

d'Aspremont, Jean, International Customary Investment Law: Story of a Paradox (August 25, 2011). SOURCES OF TRANSNATIONAL INVESTMENT LAW, E. de Brabandere and T. Gazzini, eds., Martinus Nijhoff, 2012 ; Amsterdam Law School Research Paper No. 2011-19; Amsterdam Center for International Law No. 2011-08 . Available at SSRN: https://ssrn.com/abstract=1916713

Jean D'Aspremont (Contact Author)

University of Manchester - School of Law ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom

HOME PAGE: http://www.manchester.ac.uk/research/Jean.daspremont/

University of Amsterdam ( email )

Amsterdam Centre for International Law
P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

HOME PAGE: http://home.medewerker.uva.nl/j.daspremont/

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