Constitutional Law and the Settlement of Investor-State Disputes: Some Interplays

Jalloh, Charles Chernor & Elias, Olufemi. Shielding Humanity - Essays in International Law in Honour of Judge Abdul G. Koroma. Leiden, NL: Brill / Nijhoff. 2015, p. 230-241

17 Pages Posted: 15 Dec 2015

See all articles by Brian McGarry

Brian McGarry

Geneva LL.M. in International Dispute Settlement (MIDS), a joint programme of the Graduate Institute of International and Development Studies and the University of Geneva Law Faculty

Laurence Boisson de Chazournes

University of Geneva - Faculty of Law - Department of Public International Law

Date Written: June 2015

Abstract

While issues of constitutional law may arise directly in the ratification process of investment treaties and the execution of arbitral awards, well-established hurdles to the application of domestic law in transnational fora substantially limit the degree to which such issues factor into the merits of investor-State disputes. Nevertheless, they may gain prominence through informal paths. Rather than directly applying constitutional law per se, tribunals may utilize other paths such as deferring to domestic interpretations of constitutional principles, or to constitutional procedures that appear, for example, to protect fair and equitable treatment.

Keywords: comity, constitutional law, domestic law, expropriation, fair and equitable treatment, federal law, host-State, human right, informal deference, interpretation, investment arbitration, investor-State dispute, judicial decision, national court, North American Free Trade Agreement

JEL Classification: K33

Suggested Citation

McGarry, Brian and Boisson de Chazournes, Laurence, Constitutional Law and the Settlement of Investor-State Disputes: Some Interplays (June 2015). Jalloh, Charles Chernor & Elias, Olufemi. Shielding Humanity - Essays in International Law in Honour of Judge Abdul G. Koroma. Leiden, NL: Brill / Nijhoff. 2015, p. 230-241. Available at SSRN: https://ssrn.com/abstract=2701799

Brian McGarry (Contact Author)

Geneva LL.M. in International Dispute Settlement (MIDS), a joint programme of the Graduate Institute of International and Development Studies and the University of Geneva Law Faculty ( email )

Villa Moynier
Rue de Lausanne 120 B
Geneva, 1211
Switzerland

HOME PAGE: http://www.mids.ch/the-school/directors-staff.html

Laurence Boisson de Chazournes

University of Geneva - Faculty of Law - Department of Public International Law ( email )

Geneva
Switzerland

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