Systemic Integration: An Instrument for Reasserting the State's Control in Investment Arbitration?
27 Pages Posted: 19 Aug 2017
Date Written: August 1, 2017
This chapter argues that systemic integration can be used as an effective tool by States for reasserting their control in investment arbitration, provided this is done with due consideration of the inherent limitations of the principle under international law and within the confines of the processes of interpretation and application of treaties. The chapter begins with outlining the origins, function and application of the principle in general international law. It emphasises the distinction between the role of systemic integration in the interpretation and in the application of treaties. The second part analyses the applicability of systemic integration in investment law. It argues that there are special considerations limiting the application of systemic integration in an investment context. The principle ought to be applied mutatis mutandi given the mixed character of investment arbitration involving a non-State actor who is not a party to the investment treaty. Investment case law indicates that systemic integration is invoked with most success by States reasserting their sovereignty to regulate in accordance with their public policy. Overall, systemic integration is a powerful tool that ought to be used with caution in reasserting control in a process governed by specialised economic treaties and involving a non-State actor.
Keywords: Interpretation and Application of Treaties, Systemic Integration, Investment Law and Arbitration
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