International Investment Law and the Public Law Analogy: The Fallacies of the General Principles Method
(2018) 9 Journal of International Dispute Settlement 654
22 Pages Posted: 29 Aug 2019
Date Written: 2018
Over the past ten years, commentators have drawn an analogy between the international investment regime and domestic public law in order to fill gaps, resolve ambiguities, or understand the nature of the nascent investment regime. One way in which domestic public law may be relevant is if it reflects a general principle of law that is applicable by virtue of Article 31(3)(c) of the Vienna Convention on the Law of Treaties. The practice of international investment tribunals demonstrates, however, that tribunals do not use domestic law according to the ‘general principles method’. Instead, investment tribunals’ use of comparative law raises various of normative and methodological issues that have not yet been thoroughly addressed in the literature.
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