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Fair and Equitable Treatment and Human Rights: A Moral and Legal Reconciliation
In: Journal of international economic law, Band 25, Heft 4, S. 568-591
ISSN: 1464-3758
ABSTRACT
A central challenge to the legitimacy of international investment law is its failure to take account of a state's commitments to its people under international human rights law—duties that stand on a special moral plane. The vortex of this challenge is the fair and equitable treatment standard, where tribunals protect the 'legitimate expectations' of investors but disregard these preeminent moral commitments. This article develops a new framework for integrating those commitments into fair and equitable treatment decision-making and treaty-drafting. Deploying an interdisciplinary approach that draws on political philosophy as well as extant law and doctrine, I argue that the current international political morality requires putting human rights on a higher plane than commitments to investors. As a result, tribunals should give great deference to state measures that negatively affect investors if the state justifies them based on its international human rights law obligations and lesser but still significant deference for measures based on encouragements or permissions in international human rights law. It operationalizes this approach for tribunals by recasting the doctrine of legitimate expectations and provides examples of how it would work in specific disputes. This article concludes with suggestions for integrating states' human rights mandates into future investment agreements.
The Aggravating Duty of Non-Aggravation
In: European journal of international law, Band 31, Heft 4, S. 1307-1342
ISSN: 1464-3596
Abstract
International law's duty of non-aggravation requires states to avoid actions that might inflame an international dispute, both to maintain international peace and to preserve the effectiveness of judicial or arbitral proceedings. Yet parties on the receiving end of calls for non-aggravation – whether from the Security Council or a tribunal – have little idea of what conduct they are expected to avoid. This state of affairs is most unfortunate in light of the centrality of this norm to the peaceful resolution of disputes and, in particular, examples of provocative and aggravating acts in recent years. This article attempts to give some meaning to this important, but frustratingly vague, norm of international law. After reviewing current understandings of the duty by political and judicial bodies, it justifies the need for a more specific understanding of non-aggravation. It then develops a set of criteria to distinguish aggravating from non-aggravating acts, a process informed by both existing expectations and the underlying purposes of the norm. Based on these criteria, the article offers a coding scheme of presumptively aggravating and non-aggravating acts. Beyond its relevance for decision-makers, the article seeks to encourage theoretical inquiry into the advantages and disadvantages of vague (or underspecified) norms in the international legal order.
Survey Article: Global Investment Rules as a Site for Moral Inquiry
In: The journal of political philosophy, Band 27, Heft 1, S. 107-135
ISSN: 1467-9760
Global Investment Rules as a Site for Moral Inquiry
In: Journal of Political Philosophy, Band 27, Heft 1
SSRN
International Investment Law through the Lens of Global Justice
In: Journal of international economic law, Band 20, Heft 4, S. 747-775
ISSN: 1464-3758
Compliant Rebels: Rebel Groups and International Law in World Politics. By Hyeran Jo . Cambridge: Cambridge University Press, 2015. Pp. xxii, 331. Index. $124
In: American journal of international law: AJIL, Band 111, Heft 2, S. 550-554
ISSN: 2161-7953
Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction
In: American journal of international law: AJIL, Band 111, Heft 1, S. 7-56
ISSN: 2161-7953
For much of the last century, global actors have sparred over the international legal rules governing the compensation a state should pay a foreign investor when it expropriates the latter's property. The competing claims have had many dimensions, including the content of customary international law and the line between bona fide regulations and expropriations. In the modern age of international investment agreements (IIAs), a debate continues over another key issue: When a state expropriates a foreign investment in violation of an IIA, where should a tribunal look for the standard of compensation—to the amount the treaty requires the state to pay when it expropriates, or to an external standard for violations of international law generally? Each is alluring to a tribunal for its legal visibility—one spelled out in the very text under examination, and one stemming from a venerable international court case. But they may point to significantly different results for the investor and the host state. And investor-state tribunals remain wildly inconsistent, even incoherent, in their choice and use of those standards. It remains a significant source of disagreement in contemporary investor-state arbitration.
Compensation for expropriations in a world of investment treaties: beyond the lawful/unlawful distinction
In: American journal of international law, Band 111, Heft 1, S. 7-56
ISSN: 0002-9300
World Affairs Online
Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction
In: 111 American Journal of International Law 1 (2017)
SSRN
Working paper
International Investment Law Through the Lens of Global Justice
In: Journal of International Economic Law, Band 20, S. 747-775
SSRN
War/Crimes and the Limits of the Doctrine of Sources
In: Oxford Handbook on the Sources of International Law, Forthcoming
SSRN
After Atrocity: Optimizing UN Action Toward Accountability for Human Rights Abuses
In: Michigan Journal of International Law, Band 36, Heft 3
SSRN
Working paper