magnify
Home International Economic Law Bilateral Investment Treaties Investment Treaty Arbitration and the (New) Law of State Responsibility

Investment Treaty Arbitration and the (New) Law of State Responsibility

Published on October 21, 2013        Author: 

Martins PaparinskisI am grateful to EJIL:Talk! for hosting the discussion of my article and chapter. I am privileged to have Anastasios Gourgourinis, Jessica Howley, and Robert Howse as discussants. In the following paragraphs I summarise the main arguments made in the article and the chapter.

The starting point of the argument is that investment law partly borrows and partly diverges from pre-existing regimes of international law. An interpreter of an investment protection treaty is required to determine the degree of similarity and difference so as to elaborate the meaning of particular terms, broader systemic structures, and underlying secondary rules. In order to situate investment protection law within the broader international legal order, an interpreter might draw upon multiple legal techniques from established legal regimes. Within the four corners of international law reasoning, the models of direct rights, beneficiary rights, and agency are the most plausible, relying on techniques drawn from, respectively, the law of human rights, law of treaties on third parties, and diplomatic protection. A firm position regarding the legally most plausible model will not be taken. Instead, the implications of relying on the techniques of those regimes will be spelled out, applying across different branches of international law.

The EJIL article under discussion examines whether and how the invocation of responsibility by a non-state actor has affected secondary rules of state responsibility. The shift from the state to the investor as the entity invoking responsibility for the breach of investment treaties seems to have influenced the law of state responsibility in a number of distinct ways. The apparent disagreement about the law of state responsibility may sometimes properly relate to questions of treaty interpretation, while in other cases rules from an inter-state context are applied verbatim. In yet other cases, the different perspectives lead to importantly different conclusions regarding circumstances precluding wrongfulness, elements of remedies, waiver of rights, and, possibly, interpretative relevance of diplomatic protection rules. The forthcoming chapter applies the same analytical perspective to the law of treaties, examining rules on interpretation and treaty-making through the lenses of other regimes of international law. The overall thesis is that the conceptual perspective of plausibly different readings of the genealogy of foundational structures of investment law is very important, but needs to be applied with subtlety: sometimes all the perspectives point in the same direction; sometimes they do not; sometimes they do but for very different reasons; and, in any event, a diligent application of such traditional techniques of legal reasoning as interpretation, resolution of conflicts, and analogies is just as important for reaching the right legal result.

Print Friendly
 

3 Responses

  1. Joost

    Dear Martins,

    Would you please remedy my ignorance? What does “the conceptual perspective of plausibly different readings of the genealogy of foundational structures of investment law” mean? Thanks.

    Best,

    Joost

  2. Of course. It may be that that the first paragraph and the second paragraph up to the part of the sentence that you quote might give some idea of my argument. In any event, when I wrote ‘the conceptual perspective of plausibly different readings of the genealogy of foundational structures of investment law’, I meant to refer to a perspective that considers investment law to be a regime of international law that partly borrows and partly diverges from other regimes of international law. Reasonable people might disagree about which international law regime has had the most influence on investment law. These plausibly different readings of the basic elements of investment law – law of State responsibility and law of treaties in particular – are important but not necessarily determinative for answering particular legal questions. The article and chapter examine a number of case studies to illustrate both the potential and the limitations of this approach.

  3. Joost

    Dear Martins,

    Thanks for your clarification. Now let me explain the reasons for my lack of clarity on what you say. I found it a bit difficult to be sure of what exactly you meant because you use the word ‘perspective’ both in the singular and in the plural forms to mean the same thing, I guess. Also I wasn’t sure as to how one can apply a perspective, with or without subtility: you apply rules that belong to the legal system that govern the matter. This is not a perspective from what I understand. Further, if a change of perspective changes the rules that apply, or the way rules apply, then I guess ‘perspective’ is just the name we give to the personal views or opinions as to whether a (which) legal system is there. This, I would tend to believe, cannot be changed by opinions, even less so in a ‘pick-and-choose’ fashion. But I guess that’s a matter of opinion.

    Best,

    Joost