Editor’s note: This is the final installment in the discussion begun last week of Martins Paparinskis’s EJIL article, “Investment Treaty Arbitration and the (New) Law of State Responsibility“.
Martins’ reply to my comments on his EJIL article highlights a number of challenging issues regarding the ongoing debate over the direct or derivative nature of investors’ rights under international investment agreements (IIAs). To summarize our disagreement: Martins, on the one hand, views the derivative rights approach “as only one of a number of plausible ways of articulating international law arguments about investment law”; on the other, I remain strongly reluctant towards this polyphony of plausible articulations, and rather find that the direct rights model is unconvincing.
Martins questions, first, whether the practice of NAFTA Parties indeed favours the derivative model; second, whether international law provides for causality (or even correlation) between the nature of obligations under treaties and the nature of rights derived thereunder; and, third, whether indeed the HICEE v Slovakia award explicitly adopts the derivative rights model. By way of rejoinder to Martins’ reply, I will address the first point separately, and the second and third points jointly. Read the rest of this entry…