Investor-State Arbitration Tribunals

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A Critique of the Legitimate Expectations Doctrine in Investment Treaty Arbitration

Dr Yenkong Ngangjoh Hodu is a Senior Lecturer in Law at the University of Manchester School of Law. In recent years, the concept of ‘legitimate expectations’ has routinely been put forward by claimants as the basis of claims in investment treaty arbitrations, and endorsed by some arbitrators (see International Thunderbird Gaming Corporation v  United Mexican States, Separate Opinion of T. Walde, para. 37). Relying on ‘legitimate expectations’ that have been frustrated as grounds for an award is troubling, and in the words of a recent EJIL article by Martins Paparinskis “suggest[s] a radical departure from the traditional model of international responsibility”, and may even be tantamount to deciding ex aequo et bono [(2013) 24 EJIL 617, 628]. Tribunals have regarded the doctrine of legitimate expectations as  a part of the fair and equitable treatment standard provided for in investment treaties (see Sempra Energy International v Argentine Republic, pp. 87-88 at para. 298). This is incongruous with the law of state responsibility where the breach of a contract between a state and an alien is not necessarily…

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The Course Catalogue of The Hague Academy as a Timeline of International Law

Sadie Blanchard is a Research Fellow at the Max Planck Institute for International, European and Regulatory Procedural Law. The Hague Academy of International Law (logo, below right, credit) has offered annual courses in public and private international law for eighty-five years as part of its founding objective of promoting “peace through…

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Fair and Equitable Treatment: A Rejoinder to Martins Paparinskis

I don’t think that there’s all that much between Martins Paparinskis and me.   I certainly don’t decry the difference between treaty and custom in this field, or the important part that both play in encouraging investment…

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A Reply to Anthea Roberts and Federico Ortino

Anthea Roberts puts the argument of my book into broader international law perspective by asking three questions. First, she wonders whether there might be a need to reformulate the criteria of customary law to make them more realistic. Secondly, she gently chides me for being too hasty in dismissing domestic public law arguments. Thirdly, she is interested in…

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A Reply to Sir Frank Berman

I am very grateful to Sir Frank Berman, Anthea Roberts, and Federico Ortino for their wide-ranging observations about my book. As much as I would like to give an exhaustive reply to each of them, I could not do justice to all of their comments without exceeding the natural limitations of time and space imposed by the forum.

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