THE IMPACT OF INVESTMENT TREATIS ON CONTRACTS BETWEEN HOST STATES AND FOREEIGN INVESTOS【2025|PDF下载-Epub版本|mobi电子书|kindle百度云盘下载】

THE IMPACT OF INVESTMENT TREATIS ON CONTRACTS BETWEEN HOST STATES AND FOREEIGN INVESTOSPDF格式电子书版下载

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Introduction1

From the Protection of Foreign Property to Global Economic Governance1

The Contracts between Host States and Foreign Investors as Instruments of Investment Protection7

The Modern Interrelationship between Treaties and Contracts in Investment Treaty Arbitration9

The Research Methodology and the Structure of the Work13

1. Contracts Between Host States and Foreign Investors in the Absence of International Investment Treaties15

A. The Existence and Characteristics of State Contracts15

Ⅰ. The Notion of State Contract and Its Legal Nature15

Ⅱ. Traditional and Modern Forms of State Contracts17

1. Traditional Forms17

2. Modern Forms19

a. Modern Concession Agreements20

b. Production Sharing Agreements21

c. Management Agreements/Technical Assistance Agreement/Service Contracts21

d. Turnkey Contracts22

e. Joint Venture Agreements22

f. Licensing and Transfer of Technology Agreements23

g. Build, Operate and Transfer Agreements(BOT Agreements)24

Ⅲ. Conclusion24

B. The Theories of Internationalisation25

Ⅰ. Introduction25

Ⅱ. Direct Internationalisation29

1. State Contracts as International Law/Per Se Application29

2. Genuine Legal Orders30

3. Customary International Law and Incorporation of International Law33

Ⅲ. Indirect Internationalisation34

1. The Origin of the Principle of Party Autonomy35

2. The Restrictions to the Principle of Party Autonomy37

a. The Content and General Limitations of the Principle of Party Autonomy37

b. The Participation of the State as a Sovereign39

3. Express Choice of Law by the Parties to the Dispute41

a. The Choice of a Genuine or Non-National Legal Order41

b. The Choice of Public International Law44

c. The Choice of the Host State's Internal Law47

4. Implied Choice48

Ⅳ. Conclusion50

2. The Regime Established by Investment Treaties51

A. Stocktaking: The Worldwide Network of Bilateral and Multilateral Investment Treaties51

Ⅰ. The Evolution of the Investment Treaty Network51

Ⅱ. The Reasons for the Emergence of Investment Treaties52

Ⅲ. The Present Existence of a Worldwide Network of Investment Treaties54

Ⅳ. The Creation of Customary International Law through Investment Treaties55

B. The Consent to Investment Arbitration in Investment Treaties57

Ⅰ. Three Methods of Establishing Consent in International Investment Arbitration57

Ⅱ. Range of Choices62

1. International Centre for the Settlement of Investment Disputes (ICSID)62

2. ICSID Additional Facility63

3. International Chamber of Commerce (ICC)64

4. UNCITRAL/AAA/LCIA/SCC Institute65

Ⅲ. The Treaty's Dispute Resolution Clause65

1. The Scope of the Host State's Consent65

a. Unqualified Access to International Arbitration66

b. Qualified Access to International Arbitration66

2. The Scope of a Broadly Phrased Dispute Resolution Clause68

a. Arbitral Practice68

b. Discussion of the Contradicting Approaches73

c. Conclusion81

C. The Legal Effects of the International Investment Treaty Regime81

Ⅰ. Conferral of Rights upon the Private Individual81

1. The "Derivative" Model82

2. The "Direct" Theory85

3. Examination of the Contradicting Approaches87

a. Wording of the Substantive Provisions87

b. Direct Access to International Dispute Settlement88

c. Comparison with the Systemic Features of Diplomatic Protection89

d. Waiver of Diplomatic Protection93

e. Difference between State—State Proceedings and Diplomatic Protection94

f. Conclusion95

Ⅱ. Consequences of a Treaty Breach: State Responsibility and the Investment Treaty Regime95

1. The General System of State Responsibility and Sub-Systems of State Responsibility96

a. Consequences of Breach under the General System of State Responsibility96

b. Sub-Systems of State Responsibility97

2. The Investment Treaty Regime as a Sub-System98

a. The Differences between the Investment Treaty System and the General System98

b. Relationship to General Rules of State Responsibility100

3. Special Consequences under the Investment Treaty Regime102

Ⅲ. The Application of International Law in International Arbitration over Contracts between Host States and Foreign Investors103

1. General103

2. Application of International Law due to Direct Choice by Treaty104

a. The Source of the Choice of Law Rule104

b. The Direct Choice by Treaty105

3. Indirect Choice of International Law by Treaties107

a. Framework of Arbitral Rules107

b. Investment Treaties as International Law108

4. The Role of Domestic Law110

a. Necessity of the Application of Domestic Law110

b. The Relationship between Domestic Law and International Law111

c. The Contractual Choice of Domestic Law114

D. The Notion of"Investment" and Contracts Between Foreign Investor and Host State115

Ⅰ. The Specific Regulations concerning Contracts116

1. Exclusion of Contractual Contents117

2. Limited Protection of Contractual Contents118

3. Full Protection of Contractual Contents119

Ⅱ. Contracts and Contractual Contents as"Investment" under the ICSID Convention124

1. Substantial Contributions125

2. Duration128

3. Risk-Assumption/Return of Gains or Profit131

4. Significant Contribution to Economic Development134

5. Investment Treaties as Lex Specialis137

Ⅲ. Conclusion138

E. Investment Treaties and Sub-State Entities as Parties to Contracts138

Ⅰ. Sub-State Entities as Contractual Partner under General International Law139

1. General Aspects139

2. Attribution of Conduct to the State140

Ⅱ. Investment Treaty Arbitration and Attribution of Conduct of Sub-State Entities148

1. Attribution of Conduct under International Law149

2. Determination of the Parties to a Contractual Dispute155

Ⅲ. Special Regimes of Attribution of Particular Investment Treaties156

1. Articles 22 and 23 of the ECT157

2. Article 2(2) of the 2004 US Model BIT158

Ⅳ. Conclusion159

3. The Substantive Coverage of Contracts Between Host States and Foreign Investors Through Investment Treaty Standards160

A. The Distinction between Treaty Claims and Contract Claims160

Ⅰ. Conceptual Distinction160

Ⅱ. Relevance of the Distinctions162

Ⅲ. The Evolution of Arbitral Case Law163

1. The Authoritative Annulment Decision in Vivendi—Analytical Separation and the Principle of Coincidence163

2. The Prima Facie Approach for Jurisdictional Purposes167

a. Competence/Competence ofInternational Arbitral Tribunals167

b. Determination of Jurisdiction168

Ⅳ. The Fundamental Differences between Contract Claims and Treaty Claims173

1. The Nature of Investment Treaties and the Consequent Distinction between International Commercial Arbitration and Investment Arbitration173

2. The Distinction between Commercial and Governmental Conduct177

B. The Substantive Protection Standards of Investment Treaties and Their Coverage of State Contracts179

Ⅰ. Expropriation179

1. Expropriation under Customary International Law179

2. Expropriation of Contracts under Customary International Law181

3. Expropriation of Contracts under the Regime of Investment Treaties187

a. Coverage of State Contracts187

b. Distinction between Breach of Contract and Expropriation189

c. Findings of an Expropriation of State Contract192

d. Conclusion196

Ⅱ. The Fair and Equitable Treatment Standard197

1. General Considerations197

a. Origins of the Standard197

b. Fair and Equitable Treatment and the International Minimum Standard199

c. Specifications of the Content201

2. The Coverage of State Contracts204

a. Legitimate Expectations204

b. Failure to Provide a Stable Framework for the Investment and Other Violations of the Standard211

3. Conclusion214

Ⅲ. Further Standards215

1. Non-Discrimination215

2. Full Protection and Security216

Ⅳ. Concluding Remarks216

1. The Dogma of the Governmental—Commercial Distinction216

2. The Difference between the Fair and Equitable Treatment Standard and the Non-ExpropriationStandard219

3. The Broad Discretion of Arbitrators220

4. The Umbrella Clause221

A. General Considerations221

B. History and Contemporary Use of the Clause223

Ⅰ. Historical Analysis223

1. Anglo-Iranian Oil Company223

2. The Abs-Shawcross Draft Convention on Investments Abroad225

3. OECD Draft Convention on the Protection of Foreign Property 1967227

Ⅱ. Contemporary Occurrence and Use of the Clause228

1. Occurrence at Present229

2. Multilateral Agreements230

3. Differences in the Clauses' Wordings231

a. Mandatory Language231

b. Scope of Obligations232

c. Structure233

d. Requisitions of the Wording233

C. The Effect of the Clause235

Ⅰ. The Narrow Interpretation or Rejection of an Elevating Effect235

Ⅱ. The Elevating Effect238

Ⅲ. Distinction between Commercial and Non-Commercial Conduct243

D. The Central Controversial Aspects245

Ⅰ. The Wording of the Clause245

1. Narrow Interpretation245

2. Broad Interpretation247

3. Conclusion250

Ⅱ. The Implications of the Purpose of Investment Treaties252

1. In Dubio Mitius252

2. Effective Interpretation254

Ⅲ. The Consequences of a Broad Interpretation256

1. The Narrow Approach256

2. The Middle Approach259

3. The Broad Approach261

Ⅳ. The Location of the Clause265

Ⅴ. Alternative Functions of the Clause267

E. Resolution of Central Aspects269

Ⅰ. Threshold of Elevation270

Ⅱ. Manner of Elevation273

Ⅲ. The Contracts Covered275

5. The Relationship of Parallel Treaty-Based International Arbitral Proceedings and Contract-Based Domestic Court Proceedings in Investment Treaty Disputes277

A. Conflicting Jurisdictions under International Investment Treaties and Contracts between a Foreign Investor and a Host State277

Ⅰ. Jurisdictional Conflicts in Investment Treaty Law278

1. Generation and Risks of Parallel and Multiple Proceedings278

2. Contract-Related Parallel Proceedings:"Asymmetrical" and "Symmetrical"Conflicts284

3. Traditional Means of Jurisdictional Conflict Resolution and Their Effect under the Investment Treaty Regime285

a. The Exhaustion of Local Remedies Rule286

b. The Principles of Litis Pendens and Res Judicata288

Ⅱ. Treaty Provisions on the Avoidance of Parallel Proceedings290

1. The "Fork in the Road Clause"290

2. Prior Recourse to State Courts for a Fixed Period of Time293

3. Alternative Proposals on Jurisdictional Conflict Mitigation296

a. Article 1121 of the NAFTA296

b. Article 26 of the ICSID Convention298

c. Transaction-Based Approaches and Dispute-Based Approaches300

B. The Relationship between International Treaty Proceedings and Domestic Contract Proceedings301

Ⅰ. General Considerations301

Ⅱ. Prevalence of International Tribunals in Asymmetrical Conflicts303

1. The Superior Status of International Tribunals303

2. The Primacy or "Independency" of International Investment Tribunals305

Ⅲ. The Impact of the Contractual Dispute Resolution Clause on Symmetrical Conflicts309

1. Traditional Forms—The Calvo Clause310

2. The Interpretation in Modern Investment Arbitration313

3. The Different Views and Their Resolution320

a. Waiver of Right to Treaty Protection320

b. The Effects of a Contractual Dispute Resolution Clause323

Ⅳ. Conclusion331

Final Conclusion332

Bibliography337

Index361