Table of contents for Principles of international investment law / Rudolf Dolzer and Christoph Schreuer.

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Contents
Table of Cases/Legislation
I. Nature, Evolution, and Context of International Investment Law 1
1. International Investment Law as a Field of Study 1
2. The Business Nature of a Foreign Investment: A Long-Term Risk 3
3. Host State Sovereignty and the Rules of Foreign Investment 7
4. Customary International Law: The Emergence of a Minimum Standard 11
5. Treaty Law: Evolution and Purpose 17
6. Current Trends in Treaty Practice 24
7. Regional Agreements: Energy Charter, NAFTA 27
II. Interpretation and Application of Investment Treaties 31
1. Interpreting Investment Treaties 31
2. Application of Investment Treaties in Time 38
III. Investors and Investments 46
1. Investors: Individuals, Companies, Nationality, and Shareholders 46
2. Investment 60
IV. Investment Contracts 72
1. Types of Investment Contracts 72
2. Applicable Law 73
3. Stabilization Clauses 75
4. Renegotiation / Adaptation 77
V. Admission and Establishment 79
1. The Move towards Economic Liberalism 79
2. Treaty Models of Admission 80
3. Performance Requirements 82
4. Non-Compliance by Investor with Host State Law and International Public Policy 84
VI. Expropriation 89
1. The Right to Expropriate 89
2. The Three Branches of the Law 90
3. The Legality of the Expropriation 90
4. Direct and Indirect Expropriation 92
5. Expropriation of Contractual Rights 115
VII. Standards of Protection 119
1. Fair and Equitable Treatment 119
2. Full Protection and Security 149
3. The Umbrella Clause 153
4. Access to Justice, Fair Procedure, and Denial of Justice 162
5. Emergency, Necessity, Armed Conflicts, and Force Majeure 166
6. Preservation of Rights 172
7. Arbitrary or Discriminatory Measures 173
8. National Treatment 178
9. Most-Favoured-Nation Treatment 186
10. Transfer of Funds 191
VIII. State Responsibility and Attribution 195
1. Organs, Provinces, and Municipalities 195
2. State Entities 198
3. Party Status for Constituent Subdivisions or Agencies under the ICSID Convention 205
IX. Political Risk Insurance 207
X. Settling Investment Disputes 211
1. State v State Disputes 211
2. Investor v State Disputes 214
Annexes 291
1. Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) (March 1965) 291
2. Energy Charter Treaty (Parts I, III, V) (December 1994). 314
3. North American Free Trade Agreement (NAFTA), Chapter XI (December 1992) 330
4. Agreement between the People's Republic of China and the Government of [?.?.?.?] on the Promotion and Protection of Investments (Chinese Model BIT) (2003) 352
5. Draft Agreement between the Government of the Republic of France and the Government of [?.?.?.?] on the Reciprocal Promotion and Protection of Investments (French Model BIT) (date) 360
6. Treaty between the Federal Republic of Germany and [?.?.?.?] concerning the Encouragement and Reciprocal Protection of Investments (German Model BIT) (2005) 367
7. Draft Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of [?.?.?.?] for the Promotion and Protection of Investments (UK Model BIT) (2005) 375
8. Treaty between the Government of the United States of America and the Government of [?.?.?.?] concerning the Encouragement and Reciprocal Protection of Investment (US Model BIT) (2004) 384
Index 000
Contents
Table of Cases/Legislation
I. Nature, Evolution, and Context of International Investment Law 1
1. International Investment Law as a Field of Study 1
2. The Business Nature of a Foreign Investment: A Long-Term Risk 3
3. Host State Sovereignty and the Rules of Foreign Investment 7
4. Customary International Law: The Emergence of a Minimum Standard 11
5. Treaty Law: Evolution and Purpose 17
6. Current Trends in Treaty Practice 24
7. Regional Agreements: Energy Charter, NAFTA 27
II. Interpretation and Application of Investment Treaties 31
1. Interpreting Investment Treaties 31
(a) Methods of Treaty Interpretation?31
(b) Travaux Preparatoires?33
(c) Interpretative Statements?34
(d) The Authority of 'Precedents'?35
(e) Towards a Greater Uniformity of Interpretation?37
2. Application of Investment Treaties in Time 38
(a) Inter-Temporal Application of Treaties in General?38
(b) Different Inter-Temporal Rules for Jurisdiction and Substance?39
(c) The Date Relevant to Determine Jurisdiction?41
(d) Relevant Dates under the ICSID Convention?41
(e) Inter-Temporal Rules in Other Treaties?43
III. Investors and Investments 46
1. Investors: Individuals, Companies, Nationality, and Shareholders 46
(a) Private Foreign Investors?46
(b) Nationality of Individuals?47
(c) Nationality of Corporations?49
(d) Article 25(2)(b) of the ICSID Convention: Agreement to Treat a Local Company as a Foreign National because of Foreign Control?52
(e) Nationality Planning and Denial of Benefits?54
(f) Shareholders as Investors?56
2. Investment 60
(a) The Concept of an Investment?60
(b) Definitions in Investment Protection Treaties?62
(c) Case Law?65
IV. Investment Contracts 72
1. Types of Investment Contracts 72
2. Applicable Law 73
3. Stabilization Clauses 75
4. enegotiation / Adaptation 77
V. Admission and Establishment 79
1. The Move towards Economic Liberalism 79
2. Treaty Models of Admission 80
3. Performance Requirements 82
4. Non-Compliance by Investor with Host State Law and International Public Policy 84
VI. Expropriation 89
1. The Right to Expropriate 89
2. The Three Branches of the Law 90
3. The Legality of the Expropriation 90
4. Direct and Indirect Expropriation 92
(a) Broad Formulae: Their Substance and Evolution?92
(b) Judicial and Arbitral Practice: Some Illustrative Cases?96
(c) Effect or Intention??101
(d) Legitimate Expectations?104
(e) The Issue of Control: Partial Expropriation??106
(f) General Regulatory Measures?109
(g) Duration of a Measure?112
(h) Creeping Expropriation?114
5. Expropriation of Contractual Rights 115
VII. Standards of Protection 119
1. Fair and Equitable Treatment 119
(a) History of the Concept?119
(b) Heterogeneity of Treaty Language?121
(c) Nature and Function?122
(d) Fair and Equitable Treatment and Customary International Law?124
(e) The Evolution of the Fair and Equitable Treatment Standard?128
(f) Attempts at Defining Fair and Equitable Treatment?130
(g) Methodological Issues?133
(h) Specific Applications of the Fair and Equitable Treatment Standard?133
aa. Transparency, Stability, and the Protection of the Investor's Legitimate Expectations?133
bb. Compliance with Contractual Obligations?140
cc. Procedural Propriety and Due Process?142
dd. Good Faith?144
ee. Freedom from Coercion and Harassment?147
(i) Conclusion 148
2. Full Protection and Security 149
(a) Concept?149
(b) Protection against Physical Violence and Harassment?150
(c) Legal Protection?151
(d) Relationship to Customary International Law?152
3. The Umbrella Clause 153
4. Access to Justice, Fair Procedure, and Denial of Justice 162
5. Emergency, Necessity, Armed Conflicts, and Force Majeure 166
(a) Customary International Law?166
(b) Treaty Law?167
(c) The ILC Articles on State Responsibility?168
aa. Necessity?168
bb. Force Majeure?171
6. Preservation of Rights 172
7. Arbitrary or Discriminatory Measures 173
(a) The Meaning of Arbitrary Measures?173
(b) Relationship to Fair and Equitable Treatment and to Customary International Law?175
(c) The Meaning of Discriminatory Measures?176
8. National Treatment 178
(a) General Meaning?178
(b) Application?179
aa. The Basis of Comparison?180
bb. The Existence of a Differentiation?181
cc. Is there a Justification for the Differentiation??181
dd. The Relevance of Discriminatory Intent?183
(c) The Relevance of WTO Case Law?184
9. Most-Favoured-Nation Treatment 186
(a) Introduction?186
(b) Variations of MFN Clauses?187
(c) Method of Interpretation?188
(d) Invoking Substantive Rights?188
(e) Current State of the Law?190
10. Transfer of Funds 191
VIII. State Responsibility and Attribution 195
1. Organs, Provinces, and Municipalities 195
(a) State Organs?196
(b) Provinces and Municipalities?197
2. State Entities 198
(a) The Role of State Entities?198
(b) Structure, Function, and Control?200
(c) Judicial Practice on Attribution?201
(d) State Responsibility for Failure to Protect?204
3. Party Status for Constituent Subdivisions or Agencies under the ICSID Convention 205
IX. Political Risk Insurance 207
X. Settling Investment Disputes 211
1. State v State Disputes 211
(a) Diplomatic Protection?211
(b) Direct Disputes between States?213
2. Investor v State Disputes 214
(a) The Role of Domestic Courts?214
aa. The Limited Usefulness of Domestic Courts?214
bb. The Requirement to Resort to Domestic Courts?215
cc. The Fork in the Road?216
dd. Selection of Domestic Courts in Contracts?217
(b) Arbitration and Conciliation?220
(c) Arbitration Institutions and Regimes?222
aa. ICSID?222
bb. ICSID Additional Facility?224
cc. Non-ICSID Investment Arbitration?225
i. The International Chamber of Commerce?227
ii. The London Court of International Arbitration?227
iii. UNCITRAL Rules?227
iv. The Iran-United States Claims Tribunal?228
v. The Permanent Court of Arbitration?229
(d) The Subject Matter of the Dispute (Jurisdiction Ratione Materiae) 230
aa. The Dispute?230
bb. The Legal Nature of the Dispute?230
cc. The Directness of the Dispute in Relation to the Investment?231
dd. The Investment?233
(e) The Parties to the Dispute (Jurisdiction Ratione Personae) 233
aa. The Host State?234
bb. The Investor?235
cc. The Investor's Nationality?236
dd. The Significance of the Additional Facility?238
(f) Consent to Arbitration?238
aa. Consent by Direct Agreement?239
bb. Consent through Host State Legislation?240
cc. Consent through Bilateral Investment Treaties?242
dd. Consent through Multilateral Treaties?243
ee. The Scope of Consent?244
ff. Procedural Conditions to Consent?247
gg. The Interpretation of Consent?251
(g) The Applicability of MFN Clauses to Dispute Settlement?253
(h) Procedure?257
(i) Provisional Measures?262
(j) Applicable Law?265
(k) Damages and Compensation?271
(l) Costs?276
(m) Challenge and Review of Decisions?277
aa. Review in non-ICSID Arbitration?278
bb. Annulment under the ICSID Convention?279
i. Excess of Powers?281
ii. Serious Departure from a Fundamental Rule of Procedure?283
iii. Failure to State Reasons?284
iv. Resubmission to a New Tribunal?285
cc. Supplementation and Rectification under the ICSID Convention?286
dd. Interpretation under the ICSID Convention?286
ee. Revision under the ICSID Convention?287
(n) Enforcement of Awards?287
Annexes 291
1. Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) (March 1965) 291
2. Energy Charter Treaty (Parts I, III, V) (December 1994). 314
3. North American Free Trade Agreement (NAFTA), Chapter XI (December 1992) 330
4. Agreement between the People's Republic of China and the Government of [?.?.?.?] on the Promotion and Protection of Investments (Chinese Model BIT) (2003) 352
5. Draft Agreement between the Government of the Republic of France and the Government of [?.?.?.?] on the Reciprocal Promotion and Protection of Investments (French Model BIT) (date) 360
6. Treaty between the Federal Republic of Germany and [?.?.?.?] concerning the Encouragement and Reciprocal Protection of Investments (German Model BIT) (2005) 367
7. Draft Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of [?.?.?.?] for the Promotion and Protection of Investments (UK Model BIT) (2005) 375
8. Treaty between the Government of the United States of America and the Government of [?.?.?.?] concerning the Encouragement and Reciprocal Protection of Investment (US Model BIT) (2004) 384
Index 000

Library of Congress Subject Headings for this publication:

Investments, Foreign -- Law and legislation.