Applicable Law in Investor-State Arbitration
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Applicable Law in Investor-State Arbitration

By Hege Elisabeth Kjos
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Book Description

This book examines the law, national and/or international, that arbitral tribunals apply on the merits to settle disputes between foreign investors and host states. In light of the freedom that the disputing parties and the arbitrators have when designating the applicable law, and because of the hybrid nature of legal relationship between investors and states, there is significant interplay between the national and the international legal order in investor-state arbitration. The book contains a comprehensive analysis of the relevant jurisprudence, legal instruments, and scholarship surrounding arbitral practice with respect to the application of national law and international law. It investigates the awards in which tribunals referred to consistency between the legal orders, and suggests alternatives to the traditional doctrines of monism and dualism to explain the relationship between the national and the international legal order. The book also addresses the territorialized or internationalized nature of the tribunals; relevant choice-of-law rules and methodologies; and the scope of the arbitration agreement, including the possibility of host states presenting counterclaims in investment treaty arbitration. Ultimately, it argues that in investor–state arbitration, national and international law do not only coexist but may be applied simultaneously; they are also interdependent, each complementing and informing the other both indirectly and directly for a larger common good: enforcement of rights and obligations regardless of their national or international origin.

Table of Contents
  • Cover
  • Table of Contents
  • Table of Cases
  • Table of Legislation
  • List of Abbreviations
  • 1. General Introduction
    • 1. Motivations for the Study
    • 2. The Scope of and Terminology Used in the Study
    • 3. The Method and Plan of the Study
  • 2. Territorialized and Internationalized Arbitration Tribunals
    • 1. Introduction
    • 2. Features of the Arbitral Process
    • 3. Territorialized Tribunals
    • 4. Internationalized Tribunals
    • 5. General Conclusions
  • 3. Choice-of-Law Rules
    • 1. Introduction
    • 2. The Linkage Between Lex Arbitri and Choice-of-Law Methodology
    • 3. Choice-of-Law Rules
    • 4. General Conclusions
  • 4. The Scope of the Arbitration Agreement: Claims and Counterclaims of a National and/or International Nature
    • 1. Introduction
    • 2. Characterization: The National or International Nature of Claims
    • 3. The Scope of the Arbitration Agreement: National and/or International Claims
    • 4. Counterclaims by Host States
    • 5. General Conclusions
  • 5. The Primary Applicability of National Law and the Role of International Law
    • 1. Introduction
    • 2. Reasons for the Primary Applicability of National Law
    • 3. The Role of International Law when National Law Primarily Applies
    • 4. General Conclusions
  • 6. The Primary Applicability of International Law and the Role of National Law
    • 1. Introduction
    • 2. Reasons for the Primary Applicability of International Law
    • 3. The Role of National Law when International Law Primarily Applies
    • 4. General Conclusions
  • 7. Concurrent Application of and Reference to National and International Law in Case of Consistency
    • 1. Introduction
    • 2. Arbitral Practice
    • 3. General Conclusions
  • 8. Concluding Observations
  • Index
    • A
    • B
    • C
    • D
    • E
    • F
    • G
    • H
    • I
    • J
    • K
    • L
    • M
    • N
    • O
    • P
    • Q
    • R
    • S
    • T
    • U
    • V
    • W
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