Investment arbitrators rely on sovereignty for their legal status just as investor-state disputes usually stem from disagreements about the role of the state in society. As a result, investment arbitration is a vehicle for the exercise of sovereign authority and a site for contesting sovereign choices. This book investigates and evaluates the decision-making record and policy trajectory of international investment arbitration, from theoretical, doctrinal, and empirical perspectives. It analyses the extent to which the system used to resolve disputes impacts on the role of government, affecting diverse constituencies, as opposed to limiting itself to case-specific disputes between a single business enterprise and state entity. The book provides a comprehensive review of known awards in order to determine the types of government measures that have triggered disputes. It investigates how investment arbitrators have exercised their authority in recent case law. It provides a review of the approaches adopted in the reasoning of investment treaty tribunals on questions of judicial deference and respect for sovereign decision-makers. In doing so, it determines whether investment tribunals have taken a predominantly assertive approach to investor protection, without regard to their relative lack of accountability, capacity, or proximity in some cases. This approach does not sit comfortably with the relative restraint seen by domestic and international courts in similar contexts. The book argues that the unique characteristics of investment treaty arbitration make the experience of domestic judicial review more pertinent to international investment arbitration than to any other contexts for international adjudication. However, it argues that mediating devices in some form should be incorporated into the process in order to solve the tension between the extensive scope and potency of international investment arbitration as an important site of global governance, and the challenges of the review function in reviewing decisions which have strong claims to having comprehensive regulatory expertise, inclusive decision-making, electoral or other public accountability, or greater proximity to the underlying facts and context. Online Appendices

The idea of sovereignty and the debates that surround it are not merely of historical, academic, or legal interest: they are also potent, vibrant issues and as current and relevant as today's front page news in the United States and in other Western democracies. In the post- 9/11 United States, the growth of the national security state has resulted in a growing struggle to maintain the legal and ethical boundaries surrounding executive authority, boundaries that help to define and protect democratic governance. These post-9/11 developments and their effect on the scope of presidential power present hard questions and are fueling today's intense debates among political leaders, citizens, constitutional scholars, historians, and philosophers. This volume will contribute to the public conversation on the nature of executive authority and its relation to the broader topic of sovereignty in several ways. First, readers will learn that the current vital questions surrounding the nature of executive authority and presidential power have their intellectual roots in historical and philosophical writings about the nature of sovereignty. Second, sovereignty has historically been a complicated topic; this volume helps identify the terms of the debate. Third, and most critically, citizens' understanding of the concept of sovereignty is essential to grasping the available options for confronting current challenges to the rule of law in democratic societies. The volume's 15 essays, drawn from among the disciplines of law, political, science, philosophy, and international relations, covers an expansive series of topics, from historical theories and international affairs, to governmental transparency and legitimacy. The volume also focuses on the changes in the concept of sovereignty post-9/11 in the United States and their impact on democracy and the rule of law, particularly in the area of national security practice.

Equality is the endangered species of political ideals. Even left-of-center politicians reject equality as an ideal: government must combat poverty, they say, but need not strive that its citizens be equal in any dimension. In his new book Ronald Dworkin insists, to the contrary, that equality is the indispensable virtue of democratic sovereignty. A legitimate government must treat all its citizens as equals, that is, with equal respect and concern, and, since the economic distribution that any society achieves is mainly the consequence of its system of law and policy, that requirement imposes serious egalitarian constraints on that distribution. What distribution of a nation's wealth is demanded by equal concern for all? Dworkin draws upon two fundamental humanist principles--first, it is of equal objective importance that all human lives flourish, and second, each person is responsible for defining and achieving the flourishing of his or her own life--to ground his well-known thesis that true equality means equality in the value of the resources that each person commands, not in the success he or she achieves. Equality, freedom, and individual responsibility are therefore not in conflict, but flow from and into one another as facets of the same humanist conception of life and politics. Since no abstract political theory can be understood except in the context of actual and complex political issues, Dworkin develops his thesis by applying it to heated contemporary controversies about the distribution of health care, unemployment benefits, campaign finance reform, affirmative action, assisted suicide, and genetic engineering.

Sovereignty is the vital organizing principle of modern international law. This book examines the origins of that principle in the legal and political thought of its most influential theorist, Jean Bodin (1529/30-1596). As the author argues in this study, Bodin's most lasting theoretical contribution was his thesis that sovereignty must be conceptualized as an indivisible bundle of legal rights constitutive of statehood. While these uniform 'rights of sovereignty' licensed all states to exercise numerous exclusive powers, including the absolute power to 'absolve' and release its citizens from legal duties, they were ultimately derived from, and therefore limited by, the law of nations. The book explores Bodin's creative synthesis of classical sources in philosophy, history, and the medieval legal science of Roman and canon law in crafting the rules governing state-centric politics. The Right of Sovereignty is the first book in English on Bodin's legal and political theory to be published in nearly a half-century and surveys themes overlooked in modern Bodin scholarship: empire, war, conquest, slavery, citizenship, commerce, territory, refugees, and treaty obligations. It will interest specialists in political theory and the history of modern political thought, as well as legal history, the philosophy of law, and international law.

Research Handbook on International Law and Natural Resources provides a systematic and comprehensive analysis of the role of international law in regulating the exploration and exploitation of natural resources. It illuminates interactions and tensions between international environmental law, human rights law and international economic law. It also discusses the relevance of soft law, international dispute settlement, as well as of various unilateral, bilateral, regional and transnational initiatives in the governance of natural resources. While the Handbook is accessible to those approaching the subject for the first time, it identifies pressing areas for further investigation that will be of interest to advanced researchers.

Increasing international investment, the proliferation of international investment agreements, domestic legislation, and investor-State contracts have contributed to the development of a new field of international law that defines obligations between host states and foreign investors with investor-State dispute settlement. This involves not only vast sums, but also a panoply of rights, duties, and shifting objectives at the juncture of national and international law and policy. This engaging Research Handbook provides an authoritative account of these diverse investment law issues.

This monograph offers a detailed and distinctive analysis of corporate nationality under international investment law, covering the ICSID Convention and the investment treaty framework. It takes the reader back to the basics, threading through the concepts of jurisdiction, nationality, and corporate personality to give a clear context to the discussion of corporate nationality under international investment law, at a time when international investment is dominated by multinational business enterprises operating in a globalised economy. The book examines different understandings of corporate personality and nationality under a selection of jurisdictions and public international law. It also offers an in-depth analysis of approaches found in ICSID arbitral awards and in investment treaty practice, distilling the problematic areas and discussing the impacts of the areas of concern. It evaluates the techniques developed to address problems and puts forward suggestions for effective and balanced solutions to the questions of corporate nationality and personal scope of investment protection.

A large amount of foreign direct investment (FDI) has been poured into Africa in recent decades and these investments can come with adverse effects on the environment, human rights, and development. At the same time, investment treaties, entered into by African states and aimed at promoting and protecting FDI, seriously limit those states' ability to regulate such activities in the interests of affected communities. Whilst these tensions have generated global debate, little attention has been paid to the legal status of many of these investment treaties, and whether - given their constitutional and customary international law obligations to act in the public interest - African states truly have the capacity to conclude treaties which contain standards of investment protection expressly preventing or unduly abridging the exercise of their regulatory authority. Focusing on this question, The Investment Treaty Regime and Public Interest Regulation in Africa presents The Imperatives Theory: a legal, normative, and principled framework for rethinking the legal status, making, and reform of investment treaties and investment dispute settlement in Africa, with relevant and significant implications for the global investment treaty regime.

Caroline Henckels examines how investment tribunals should balance competing state and investor interests in determining state liability in regulatory disputes.

Foreign investors have a privileged position under investment treaties. They enjoy strong rights, have no obligations, and can rely on a highly efficient enforcement mechanism: investor-state dispute settlement (ISDS). Unsurprisingly, this extraordinary status has made international investment law one of the most controversial areas of the global economic order. This book sheds new light on the topic, by showing that foreign investor rights are not the result of unpredicted arbitral interpretations, but rather the outcome of a world-making project realized by a coalition of business leaders, bankers, and their lawyers in the 1950s and 1960s. Some initiatives that these figures planned for did not emerge, such as a multilateral investment convention, but they were successful in developing a legal imagination that gradually occupied the space of international investment law. They sought not only to set up a dispute settlement mechanism but also to create a platform to ground their vision of foreign investment relations. Tracing their normative project from the post-World War II period, this book shows that the legal imagination of these business leaders, bankers, and lawyers is remarkably similar to present ISDS practice. Common to both is what they protect, such as foreign investors' legitimate expectations, as well as what they silence or make invisible. Ultimate, this book argues that our canon of imagination, of adjustment and potential reform, remains closely associated with this world-making project of the 1950s and 1960s.