Investor State Law and Arbitration

Investor-State Arbitration also referred to as "International Investment Arbitration" represents a significant development in international dispute resolution. The fact that an investor, either an individual or a corporate entity, may have standing to enforce international law obligations, and then receive monetary compensation from a state, is a relatively new phenomenon in the development of international law.

Investor-state arbitration, as a species of international dispute resolution has acquired special significance in recent years. On the one hand, the recent US$50 billion award against Russia in the Yukos arbitration demonstrates the far-reaching powers of an investor-state tribunal. On the other hand, there is an ongoing debate relating to the power of three unelected individuals (i.e., the arbitral tribunal) who review decisions of lawfully-elected representatives in matters that touch upon a state?s sovereignty. The recent arguments for restructuring investor-state arbitration in the context of the Trans-Atlantic Trade and Investment Partnership (TTIP) negotiations amplify this debate.

This lecture will examine the nuts and bolts of investor-state arbitration. There are two broad themes to be considered each week:
1) What implications would a particular issue have for a sovereign's police powers in relation to the rights for a foreign investor? Does a particular interpretation of a provision in an international investment agreement impede a state's police powers? Does it arbitrarily restrict the rights of a foreign investor? Is there an interpretation which may appropriate balance the protection of foreign investment while preserving a state's regulatory and police powers?
2) Another underlying theme that students should consider in every lecture is whether the existing model for investor-state arbitration is a sustainable model. This proposition involves several sub-components that need to be examined: Are there any deficiencies in the model? Can these deficiencies be remedied? Are there other models (e.g., court model) that would be more desirable? Should we abandon the existing arbitral model altogether or should we modify it?

Students will be encouraged to debate the different interpretations by tribunals. The course will take a neutral approach to the various interpretations and various debates on investor-state arbitration while encouraging students to form their own opinion in the light of the jurisprudence and debates. Evaluation will be based on class attendance, class participation, and a final examination.

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ISBN: 9781108823203
Title: International investment law and arbitration : commentary, awards, and other materials
Authors: Lim, C. L.
Publisher: Cambridge University Press
Copyright Date: 2021
Please note there is no comprehensive book so we supplement the course with slide decks that provide you with additional information. The main reading does not provide context for cases and so we try and supplement with at least one case per topic.

Students are expected to attend the lecture regularly and on time. Students are expected not to miss more than two classes without a good reason. Students missing more than two classes are expected to explain the reasons to us. Students are expected to have completed the readings and thought about the issues to discuss them in class. We will monitor and encourage different students with differing points of views to participate. We want to encourage a wide range of participation but at the same time we do not want a few voices to monopolize the discussion. Please note we cannot accommodate all requests to participate in class. This is inevitable as the class is large and we have to ensure that materials are appropriately addressed. Browsing the internet, tardiness in class, late attendance, lack of interest, talking with others in class are prohibited.