Proportionality in Investor-State Arbitration

Hardcover | September 18, 2015

byGebhard Bucheler

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While international investment law is one of the most dynamic and thriving fields of international law, it is increasingly criticized for failing to strike a fair balance between private property rights and the public interest. Proportionality is a tool to resolve conflicts between competingrights and interests. This book assesses its current role, its potential, and its limits in investor-State arbitration. Proportionality is often lauded for reconciling colliding interests. This book identifies three factors arbitrators should consider before engaging in a proportionality analysis: the rule of law, the risk of judicial law-making, and the availability of a value system that guides the proportionalityanalysis. Apart from making suggestions when arbitrators should apply proportionality and when not to, the book outlines what States can do to recalibrate the balance between private property rights and the public interest if they wish to do so without dismantling the current system ofinvestor-State arbitration. Proportionality in Investor-State Arbitration considers whether and to what extent the notion of general principles of law within the meaning of Article 38(1)(c) of the ICJ Statute and the concept of systemic integration enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treatiesprovides a valid legal foundation for applying proportionality in investor-State arbitration.

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While international investment law is one of the most dynamic and thriving fields of international law, it is increasingly criticized for failing to strike a fair balance between private property rights and the public interest. Proportionality is a tool to resolve conflicts between competingrights and interests. This book assesses its ...

Gebhard Bucheler practices international arbitration with the Munich law firm Wach + Meckes LLP, which he joined from the Paris office of Freshfields Bruckhaus Deringer LLP, where he was an associate in the international arbitration and public international law groups from 2010 to 2013.
Format:HardcoverDimensions:352 pages, 9.21 × 6.14 × 0.98 inPublished:September 18, 2015Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0198724330

ISBN - 13:9780198724339

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Table of Contents

1. Introduction2. The System of Investor-State Arbitration3. Proportionality as a General Principle of Law4. Proportionality and the Concept of Systemic Integration5. Proportionality and Expropriation6. Proportionality and the FET Standard7. Proportionality and NPM Clauses: Article XI of the Argentina-US BIT8. Proportionality and the Customary International Law Defence of Necessity9. Summary and Concluding Remarks