Yearbook on International Investment Law & Policy, 2013-2014 PDF
Preview Yearbook on International Investment Law & Policy, 2013-2014
YEARBOOK ON INTERNATIONAL INVESTMENT LAW & POLICY 2013–2014 Yearbook on International Investment Law & Policy andrea k. bjorklund, editor L. Yves Fortier Chair in International Arbitration and International Commercial Law, Mcgill University Faculty of Law, Montreal Senior Fellow, Columbia Center on Sustainable Investment (CCSI), New York Daniel Litwin, Managing Editor Research Fellow, CCSI Advisory Board José E. Alvarez George A. Bermann New York University School of Law, New York City Columbia Law School, New York City Rudolf Dolzer Ahmed S. El Kosheri University of Bonn Kosheri, Rashed and Riad, Cairo Emmanuel Gaillard Michael Hwang, SC Shearman & Sterling LLP, Paris Barrister & Arbitrator, Singapore Gabrielle Kaufmann-Kohler Carolyn B. Lamm University of Geneva Law School White & Case LLP, Washington, D.C. Andreas F. Lowenfeld, d. June 2014 Petros C. Mavroidis New York University School of Law, New York City Columbia Law School, New York City Theodore H. Moran Jan Paulsson Georgetown School of Foreign Service, Washington, D.C. Freshfields Bruckhaus Deringer LLP, Paris Daniel M. Price W. Michael Reisman Rock Creek Global Advisors LLC, Washington, D.C. Yale Law School, New Haven Manfred Schekulin Christoph Schreuer Austrian Federal Ministry of Economy, Zeiler Partners, Vienna Family and Youth, Vienna Stephen M. Schwebel Muthucumaraswamy Sornarajah Independent Arbitrator and Counsel, Washington, D.C. National University Singapore Law School Detlev F. Vagts, d. August 2013 Francisco Orrego Vicuña Harvard Law School, Cambridge Heidelberg Center, Santiago Louis T. Wells Harvard Business School, Boston Karl P. Sauvant, Founding Editor of the Yearbook Columbia Center on Sustainable Investment, New York Editorial Committee N. Jansen Calamita Investment Treaty Forum, British Institute of International and Comparative Law, London Lise Johnson Peter Muchlinski CCSI, New York School of Oriental and African Studies Law School, London Ucheora Onwuamaegbu Federico Ortino Arent Fox, LL.P., Washington, DC King’s College London School of Law Lisa E. Sachs Abby Cohen Smutny CCSI, New York White & Case LLP, Washington, D.C. columbia law school editorial staff niccolò pietro castagno, senior editor eno usoro, senior editor v. grace davis, editor farrukh malik, editor hiroyuki ota, editor gabriela lopez, editor claudie tirefort, editor mcgill university faculty of law editorial staff sarah kettani, editor adam plenkiewicz, editor david st-onge, editor alexander spraggs, editor lukas vanhonnaeker, editor Peer Reviewers The Editorial Committee of the Investment Yearbook thanks all those who helped in the preparation of this publication and especially the peer reviewers, who include: Reuven Avi-Yonah Josh Kallmer Jeswald Salacuse Lorand Bartels Mark Kantor Karl Sauvant Bertram Boie Meg Kinnear Jeremy Sharpe Jonathan Bonnitcha Céline Lévesque Muthucumaraswamy Anna Joubin-Bret Roberto Aguirre Luzi Sornarajah Lee M. Caplan Kate Miles Margrete Stevens Aaron Cosbey Timothy Nelson Leon Trakman Rudolf Dolzer Luke Nottage Anne van Aaken Zachary Douglas Martins Paparinskis Samuel Wordsworth Mike Gerrard Joost Pauwelyn Katia Yannaca-Small Andrew Guzman Miguel Perez Justin Jacinto Matthew Porterfield COLUMBIA CENTER ON SUSTAINABLE INVESTMENT The Columbia Center on Sustainable Investment (CCSI) is a leading applied research cen- ter and forum for the study, practice and discussion of sustainable international investment. The CCSI focuses on analyzing important topical policy-oriented issues and constructing and implementing an investment framework that promotes sustainable development and the mutual trust needed for long-term investments that can be practically adopted by governments, companies and civil society. The Center undertakes its mission through interdisciplinary research, advisory projects, multistakeholder dialogue, educational programs, and the devel- opment of resources and tools. The Center’s website is found at http://ccsi.columbia.edu/. YEARBOOK ON INTERNATIONAL INVESTMENT LAW & POLICY 2013–2014 EDITED BY Andrea K. Bjorklund 1 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016 © Oxford University Press 2015 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. ISBN 978-0-19-026577-9 Printed in the United States of America on acid-free paper Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) If you are interested in contributing content to be considered for future editions of the Yearbook on International Investment Law & Policy, please contact us at [email protected] You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com If you would like to be placed on Standing Order status for the Yearbook on International Investment Law & Policy whereby you will automatically receive and be billed for new annual volumes as they publish, please contact a Customer Service Representative. In the United States, Canada, Mexico, Central and South America, contact: Customer Service Oxford University Press USA 2001 Evans Road Cary, NC 27513 Email: [email protected] Phone (toll free in US): 1-866-445-8685 Phone (international customers): 1-919-677-0977 Fax: 1-919-677-1303 In the United Kingdom, Europe, and Rest of World, contact: Customer Service Oxford University Press Saxon Way West, Corby Northants, NN18 9ES United KingdomEmail: [email protected] Phone: +44 1536 741017 Fax: +44 1536 454518 TABLE OF CONTENTS Submission Policy xxv Contributors xxvii Foreword by Louis T. Wells xxxiii Preface by the Editorial Committee xxxvii PART ONE 1. Trends in International Investment and the Activities of Multinational Enterprises: 2013–2014 3 Michael V. Gestrin 2. International Investment Agreements, 2013: A Review of Trends and New Approaches 25 Lise Johnson and Lisa Sachs 3. International Investment Law and Arbitration: 2013 in Review 69 Ian A. Laird, Borzu Sabahi, Frédéric G. Sourgens, Nicholas J. Birch, Kabir Duggal, and Joanna Coyne PART TWO British Institute of International and Comparative Law Introduction 155 N. Jansen Calamita viii Table of Contents 4. The Principle of Proportionality and the Problem of Indeterminacy in International Investment Treaties 157 N. Jansen Calamita 5. Proportionality, Reasonableness, and Standards of Review in Investment Treaty Arbitration 201 Valentina Vadi 6. Role of Investors’ Legitimate Expectations in Defense of Investment Treaty Claims 229 Claudia Annacker PART THREE General Articles 7. Balancing Investor Protection and Regulatory Freedom in International Investment Law: The Necessary, Complex, and Vital Search for State Purpose 251 Jürgen Kurtz 8. Jurisprudential Interaction between ICSID Tribunals and the International Court of Justice 305 Jure Zrilič 9. The Migration of Constitutional Ideas: The Strange Case of Proportionality in International Investment Law and Arbitration 337 Valentina Vadi 10. Inconsistency in Investor-State Awards and the Role of State Interpretations: The Example of the Mexican Sweetener Trio of Cases under NAFTA 361 Céline Lévesque 11. States Strike Back—Old and New Ways for Host States to Defend against Investment Arbitrations 401 Lars Markert and Catharine Titi 12. Revisiting the Countermeasures Defense in Investor-State Disputes: Approach and Analogies 437 Preeti Bhagnani 13. The Political Economy of Crises and the International Law of Necessity after the Great Recession 473 Alberto Alvarez-Jimenez
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