International Investment Law in the Arbitration Process

International investment law, as a subdivision of public international law, has been intensively developed by modern states over the last half a century prevailingly at the bilateral and partly multilateral levels. More than three thousand BITs and a number of multilateral investment treaties have been concluded at that time. This is fairly one of the most dynamic fields of international law.

Along with the intensive process of investment treaty-making, over the last two decades the unprecedented boom of investment arbitration has been seen. The broad concept of “investment” applied in investment treaties and the global increase in the number of investment treaties containing relevant arbitration provisions have been the objective factors that had a strong impact on the scope of subject matter and the number of disputing parties in investor-state arbitration. Also, despite some criticism, investment arbitration has gained considerable trust from investors that have filed hundreds of claims against states.

It is interesting to observe how arbitral tribunals assist sovereign states in building modern international investment law. States create primary rules of international law on operation and protection of investments, while investor-state tribunals, under the jurisdictional mandate from states, perform a special law-developing activity by elucidating the contents of treaty standards and treaty terms, by demonstrating the role of unwritten customary law rules and general principles of law in investment disputes.

Investment treaty policy and investor-state dispute resolution have been analyzed in numerous reports and research papers of international organizations such as the OECD, UNCTAD, IBA.

Investment arbitration, also called “investor-state arbitration”, “investment treaty arbitration”,4 has become the subject matter of enormous number of publications and commentaries. A continuing rise of investor-state case law makes this process ongoing. At present, it is hardly possible to embrace all the multiple facets of the modern international investment law and the current system of investment arbitration in one study.

This book is neither a textbook, nor a thesis. The purpose was to combine academic study with practical analysis of the selected topics which the author has been dealing with as an arbitration practitioner and a researcher of international investment law over the last several years.

The author warmly thanks Ms. Anastasiia Shymon for the assistance in preparation of this manuscript for publication.