It has always seemed to me there is insufficient study of the substance of investment treaties, i.e., what do the obligations mean, what is their impact, etc. I often hear that the principles are no different from what is found in domestic law, but that doesn't satisy me. If "fair and equitable treatment" is, to some extent, about "due process," what are the implications of having an enforceable international due process obligation?
I haven't read it yet, but based on the web site summary and table of contents, this book looks like it will help fill the gap:
Substantive Protection under Investment Treaties provides the first systematic analysis of the consequences of the substantive protections that investment treaties provide to foreign investors. It proposes a new framework for identifying and evaluating the costs and benefits of differing levels of investment treaty protection, and uses this framework to evaluate the levels of protection for foreign investors implied by different interpretations of the fair and equitable treatment and indirect expropriation provisions of investment treaties. The author examines the arguments and assumptions of both supporters and critics of investment treaties, seeks to test whether they are coherent and borne out by evidence, and concludes that the 'economic' justifications for investment treaty protections are much weaker than is generally assumed. As such, the 'economic' objectives of investment treaties are not necessarily in tension with other 'non-economic' objectives. These findings have important implications for the drafting and interpretation of investment treaties.
- Proposes a new framework for understanding the costs and benefits of investment treaty protections
- Challenges the view that arbitral jurisprudence can be explained and rationalised by a coherent set of legal principles by demonstrating that arbitral tribunals have interpreted common investment treaty protections in different ways
- Provides practical recommendations for the drafting and amendment of investment treaties which are directly relevant to treaty negotiators and policy-makers
Table of Contents
1. Introduction
2. The structure of existing debate
3. A framework for evaluating different levels of investment treaty protection
4. Fair and equitable treatment
5. Indirect expropriation
6. Application of the framework and conclusions
7. Implications of the conclusions
8. The future of debate about investment treaties.
I don't know if I'll agree with everything the author says, but I like this line of inquiry. Here's a free paper by the author on what looks like a similar topic: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2138235
