September 2013

Book Symposium Investment Law: Comments on Freya Baetens’ Introductory Chapter

[Laurence Boisson de Chazournes is Professor of international law at the Faculty of Law of the University of Geneva, Switzerland]. In her chapter, Freya Baetens notes that it is necessary to scrutinize "how concepts, principles and rules developed in the context of other sub-fields could (or should) inform the content of investment law." This scrutiny is well-deserved, as the interrelations of other bodies of norms with the corpus of norms related to investment law have gained traction but remains ambiguous. The notion of cross-fertilization and that of legal regimes informing one another are abundantly referred to. While I share this a-hierarchical vision (with the caveat of the possible application of jus cogens and erga omnes obligations) of the relationships among different bodies of law, one should be cautious so as not to transform a land of its own—i.e., international law—into an archipelago of islands more or less connected, which needs artificially created pathways.  There is no reason for international investment law, as a field of public international law à part entière, not to be incorporated in the universe of international law. In addition to stressing the need for decision-makers to adopt a systemic view of such interrelationships, Freya highlights the key role that rules of interpretation play in promoting a more unitary approach.  Much more attention should be paid to the set of rules as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties.  These rules should be observed as a set of objective rules (to be interpreted in conformity with the rules they provide for) and not as a menu left to the taste and desire of tribunals. I would like to draw attention to the concept of mutual supportiveness which has emerged as an interpretative tool. Freya's viewpoint evokes it. It constitutes a lens through which international law is increasingly observed. Mutual supportiveness implies that States and arbitrators should refrain, whenever possible, from construing conflicts between international investment obligations and other legal interests. Moreover, there should be mutual adjustments: on each side, there should be an attempt to prevent the eruption of a conflict. This can be done in an ex ante manner at the time of the negotiation. Freya's chapter provides some examples in this respect. States bear an important responsibility in this context. The prevention of the eruption of a conflict can also be done in an ex post manner when a dispute is to be settled.  This is where the rules of interpretation play a key role.  It undoubtedly focuses attention on the powers of tribunals.  The wording and content of investment treaties is of crucial importance in an interpretative context. The principle of mutual supportiveness has most prominently emerged in the relationships between international trade and the environment, but is not limited to this area.  For example, the OECD has incorporated mutual supportiveness as a primary principle in its Green Growth Strategy Report (2011), encouraging Member States to foster compatibility between their investment-related and environmental policy goals. I then would like to make two observations related to two so-called sub-fields. One of these deals with human rights considerations, while the other one concerns international humanitarian law. 

Book Symposium Investment Law: No Law is an Island, Entire of Itself – How International Investment Law Interacts with Other Fields of International Law

[Dr Freya Baetens is Associate Professor of Law at Leiden Law School, Director of Studies at Leiden University College (LUC) and Head of the LUC Research Centre at Leiden University.] The last two decades have witnessed an exponential increase in investor-State arbitrations. Investment tribunals now regularly render binding decisions as to whether States have violated protection standards guaranteed under various investment treaties. The pace by which these tribunals deliver their awards has turned investment law into one of the most dynamic fields of public international law. Developments in other sub-fields of international law influence the development of international investment law, but also vice versa, changes in investment law have an impact on the evolution of other fields of international law. As the majority of publications focuses on the application and interpretation of investment protection standards, the interaction of international investment law with other sub-fields of international law has not been so extensively explored yet. To fill this gap, academics and practitioners contributing to this collection examine specific links between investment law and such other rules of international law. In particular, this book scrutinizes how concepts, principles and rules developed in the context of other sub-fields of international law could (or should) inform the content of investment law. Solutions conceived for resolving problems in other settings may provide instructive examples for addressing current problems in the field of investment law, and vice versa. This serves as an aid for several contributors to determine whether various sub-fields of public international law, particularly international investment law, are open to cross-fertilisation, or, whether they are evolving ever further into self-contained regimes. This book contains a peer-reviewed selection of the most innovative and outstanding papers resulting from presentations at the international conference on ‘The Interaction of International Investment Law with Other Fields of Public International Law’ which took place on 8 and 9 April 2011 at Leiden University. This conference brought together experts from the field of international investment law with renowned scholars and practitioners from other sub-fields of international law. The five parts of this volume each address one particular interrelationship: the authors of each part have had the opportunity to examine each other’s ideas so as to guarantee a coherent approach to the matter, thereby avoiding a fragmented discussion. One important comment received in the course of preparing this book/volume was that a book such as this one could pursue two goals: (1) an overall - single volume - assessment of the literature ‘with some extra edge’; or (2) a selection of the most relevant issues. So, in which category does this work belong?