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The Role of Customary International Law in the Field of Foreign Investment

The Role of Customary International Law in the Field of Foreign Investment I. INTnonUCTIC�N In spitc of the existence of an impressive nummer of investment-related treaties, including most prominently about 2500 bilateral investment treaties (BiTs),1 customary international law continues to play an important role in the protection of foreign investment for at least four reasons. First, BITS cover only about 13% of the bilateral relationships between the States composing the intemational Community.2 Second, there are virtually no BITS between developed countries, whereas several States that are important as investors or recipients of investment----such as Brazil and Japan-have ratified only a handful of BITS. Third, customary international law is important not only as possible legal basis of investment claims, but also as applicable law to disputes before both international and municipal tribunals over claims stemming from other legal sources. Fourth, customary rules constantly and intensely interact with bilateral and multilateral niles. Scholarly discussion tends to focus on the influence exercised by BITS on customary international law and largely neglect the other fomis of interaction between treaties and customary intemational law. This paper examines the formation and evolution of customary international law in the field of foreign investment (Parts 11 and 1) and its various forms interaction with international treaties, focussing mainly http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of World Investment and Trade Brill

The Role of Customary International Law in the Field of Foreign Investment

Journal of World Investment and Trade , Volume 8 (5): 25 – Jan 1, 2007
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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1660-7112
eISSN
2211-9000
DOI
10.1163/221190007X00143
Publisher site
See Article on Publisher Site

Abstract

I. INTnonUCTIC�N In spitc of the existence of an impressive nummer of investment-related treaties, including most prominently about 2500 bilateral investment treaties (BiTs),1 customary international law continues to play an important role in the protection of foreign investment for at least four reasons. First, BITS cover only about 13% of the bilateral relationships between the States composing the intemational Community.2 Second, there are virtually no BITS between developed countries, whereas several States that are important as investors or recipients of investment----such as Brazil and Japan-have ratified only a handful of BITS. Third, customary international law is important not only as possible legal basis of investment claims, but also as applicable law to disputes before both international and municipal tribunals over claims stemming from other legal sources. Fourth, customary rules constantly and intensely interact with bilateral and multilateral niles. Scholarly discussion tends to focus on the influence exercised by BITS on customary international law and largely neglect the other fomis of interaction between treaties and customary intemational law. This paper examines the formation and evolution of customary international law in the field of foreign investment (Parts 11 and 1) and its various forms interaction with international treaties, focussing mainly

Journal

Journal of World Investment and Trade – Brill

Published: Jan 1, 2007

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