In recent years, investor-state tribunals have often permitted shareholders' claims for reflective loss despite the well-established principle of no reflective loss applied consistently in domestic regimes and in other fields of international law. Investment tribunals have justified their decisions by relying on definitions of 'investment' in investment agreements that often include 'shares', while the no-reflective-loss principle is generally justified on the basis of policy considerations pertaining to the preservation of the efficiency of the adjudicatory process and to the protection of other stakeholders, such as creditors. Although these policy considerations militating for the prohibition of shareholders' claims for reflective loss also apply in investor-state arbitration, they are curable in that context and must be balanced with policy considerations specific to the field of international investment law that weigh in favor of such claims: the protection of foreign investors in order to promote trade and investment liberalization.

The vitality or, alternatively, vitiation of the international arbitral process remains a pressing subject. The explosion of inter-State, investor-State, and international commercial arbitration in recent years magnifies the importance of the subject. This second edition combines the historical analysis of the first edition with a survey of the continued salience and contemporary developments for each of the three problems identified: (i) the severability of the arbitration agreement; (ii) denial of justice (and now other possible breaches of international law) by governmental negation of arbitration; and (iii) the authority of truncated international arbitral tribunals. The international arbitral process continues to be fortified against unilateral attempts to derail it and, to that end, this book will be a valuable guide for practitioners and scholars alike.

The threat posed by the recent rise of transnational non-state armed groups does not fit easily within either of the two basic paradigms for state responses to violence. The civilian paradigm focuses on the interception of demonstrable immediate threats to the safety of others. The military paradigm focuses on threats posed by collective actors who pose a danger to the state's ability to maintain basic social order and, at times, the very existence of the state. While the United States has responded to the threat posed by non-state armed groups by using tools from both paradigms, it has placed substantially more emphasis on the military paradigm than have other states. While several reasons may contribute to this approach, one may be the assumption that a state must use each set of tools strictly according in accordance with the principles that underlie each paradigm. Implicit in this assumption may be the sense that the only alternative to the civilian paradigm is the unqualified military one. The chapters in this book suggest, however that we need not see the options as confined to this binary choice. It may be profitable to consider borrowing elements from each paradigm on some occasions to act more expansively than the conventional civilian paradigm allows, but less expansively than the conventional military paradigm would permit. At the same time, the mixing of the categories comes with its own ethical and legal risks that should be scrutinized.

In this comprehensive comparative study, Ronan Feehily analyses the legal and regulatory issues surrounding international commercial mediation and discusses their implications in a range of settings. While existing literature tends to cover mediation in general, Feehily places the commercial mediation process in its legal and regulatory context, offering an original contribution to the field. The book identifies the controversies that arise from the mediation process across numerous jurisdictions and discusses them in detail. Comparing the mediation process in Europe, North America and Australia, as well as other common, civil and 'mixed' jurisdictions, Feehily demonstrates where systemic differences are transcended and where they are significant. Organised systematically and written in an accessible style, Feehily offers an international, holistic guide to the commercial mediation process.

In recent years, investor-state tribunals have often permitted shareholders' claims for reflective loss despite the well-established principle of no reflective loss applied consistently in domestic regimes and in other fields of international law. Investment tribunals have justified their decisions by relying on definitions of 'investment' in investment agreements that often include 'shares', while the no-reflective-loss principle is generally justified on the basis of policy considerations pertaining to the preservation of the efficiency of the adjudicatory process and to the protection of other stakeholders, such as creditors. Although these policy considerations militating for the prohibition of shareholders' claims for reflective loss also apply in investor-state arbitration, they are curable in that context and must be balanced with policy considerations specific to the field of international investment law that weigh in favor of such claims: the protection of foreign investors in order to promote trade and investment liberalization.

In this comprehensive comparative study, Ronan Feehily analyses the legal and regulatory issues surrounding international commercial mediation and discusses their implications in a range of settings. While existing literature tends to cover mediation in general, Feehily places the commercial mediation process in its legal and regulatory context, offering an original contribution to the field. The book identifies the controversies that arise from the mediation process across numerous jurisdictions and discusses them in detail. Comparing the mediation process in Europe, North America and Australia, as well as other common, civil and 'mixed' jurisdictions, Feehily demonstrates where systemic differences are transcended and where they are significant. Organised systematically and written in an accessible style, Feehily offers an international, holistic guide to the commercial mediation process.

This Cambridge Companion explores the main senses of the term 'international arbitration'; including the arbitration of private commercial disputes, disputes between a State and a foreign investor, disputes between States and also between a State and its parts. It treats these various forms as being inter-related, if not always conceptually, then as a matter of history, rather than as collective victims of imprecise language. The book touches not only on current debates but also more foundational aspects, such as the tension between party autonomy and State authority, and the pacifist roots of modern international arbitration. Thus, it aims to offer a concise survey of the history, the main issues as well as the latest developments in a single, handy volume. It will be an invaluable introduction to the subject for students studying international arbitration, commercial law and international law, and also lawyers and the general reader.

This Cambridge Companion explores the main senses of the term 'international arbitration'; including the arbitration of private commercial disputes, disputes between a State and a foreign investor, disputes between States and also between a State and its parts. It treats these various forms as being inter-related, if not always conceptually, then as a matter of history, rather than as collective victims of imprecise language. The book touches not only on current debates but also more foundational aspects, such as the tension between party autonomy and State authority, and the pacifist roots of modern international arbitration. Thus, it aims to offer a concise survey of the history, the main issues as well as the latest developments in a single, handy volume. It will be an invaluable introduction to the subject for students studying international arbitration, commercial law and international law, and also lawyers and the general reader.

This book presents an in-depth analysis of the environmental issues raised in the South China Sea Arbitration Awards, which have not attracted as much attention in the Philippines as the "nine-dash line". Specifically it focuses on the conservation of endangered species and the conservation of fragile ecosystems in the South China Sea. The aims of the book are two-fold. First, it seeks to explain the Philippine perspective on the environmental aspects of its dispute with China. The book reconstructs the Philippine perspective in part by consulting several dozens of the hundreds of documents that the Philippines submitted to the Tribunal. Some of these documents were classified as secret and would thus have never been made available to the public had it not been for the arbitration. Second, it attempts to explain the decisions of the Tribunal on jurisdiction and admissibility as well as the decisions on the merits of the dispute. The book does this by consulting not only the two Awards but also the hundreds of pages of transcripts, expert reports, supplemental submissions and written responses by the Philippines to questions posed by the Tribunal.

This book explores how the Permanent Court of International Justice, the International Court of Justice, the European Court of Human Rights, and investment treaty tribunals have used deference to recognise the decision making authority of States. It analyses the approaches to deference taken by these four international courts and tribunals in 1,714 decisions produced between 1924 and 2019 concerning alleged State interferences with private property. The book identifies a large number of techniques capable of achieving deference to domestic decision-making in international adjudication. It groups these techniques to identify seven distinct 'modes' of deference reflecting differently structured relationships between international adjudicators and domestic decision-makers. These differing approaches to deference are shown to hold systemic significance. They reveal the shifting nature and structure of adjudication under international law and its relationship to domestic decision making authority.

International investment law and arbitration is a rapidly evolving field, and can be difficult for students to acquire a firm understanding of, given the considerable number of published awards and legal writings. The first edition of this text, cited by courts in Singapore and Colombia, overcame this challenge by interweaving extracts from these arbitral decisions, treaties and scholarly works with concise, up-to-date and reliable commentary. Now fully updated and with a new chapter on arbitrators, the second edition retains this practical structure along with the carefully curated end-of-chapter questions and readings. The authors consider the new chapter an essential revision to the text, and a discussion which is indispensable to understanding the present calls for reform of investment arbitration. The coverage of the book has also been expanded, with the inclusion of over sixty new awards and judicial decisions, comprising both recent and well-established jurisprudence. This textbook will appeal to graduates studying international investment law and international arbitration, as well as being of interest to practitioners in this area.

The Iran-US Claims Tribunal, concerned principally with the claims of US nationals against Iran, is the most important international claims tribunal to have sat in over half a century. Its jurisprudence is bound to make a uniquely important contribution to international law and, in particular, the law relating to aliens, treaty law, and international arbitral procedure. Volume 39 also contains the decisions of the Tribunal's appointing authority in four recent arbitrator challenges and, for the first time, includes the pleadings submitted by the parties and the challenged arbitrator. The series is the only complete and fully indexed report of the decisions of this unique Tribunal. These reports are essential for all practitioners in the field of international claims, academics in private and public international law and comparative lawyers, as well as all Governments and law libraries.

Governments are rightly discussing reform of investment treaties, and of the incredibly powerful system of 'investor-state dispute settlement' (ISDS) upon which they rest. At their core, ISDS treaties are flawed because they very firmly institute wealth-based inequality under international law. In this book, Van Harten explores these claims in the light of the history of early ISDS treaties showing their ties to decolonization and, at times, extreme violence and authoritarianism. Focusing on early ISDS lawsuits and rulings, it is revealed how a small group of lawyers and arbitrators worked to create the legal foundations for massive growth of ISDS since 2000. ISDS-based protections are examined in detail to demonstrate how they give exceptional advantages to the wealthy. Various examples are also offered of how the protections have been used to reconfigure state decision-making and shift sovereign minds in favour of foreign investors. Lastly, the ongoing efforts of governments to reform ISDS are surveyed, with a call to go further or, best of all, to withdraw from the treaties. This book is essential reading for anyone wanting to know more about the shady world of investment protection.

Der Band befasst sich mit den verschiedenen prozess- und materiell-rechtlichen Fragestellungen im Zusammenhang mit der Beendigung von Schiedsvereinbarungen. Ausgehend von einer grundlegenden Analyse von Rechtsnatur und privatautonomer Charakteristik der Schiedsvereinbarung arbeitet der Autor die einzelnen Beendigungsmoeglichkeiten aus. Die Untersuchung gliedert sich dabei in drei Hauptteile: die gemeinschaftliche (konsensuale Beendigung) durch die Parteien, einseitige Beendigungsmoeglichkeiten sowie das Erloeschen der Schiedsvereinbarung ipso iure.

Everyone condemns what they perceive as 'abuse of rights', and some would elevate it to a general principle of law. But the notion seldom suffices to be applied as a rule of decision. When adjudicators purport to do so they expose themselves to charges of unpredictability, if not arbitrariness. After examining the dissimilar origins and justification of the notion in national and international doctrine, and the difficulty of its application in both comparative and international law, this book concludes that except when given context as part of a lex specialis, it is too nebulous to serve as a general principle of international law.

Evangelos Raftopoulos explores international negotiation as a structured process of relational governance that generates international common interest between and among international participants and in relation to the international public order. He challenges prescriptive models of negotiation - developed in international relations and positivistic approaches to international law, which artificially separate treaties from negotiation in the name of 'objectivity' - and opens a window for looking at international negotiations from a novel, international law perspective. Using an interdisciplinary approach that incorporates law, philosophy, politics, and linguistics, he proposes a holistic, theoretical model of multilateral international negotiation that not only offers a 'subjective' view of international law in practice but also demonstrates the importance of understanding the horizontal normativity of international ordering. This work should be read by academics and practitioners of international law and negotiations, officials of international organizations, and anyone else interested in international law and international relations.

This is the third revised edition of what was described by the English Court of Appeal in C v D as the "standard work" on Bermuda Form excess insurance policies. The Form, first used in the 1980s, covers liabilities for catastrophes such as serious explosions or mass tort litigation and is now widely used by insurance companies. It is unusual in that it includes a clause requiring disputes to be arbitrated under English procedural rules in London but subject to New York substantive law. This calls for a rare mix of knowledge and experience on the part of the lawyers involved, each of whom is required to confront the many differences between English and US law and legal culture. In addition, since the awards of arbitrators are confidential and are not subject to the scrutiny of the courts, the book helps professionals understand the Form's lengthy and complex provisions. The book, first published in 2004, was the first comprehensive analysis of the Bermuda Form. It is frequently cited in Bermuda Form arbitrations and was the joint winner in 2012 of British Insurance Law Association Book Prize for the most notable contribution to literature in the field of law as it affects insurance. It offers a detailed commentary on how the Form is to be construed, its coverage, the substantive law to be applied, the limits of liability, exceptions, and, of course, the procedures to be followed during arbitration proceedings in London. The book will prove invaluable to lawyers, risk managers, and executives of companies which purchase insurance on the Bermuda Form, and to clients, lawyers or arbitrators involved in disputes arising therefrom.

Judicial acts of states are becoming increasingly subjected to international investment claims. This book focuses on distinctive particularities of these claims. Although there are no special responsibility regimes for different functions of the state, the application of investment treaty standards and the threshold for their breach may vary depending on the function involved. Accordingly, in order for the state to incur responsibility for a wrongful act committed in the exercise of its judicial function, there are some specific conditions that should be met: the investor must establish that the state is responsible for a breach attributable to the state; the investment tribunal has jurisdiction over the particular dispute; and the damage that the investor has suffered is a result of the particular breach. Berk Demirkol addresses questions in relation to the substance, jurisdiction, admissibility, and remedies in cases where state responsibility arises from a wrongful judicial act.

Evangelos Raftopoulos explores international negotiation as a structured process of relational governance that generates international common interest between and among international participants and in relation to the international public order. He challenges prescriptive models of negotiation - developed in international relations and positivistic approaches to international law, which artificially separate treaties from negotiation in the name of 'objectivity' - and opens a window for looking at international negotiations from a novel, international law perspective. Using an interdisciplinary approach that incorporates law, philosophy, politics, and linguistics, he proposes a holistic, theoretical model of multilateral international negotiation that not only offers a 'subjective' view of international law in practice but also demonstrates the importance of understanding the horizontal normativity of international ordering. This work should be read by academics and practitioners of international law and negotiations, officials of international organizations, and anyone else interested in international law and international relations.

The guidelines on party representation are one of three key publications published by the IBA and are commonly referred to or adopted as good practice in international arbitration. This user-friendly handbook to the guidelines will benefit the understanding and practical application of arbitration protocol in the legal community. Written by a respected and experienced arbitration practitioner, this is a companion volume to The IBA Rules on the Taking of Evidence in International Arbitration (2013) and combines commentary from the drafting committee, additional analysis of the guidelines and tabular comparative material addressing the interaction with Major Professional Conduct Rules and Major Institutional Rules. It is a convenient and invaluable resource for best practice on the duties of arbitrators, institutions and other representatives in this field.

Investment treaty arbitration is fast becoming one of the most common methods of dispute settlement in international law. Despite having ancient roots, the private interests in international investment relations remain in conflict with the need for the recognition of the public international law features of the arbitral procedure. This book, which presents an account of investment treaty arbitration as a part of public international law - as opposed to commercial law - provides an important contribution to the literature on this subject. Eric De Brabandere examines the procedural implications of conceiving of investment treaty arbitration in such a way, with regards to issues such as the principles of confidentiality and privacy, and remedies. The author demonstrates how the public international law character of investment treaty arbitration derives from and has impacted upon the dispute settlement procedure.

This concise yet comprehensive textbook introduces the reader to the law and practice of international arbitration. Arbitration is a complex field due to the variety of disciplines involved and necessitates an approach that takes nothing for granted. Written by a renowned scholar and practitioner, this book explains the divergent issues of civil procedure, contracts, conflict of laws, international law amongst others in an accessible manner. Focusing mainly on international commercial arbitration, the book also features a distinct chapter on consumer and online arbitration and an equally comprehensive chapter on international investment arbitration.

As in its first edition, this book traces the contours of select US common law doctrinal developments concerning international commercial arbitration. This new edition supplements the foundational work contained in the first edition in order to produce a broader and deeper work. The author explores how the US common law may help bridge cross-cultural legal differences by focusing on the need to address these contrasting approaches through the nomenclature and goal of securing equality between party-autonomy and arbitrator discretion in international commercial arbitration. This book thus focuses on the common law development of arbitrator immunity, as well as the precepts of party-initiative and -autonomy forming part of the US common law discovery rubric that may contribute to promoting expediency, efficiency and transparency in international commercial arbitration proceedings. It does so by carefully analyzing, among other things, the International Bar Association (IBA) Rules on Evidence Gathering, the Prague Rules, and the role of 28 USC. 1782 in international arbitration.

Arbitration Law in America: A Critical Assessment is a source of arguments and practical suggestions for changing the American arbitration process. The book argues that the Federal Arbitration Act badly needs major changes. The authors, who have previously written major articles on arbitration law and policy, here set out their own views and argue among themselves about the necessary reforms of arbitration. The book contains draft legislation for use in international and domestic arbitration and a detailed explanation of the precise justifications for proposed legislative changes. It also contains two proposals that might be deemed radical - to ban arbitration related to the purchase of products by consumers and to prohibit arbitration of employment disputes. Each proposal is vetted fully and critiqued by one or more of the other co-authors.

This book outlines the principles behind the international law of foreign investment. The main focus is on the law governed by bilateral and multilateral investment treaties. It traces the purpose, context, and evolution of the clauses and provisions characteristic of contemporary investment treaties, and analyses the case law, interpreting the issues raised by standard clauses. Particular consideration is given to broad treaty-rules whose understanding in practice has mainly been shaped by their interpretation and application by international tribunals. In addition, the book introduces the dispute settlement mechanisms for enforcing investment law, outlining the operation of Investor-State arbitration. Combining a systematic analytical study of the texts and principles underlying investment law with a jurisprudential analysis of the case law arising in international tribunals, this book offers an ideal introduction to the principles of international investment law and arbitration, for students, scholars, and practitioners alike.