The application of international law to state contracts with
foreign private companies was the cause of continuing controversy
throughout much of the twentieth century. State contractual
undertakings with foreign investors raise a number of legal issues
that do not fit well into the traditional pattern of international
law as a law between states, but which also cannot be
satisfactorily resolved by the exclusive application of the
municipal law of the contracting state. In recent years the
controversy has gained new prominence as a result of the advent of
a new form of international dispute settlement, namely the
mechanism of investment treaty arbitration. The main feature of
this model of dispute resolution is that foreign investors are
entitled to bring claims against states directly before
international arbitral tribunals. This model, which emerged
strongly in the late 1990s, has generated a rapidly expanding body
of arbitral case law and in the process become one of the most
significant new developments in modern international law. Many of
the disputes subject to investment treaty arbitration have their
origin in contractual commitments made by states toward foreign
investors. At the same time international commercial arbitration
continues to be the preferred means of dispute resolution in
contracts between foreign investors and states or state entities.
This book explores how contract claims against states are dealt
with in the two parallel processes of treaty-based and
contract-based arbitration. The book charts the development of
commercial arbitration into an international legal remedy in this
field, discusses the theoretical problems which it creates for
international law, and outlines the most significant substantive
features of the international law applicable to contract claims as
developed by arbitral tribunals on the basis of treaty standards
and customary law.
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