International Investment Law

This course introduces students to the law and practice of the international legal regime protecting cross-border investments. Since 1959, states have concluded more than 3,000 treaties aimed at facilitating investment-related capital flows between countries in the service of economic development. These treaties contain a relatively standardized set of legal obligations circumscribing the permissible actions of states in their dealings with foreign investors. Where these obligations are violated, foreign investors may directly claim compensation from states in international arbitration proceedings. Investors may sometimes also benefit from legal protections under investor-state contracts or domestic investment statutes. This course looks at all three types of investment protection regimes and considers the benefits and drawbacks of each.

In particular, the course examines: (1) the theoretical and historical background behind the development of the contemporary international investment law regime; (2) the policy justifications for the regime, along with critiques of those justifications; (3) the institutions and procedural rules that apply to investor-state arbitration; (4) the most common substantive standards governing the investor-state relationship under investment treaties (i.e. national treatment, most-favored nation treatment, expropriation, fair and equitable treatment, umbrella clauses, and free transfer provisions); (5) defenses governments can raise in response to investor claims; (6) the relationship between the investment law regime and other international legal regimes, such as those governing human rights, international trade, environmental protection, and the international law of state responsibility; and (7) international investment law's interactions with and implications for domestic legal systems, with a special emphasis on questions of sovereignty, governmental policy-making space, and democratic legitimacy and accountability in decision-making. The course presents these topics primarily through the in-depth exploration of key investment texts and controversial investor-state arbitration decisions. Scholarly perspectives on the regime are also considered.
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