Contracting with Sovereignty

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.

1. Introduction
1.1 The Topic
1.2 Approach-International Law as 'Process'
1.3 Arbitral Practice as a Source of Law
1.4 Interpretation-Applied and Constructed Ratio
1.5 Materials
2. History and Development-A Hybrid Genealogy
2.1 Introduction
2.2 Investment Protection under Classical International Law-The Doctrine of Diplomatic Protection
2.3 Mixed Claims Commissions
2.4 Internationalised Commercial Arbitration
2.5 Convergence of Practices-Showing the Way to Contemporary 'Investment Treaty Arbitration'
3. A Theoretical Discourse-Conceptualising the Applicability of International Law to State Contracts
3.1 International Law and State Contracts-Challenging Traditional Doctrine
3.2 The Concept of Internationalisation
3.3 Conflicting Perspectives of International Law
3.4 The Applicability of International Law to State Contracts-A Reconceptualisation
3.5 The Authority of Arbitral Tribunals to Apply International Law
4. Procedural Aspects-Jurisdiction and Enforceability
4.1 Introduction
4.2 International Commercial Arbitration-Detaching Arbitral Authority from Municipal Law
4.3 Jurisdiction and Enforcement under the ICSID Convention
4.4 Investment Treaty Jurisdiction over Contract Claims
4.5 Overlapping Jurisdictions-Contractual Jurisdiction Clauses and Investment Treaty Jurisdiction
5. Substantive Principles Applicable to Contract Claims-The Concept of 'Legitimate Expectations'
5.1 Introduction
5.2 Contract Claims and the 'Expropriation Standard'
5.3 Umbrella Clauses-Elevating Contract Claims into Treaty Claims
5.4 Protection of Legitimate Expectations under the Fair and Equitable Treatment Standard
5.5 Customary International Law-The Internationalised Contract and Protection of Acquired Rights
5.6 The Compensation Standard
6. Contractual Restriction of Public Powers
6.1 Sovereignty and Commitment
6.2 The Notion of Sovereignty
6.3 Permanent Sovereignty and the Right to Expropriate Foreign Investment
6.4 'Police Powers' and Protection of Legitimate Expectations
6.5 Reserved Powers as a Principle of Interpretation
7. Summary and Final Comments
7.1 Introduction
7.2 The International Legal Process of Contract Claims-Summary of Chapters 2, 3 and 4
7.3 Substantive Law and Teleology-Summary of Chapters 5 and 6
7.4 A Concluding Comment

“...the book represents throughout an admirable undertaking of examining the burning issues of state contracts today in the context of both contract and treaty claims. The author has provided in his discussion analytical and critical insights into those issues in such an engaged manner that makes the book distinctive. Serious scholars of international law (both private and public) with an interest in state contracts and arbitration will find the book enormously valuable.” –  A. F. M. Maniruzzaman, Banking and Finance Law Review, Volume 28

“...a clearly written and interesting contribution to the ongoing debate about the nature, role and future of investment arbitration.” –  Kaj Hobér, Global Arbitration Review, Volume 7, Issue 1