Role of Public International Law in Development of Investment Treaty Arbitration Rules

Role of Public International Law in Development of Investment Treaty Arbitration Rules

Abstract – Investment treaty arbitration has emerged as a prominent mechanism for resolving disputes between foreign investors and host states. The development of investment treaty arbitration rules has been significantly influenced by the principles and norms of public international law (PIL). In the field of investment treaty arbitration, the defendants have been increasingly asserting that the challenged actions were taken to fulfil and safeguard the human rights obligations of the state, or that the behaviour of the investors had violated the human rights of the local population. Disputes emerge on how to resolve the conflicts between safeguarding investments and serving the public’s interests, especially when investment treaties do not address this issue explicitly. This paper explores the multifaceted role of PIL in shaping the rules governing investment treaty arbitration. It examines how PIL principles have been incorporated into the rules of major arbitral institutions, such as the International Centre for the Settlement of Investment Disputes (ICSID) and analyses the impact of PIL on the interpretation and application of these rules. The paper also discusses the challenges and opportunities associated with integrating PIL considerations into investment treaty arbitration rules.

KEYWORDS: Investor State Arbitration, Human Rights, Public International Law, Contributory Fault, Most Favoured Nation.

Introduction: The Symbiotic Nexus of Public International Law and Investment Treaty Arbitration Rules

Investment treaty arbitration has become a crucial method for settling conflicts between foreign investors and host states in the field of international commerce. The dispute settlement process, which is multidimensional and based on the principles of public international law (PIL), has become increasingly important in the globalised economic landscape. The complex interaction between public international law (PIL) and the rules governing investment treaty arbitration has influenced the development of this specific type of arbitration. This has resulted in a framework that protects the rights of investors while also respecting the regulatory independence of the countries where the investments are made. Public international law is a fundamental aspect of the international legal system and serves as the basis for the development of rules governing investment treaty arbitration. The principles of Public International Law (PIL), which include ideas like fair and equal treatment, expropriation, and national treatment, are essential for interpreting and implementing terms of investment treaties. The interactions between foreign investors and host nations are governed by a normative framework established by rules derived from customary international law, treaties, and court decisions. The development of rules for investment treaty arbitration has been significantly shaped by the changing aspects of public international law. Investment treaty arbitration rules have adjusted in response to the changing demands of the global landscape as PIL has progressed. For example, the integration of human rights considerations into Public International Law (PIL) has stimulated the advancement of rules for investment treaty arbitration that defend the interests of investors while also advocating for the safeguarding of human rights. There are significant apprehensions regarding the credibility of the investment treaty regime, as it appears that the current system has been favouring the idea of keeping human rights and investor rights separate, like oil and water,[1] (ii) Investment arbitration has potentially interpreted investor rights in a broad manner that goes beyond the original intentions of International Investment Agreements (IIAs),[2] (iii) The excessive promotion of “free market fundamentalism” has disproportionately benefited foreign investors, disregarding public policy and human rights concerns[3]. Consequently, the protection and fulfilment of human rights would gradually diminish and become less significant. The presence of normative tensions and potential conflicts between international investment law and human rights is indicative of the absence of coordination and reconciliation across various departments of international law.

The ICSID Convention, which is the fundamental basis of investment treaty arbitration, demonstrates the significant impact of Public International Law (PIL) on these regulations. The rules of the Convention, which have been carefully designed to guarantee equity and openness in disputes between investors and states, are firmly based on principles of Public International Law (PIL). The Convention underscores the importance of local remedies being fully utilised, arbitrators being impartial, and verdicts being considered final. These principles align with the fundamental concepts of due process and procedural fairness that are deeply rooted in Public International Law (PIL). The jurisprudence of investment treaty arbitration highlights the interdependent connection between public international law (PIL) and the rules governing investment treaty arbitration. Arbitral tribunals have regularly utilised principles of public international law (PIL) to interpret and enforce clauses of investment treaties. The use of PIL has resulted in the establishment of a consistent set of laws governing investment treaty arbitration, shaped by the changing standards of PIL. Ultimately, the establishment of investment treaty arbitration procedures has been closely intertwined with the progression of public international law. The principles of public international law (PIL), which are fundamental to the field of investment treaty arbitration, have influenced how these rules are understood and implemented. The mutually beneficial link between PIL and investment treaty arbitration rules has facilitated the development of a system that safeguards the interests of investors while also respecting the regulatory independence of the countries where investments are made. The complex network of relationships and interactions in investment treaty arbitration is always developing to fit the dynamic nature of international business, ensuring that it remains a fundamental aspect of the global investment system.

The Influence of Public International Law on the Development of Investment Treaty Arbitration Rules

Investment treaty arbitration (ITA) is now a major method for settling conflicts between international investors and host states. The formulation of ITA rules has been greatly shaped by the concepts and standards of public international law (PIL). This chapter explores the complex and varied influence of Public International Law (PIL) on the regulations that govern International Treaty Arbitration (ITA). It examines how PIL principles have been integrated into the rules of prominent arbitration institutions, such as the International Centre for the Settlement of Investment Disputes (ICSID), and analyses how PIL has affected the interpretation and implementation of these rules. [4]The chapter also examines the difficulties and possibilities linked to incorporating Public International Law (PIL) issues into International Trade Agreement (ITA) regulations.

The Role of Public International Law in the Interpretation and Application of Investment Treaty Arbitration Rules

The principles of the Permanent International Law (PIL) have a crucial impact on the understanding and implementation of the International Tax Agreements (ITA) regulations. Arbitral tribunals frequently utilise concepts of Public International Law (PIL) to settle conflicts between investors and host states. For example, tribunals have regularly utilised the Fair and Equitable Treatment (FET) test to evaluate whether the conduct of a host state has breached its commitments under an investment treaty.

In the same manner, tribunals have utilised the expropriation standard to ascertain whether the actions taken by a host state have resulted in an indirect confiscation of an investor’s assets. In the Rusoro Mining Ltd. v. Bolivarian Republic of Venezuela[5] case, an arbitration panel used the expropriation criterion to determine if Venezuela’s actions had truly taken away an investment made by an Argentine investor in the Venezuelan oil industry. The panel determined that Venezuela’s actions amounted to an indirect seizure of property, emphasising the safeguarding of investor rights to their assets under the framework of Public International Law (PIL). The utilisation of PIL principles has facilitated the formation of a consistent corpus of ITA law. Arbitral tribunals have regularly utilised principles of public international law (PIL) in their rulings, resulting in a level of predictability and uniformity in international trade arbitration (ITA) case law. The maintenance of consistency is crucial to sustaining investor confidence in the ITA system, as investors may depend on a generally constant legal framework when engaging in foreign ventures.

The Impact of Public International Law on the Procedural Rules of Investment Treaty Arbitration

The concepts of PIL have also had an impact on the procedural regulations that regulate ITA. The purpose of these guidelines is to guarantee equity, openness, and proper legal procedures in ITA proceedings. The impact of Public International Law (PIL) on International Trade Arbitration (ITA) procedural procedures is apparent in various significant clauses. Examples of fundamental concepts of natural justice that have been included in ITA procedural norms include the right to be heard, the right to an impartial tribunal, and the right to equal treatment. These principles guarantee that both investors and host nations are treated fairly and justly throughout the ITA procedure, maintaining the standards of due process established in PIL. Moreover, the principles of Public International Law (PIL) have influenced the creation of regulations that govern the openness and clarity of International Trade Agreement (ITA) proceedings. The degree of transparency in ITA processes varies based on the relevant regulations, although there is a general inclination towards increased openness and public availability. This trend aligns with the fundamental values of openness and responsibility that are inherent in Public Interest Litigation (PIL). The growing visibility of ITA proceedings yields numerous advantages. It facilitates a more thorough examination of investor-state issues, hence discouraging baseless or unwarranted claims. Moreover, it can enhance public comprehension of the ITA system and the significance of PIL in protecting investor rights and maintaining the regulatory independence of host nations.

Challenges and Opportunities in Integrating PIL Considerations into Investment Treaty Arbitration Rules

Although the incorporation of PIL principles into ITA standards has yielded numerous advantages, there are also certain difficulties linked to this undertaking. An obstacle that arises is the possibility of international law being fragmented. The field of Public International Law (PIL) consists of a broad spectrum of standards and principles. However, there is a potential danger that the utilisation of PIL principles in International Trade Agreement (ITA) disputes may result in discrepancies and a dearth of foreseeability. A further obstacle involves the necessity to harmonise the entitlements of investors with the concerns of the general public. The main objective of PIL principles, such as the FET standard (fair and equitable treatment) and the expropriation standard, is to primarily safeguard the rights of investors. Nevertheless, host states possess valid concerns regarding the regulation of their economies and safeguarding public welfare. Incorporating Public International Law (PIL) considerations into International Trade Agreements (ITA) necessitates meticulous deliberation on how to effectively reconcile these conflicting interests. Although there are obstacles, there are also substantial prospects linked to incorporating PIL issues into ITA regulations. By integrating principles of Public International Law (PIL), the regulations of the International Trade Agreement (ITA) can be better harmonised with the wider framework of international law. This would ultimately strengthen the legitimacy and credibility of the ITA system. Incorporating PIL (Public Interest Litigation) factors can further guarantee that ITA (International Trade Agreement) choices align with the ideals of equity, openness, and legal procedure.

The development of investment treaty arbitration rules has been significantly influenced by public international law. The concepts of Public International Law (PIL) have been integrated into investment treaties, the regulations of prominent arbitration organisations, and the procedural rules that govern International Trade Arbitration (ITA) hearings.[6] These concepts have also played a crucial role in the interpretation and implementation of ITA rules, promoting predictability and uniformity in ITA jurisprudence. The impact of Public International Law (PIL) on International Trade Agreements (ITA) regulations has guaranteed that the ITA framework maintains the values of impartiality, openness, and legal procedure, consequently fostering investor trust and bolstering the stability of the global investment system. The ongoing development of the ITA system is expected to maintain a significant emphasis on incorporating PIL issues. Through a meticulous examination of the influence of PIL on ITA regulations, the global community can guarantee the preservation of a just, transparent, and efficient framework for settling conflicts between foreign investors and host nations.

Public International Law and the Substantive Standards of Investment Treaty Arbitration

Investment treaty arbitration (ITA) is a widely recognised method for settling conflicts between international investors and the countries in which they invest. The ITA’s substantive standards, which are based on public international law (PIL), offer a thorough structure for evaluating whether a host state’s activities have breached its commitments under an investment treaty. These criteria are essential for safeguarding the rights of investors while respecting the regulatory independence of the countries where they operate.

The Fair and Equitable Treatment Standard

The fair and equitable treatment (FET) criterion is a fundamental principle of ITA substantive law. The duty is placed upon host states to treat foreign investors in a manner that is free from arbitrariness, discrimination, or inconsistency with the reasonable expectations of investors. The FET standard is a malleable and progressive notion, and its understanding has been a topic of extensive discussion among arbitral tribunals.

The concept of “legitimate expectations” is a crucial component of the FET standard. Arbitral tribunals have regularly ruled that investors have the right to be treated following the reasonable expectations they had when they made their investments. These expectations can originate from terms in treaties, assurances given by the government, or the overall investment environment of the country where the investment is made.

The FET test has been utilised in multiple ITA instances to evaluate various actions taken by the host state, such as regulatory modifications, expropriation measures, and denial of justice. It has functioned as a crucial measure to protect the rights of investors, guaranteeing that host countries do not unjustly or randomly mistreat foreign investment.

The arbitral tribunal in the Argentine Republic[7] used the FET standard to assess whether Argentina’s treatment of an American investor violated its commitments under the ICSID Convention. The tribunal determined that Argentina’s activities had breached the Fair and Equitable Treatment (FET) criterion, highlighting the significance of predictability, transparency, and consistent governmental measures.

The Full Protection and Security Standard

The comprehensive safeguard and security standard obligates host nations to implement rational steps to safeguard foreign investors from bodily harm, violence, or any other forms of danger to their assets. The foundation of this criterion lies in the notion of state responsibility, which mandates states to safeguard foreigners present within their jurisdiction.

ITA situations involving a range of harms to investments, such as riots, civil disturbances, and criminal acts, have implemented comprehensive protection and security measures. Arbitral tribunals have stressed the significance of host states adopting proactive efforts to prevent harm to investments and offering appropriate compensation in case harm is inflicted.[8] In Shimovolos v. Russia,[9] an arbitral tribunal utilised the full protection and security standard to evaluate whether Russia’s failure to safeguard an investor’s property against arson assaults amounted to a violation of its responsibilities under a bilateral investment treaty. The tribunal determined that Russia had not implemented adequate safeguards to safeguard the investor’s property and granted compensation for the resulting losses.

The Expropriation Standard

The expropriation criterion mandates that host states are forbidden from seizing private property for public use without promptly, sufficiently, and effectively compensating the owners. This guideline aims to safeguard the proprietary rights of international investors and mitigate the occurrence of capricious expropriation.

The expropriation threshold has been widely construed to include both direct and indirect expropriation. Direct expropriation refers to the legal process by which a host state officially seizes ownership and control of an investor’s property. Indirect expropriation refers to situations where a host state’s actions, such as altering regulations or implementing discriminatory measures, result in the investor being effectively deprived of the ability to utilise or benefit from their property.

The expropriation criterion has been influential in ITA instances about the nationalisation of industries, land reform initiatives, and regulatory takings. It has functioned as a protective measure against the capricious violation of investor property rights.

In the Rusoro Mining[10] case, an arbitration panel used the expropriation criterion to determine if Venezuela’s actions had effectively taken away an investment made by an Argentine investor in the Venezuelan oil industry. The panel determined that Venezuela’s actions amounted to an indirect seizure of property, emphasising the safeguarding of investor property rights under international investment law (PIL).

The Most-Favored-Nation Standard

The MFN standard mandates that host states must provide foreign investors with equal treatment as they provide to investors from other nations. This norm advocates for equal treatment and guarantees that foreign investors are not put at a disadvantage in comparison to domestic or other foreign investors.[11]

The Most-Favored Nation (MFN) test has been utilised in International Trade Agreement (ITA) proceedings encompassing a range of differential treatment, including discriminatory tax measures, preferential access to resources, and less advantageous investment conditions. It has functioned as an equalising platform for international investors, guaranteeing impartial and equitable treatment.

In the Salini Costruttori S.P.A. v. The Federal Democratic Republic of Ethiopia, Addis Ababa Water and Sewerage Authority,[12] an arbitration panel used the Most-Favored Nation (MFN) principle to determine if Ethiopia had given preferential treatment to foreign investors in the construction industry compared to an Italian investor. The tribunal determined that Ethiopia had breached the Most-Favored Nation (MFN) norm by imposing more burdensome licencing prerequisites on the Italian investor.

The National Treatment Standard

The national treatment requirement mandates that host nations must provide international investors with the same level of favourable treatment as they provide to domestic investors. This norm advocates for equal treatment and guarantees that foreign investors are not subjected to capricious or prejudiced actions. The national treatment standard has been utilised in ITA cases about diverse types of domestic investment policies, including licencing requirements, tax rules, and market access. It has functioned as a protective measure against the biased treatment of international investors, promoting fair competition for both local and foreign investment. In the CME Czech Republic BV v Czech Republic,[13] an arbitral tribunal utilised the national treatment standard to evaluate whether the Czech Republic had provided less favourable treatment to an American investor compared to Czech investors in the telecommunications industry. The tribunal determined that the Czech Republic had breached the national treatment criterion by imposing elevated interconnection fees on the American investor.

Challenges and Opportunities in Integrating Public International Law into Investment Treaty Arbitration Rules

The incorporation of public international law (PIL) into investment treaty arbitration (ITA) rules entails an intricate interaction of difficulties and possibilities. Although the principles of PIL (Public International Law) provide a useful structure for safeguarding the rights of investors and ensuring equitable treatment, its implementation in instances involving ITA (Investment Treaty Arbitration) has sparked concerns over the fragmentation of international law, the credibility of investor-state dispute settlement (ISDS), and the involvement of non-state entities.

The Fragmentation of International Law: A Double-Edged Sword

An important obstacle in incorporating PIL into ITA rules is the possibility of international law being fragmented. Utilising PIL concepts in ITA cases might result in incongruous interpretations and results, forming a mosaic of legal standards that might compromise the consistency and predictability of the global legal framework. The fragmentation is especially apparent in the interpretation of the fair and equitable treatment (FET) requirement, which is a fundamental aspect of ITA substantive law. Arbitral tribunals have employed the Fair and Equitable Treatment (FET) norm in diverse manners, resulting in discrepancies and a lack of predictability in disputes between investors and states. For example, the understanding of the FET norm has differed in situations where there have been revisions in regulations, measures of expropriation, and instances of denial of justice.

Although fragmentation is a considerable obstacle, it is crucial to recognise that incorporating PIL principles into ITA rules can also function as a cohesive influence. PIL principles can contribute to the standardisation of the ITA system and minimise discrepancies amongst arbitral courts by offering a shared framework for understanding and implementing investment treaty clauses. Such harmonisation can enhance the level of predictability and confidence for both investors and host states.

To overcome the issue of fragmentation and take advantage of the unifying capacity of PIL principles, it is necessary to adopt a more coordinated method for interpreting and implementing PIL principles in ITA regulations. This may entail the formulation of more explicit directives for arbitral tribunals, along with enhanced synchronisation among international courts and tribunals. The implementation of an appeal process for ITA disputes could additionally contribute to the promotion of coherence and mitigation of fragmentation.

The Legitimacy of Investor-State Dispute Settlement: Balancing Investor Protection and Host State Sovereignty

The legitimacy of Investor-State Dispute Settlement (ISDS) has been a topic of continuous discussion, with detractors contending that it confers an excessive amount of authority to foreign investors and weakens the regulatory independence of host states. The incorporation of PIL concepts into ITA laws has exacerbated these concerns, as it has been regarded as bolstering the position of investors in ISDS proceedings.

To resolve these issues, it is essential to maintain a balanced approach between integrating PIL into ITA rules and safeguarding the sovereignty of the host state. To establish this equilibrium, it is important to acknowledge the lawful regulatory authority of the states where investments are made, while also guaranteeing that investors are not subjected to capricious or unjust treatment. The equilibrium between the regulatory interests of host nations and the legitimate expectations of investors is of utmost significance, especially within the framework of the FET standard, requiring arbitral tribunals to meticulously weigh these factors.[14]

Furthermore, it is crucial to augment the openness and accountability of the ISDS system, while also maintaining a balance between safeguarding investor protection and host state sovereignty. One possible approach is to enhance the availability of ISDS proceedings to the general public, expand opportunities for stakeholders to participate, and bolster the involvement of third parties in the system.

The Role of Non-State Actors: Striking a Balance of Representation and Impartiality

The growing participation of non-state players, such as non-governmental organisations (NGOs) and civil society groups, in international trade agreements (ITA) has prompted inquiries on their role and impact inside the system. Although non-state actors can offer useful insights and perspectives, especially on human rights, environmental concerns, and social justice issues, their involvement in ITA procedures can also pose challenges in terms of impartiality and legitimacy.

To tackle these problems, it is crucial to create unambiguous norms regarding the involvement of non-state actors in ITA procedures. These standards should establish their role, guarantee transparent involvement, and prohibit them from exerting excessive influence on dispute resolutions. Furthermore, it is essential to guarantee that the involvement of non-state entities does not compromise the fairness of ISDS procedures or weaken the rights of investors and host governments.

The Future of Investment Treaty Arbitration Rules: Navigating the Challenges and Embracing the Opportunities

Although there are difficulties in incorporating PIL (Public International Law) into ITA (International Trade Agreement) norms, the potential benefits for enhancing the ITA system and guaranteeing its credibility are substantial. The concepts of PIL (Public International Law) can offer a beneficial structure for safeguarding the rights of investors while respecting the regulatory independence of host countries, thus promoting a harmonious equilibrium between these conflicting interests.

The incorporation of PIL principles is expected to have a growing significance as the ITA system continues to develop. Nevertheless, it is imperative to thoroughly evaluate and tackle the obstacles and apprehensions linked to this amalgamation to uphold the system’s integrity, openness, and credibility.

Addressing the Challenges and Opportunities: A Path Forward

To effectively deal with the obstacles and take advantage of the opportunities arising from the integration of PIL into ITA standards, it is essential to adopt a comprehensive and multifaceted strategy. This strategy should include the following essential components:

• Establishing explicit guidelines and fostering better coordination among international courts and tribunals can facilitate the harmonisation of the interpretation and application of principles of Public International Law (PIL) in International Trade Agreement (ITA) cases. This can lead to a reduction in fragmentation and an improvement in predictability.
• Striking a balance between safeguarding investor interests and respecting the sovereignty of the host state: It is essential to acknowledge the lawful regulatory authority of host countries while also guaranteeing that investors are not subjected to capricious or unjust treatment. This is necessary to establish a harmonious equilibrium between safeguarding investors and respecting the sovereignty of the host country.
• Improving transparency and accountability within the ISDS system can help alleviate concerns over its legality and promote increased trust among stakeholders.
• Establishing explicit guidelines for the involvement of non-state actors in ITA procedures can guarantee that their valuable views and viewpoints are taken into account, while also upholding the impartiality and legitimacy of the system.
• Consistent Assessment and Modification: Consistently assessing the efficiency of incorporating PIL into ITA regulations and implementing necessary modifications is crucial to maintaining the system’s relevance, efficacy, and adaptability to the changing requirements of investors and host nations.

The international community may successfully address the obstacles and take advantage of the opportunities that arise from the incorporation of PIL into ITA standards by implementing these actions.[15] This will enhance the robustness, credibility, and equilibrium of the ITA system, ensuring the protection of investor rights while acknowledging the authority of host states.

Conclusion

Ultimately, the incorporation of public international law (PIL) into investment treaty arbitration (ITA) regulations has significantly influenced the growth and functioning of the ITA framework. The principles of the Permanent International Court of Arbitration (PIL) have been integrated into the rules of the International Trade Administration (ITA), impacting how those rules are understood and implemented, and determining the procedural structure of the ITA. The ITA’s substantive standards, which are based on PIL, establish a structure for evaluating whether the activities of a host state have breached its responsibilities under an investment treaty. The implementation of these norms has been essential in safeguarding the rights of investors while respecting the regulatory independence of the countries where they operate. The incorporation of PIL (Public International Law) into ITA (International Trade Agreements) regulations has posed many difficulties as well as potential advantages. The possibility of international law being fragmented and the doubts surrounding the legitimacy of investor-state dispute settlement (ISDS) present issues that must be resolved. Nevertheless, incorporating PIL into the ITA system presents prospects for enhancing investor rights protection and ensuring equitable treatment through the establishment of a unified and consistent framework. To tackle the difficulties and take advantage of the possibilities, it is essential to adopt a comprehensive strategy. This approach should involve the consistent and coordinated understanding and use of principles of Private International Law (PIL), while also considering the need to protect investors and respect the sovereignty of the host state. It should aim to increase transparency and accountability, provide clear instructions for the involvement of non-state actors, and include ongoing assessment and improvement. The international community may successfully address the obstacles and take advantage of the benefits arising from the incorporation of PIL into ITA standards by implementing these actions. This will enhance the robustness, credibility, and equilibrium of the ITA system, ensuring the protection of investor rights while also acknowledging the authority of host states. To summarise, the incorporation of PIL (Public International Law) into ITA (International Trade Agreements) regulations has been an intricate and diverse procedure, presenting both difficulties and possibilities. Through meticulous examination of the concerns presented in this paper, the global community may persist in enhancing and perfecting the ITA system to guarantee its fairness, efficacy, and legitimacy.

[1] Mehmet Toral & Thomas Schultz, The State, a Perpetual Respondent in Investment Arbitration? Unorthodox Considerations, in The Backlash Against Investment Arbitration: Perceptions And Reality 577, 589 (Michael Waibel et al. eds., 2010).

[2] Gus Van Harten, Investment Treaty Arbitration And Public Law 139 (2007). Gus Van Harten et al., Public Statement on the International Investment Regime – 31 August 2010, OSGOODE HALL L. SCH. YORK U <www.osgoode.yorku.ca/public-statement-international-investment-regime-31-august-2010/ >

[3] Muthucumaraswamy Sornarajah, Evolution or Revolution in International Investment Arbitration? The Descent into Normlessness, in Evolution In Investment Treaty Law And Arbitration 631, 633 (Chester Brown & Kate Miles eds., 2011)

[4] Lucas Bento & Jingtian Chen, Investment Treaty Claims in Pandemic Times: Potential Claims and Defenses, Kluwer Arb. Blog (Apr. 8, 2020) <http://arbitrationblog.kluwerarbitration.com/2020/04/08/investment-treaty-claims-in-pandemic-times-potential-claims-and-defenses/>

[5] ICSID Case No. ARB(AF)/12/5.

[6] Mark Chinen, Complexity Theory and the Horizontal and Vertical Dimensions of State Responsibility, 25(3) Eur. J. Int’l L. 703, 707 (2014).

[7] ICSID Case No ARB/03/17.

[8] Adam H. Bradlow, Human Rights Impact Litigation in ISDS: A Proposal for Enabling Private Parties to Bring Human Rights Claims Through Investor-State Dispute Settlement Mechanisms, 43(2) Yale J. Int’l L. 355, 356 (2018).

[9] Case no. 30194/09.

[10] Supra note 5.

[11] Tomoko Ishikawa, Counterclaims and the Rule of Law in Investment Arbitration, 113 Ajil Unbound 33, 33 (2019).

[12] ICC Case No. 10623/AER/ACS.

[13] (2006) 9 ICSID Rep 264.

[14] Supra note 2.

[15] Caroline Foster, Adjudication, Arbitration, and the Turn to Public Law “Standards of Review”: Putting the Precautionary Principle in the Crucible, 3(3) J. INT’L DISP. SETTLEMENT 525, 533 (2012).