Agora 5: Investment Protection

Chaired by Mr Jan Paulsson

The fall of the Berlin Wall presented investment opportunities worldwide. Globalisation has gone hand in hand with economic liberalisation. Has international law provided the appropriate measure of protection for international investors? What of state sovereignty in the sense of national regulatory autonomy? What of the rule of law amid the cacophony of ad hoc investment tribunals and annulment committees?

The "de-fragmentation" of international investment law

MR EDWARD GUNTRIP, PhD Candidate and Graduate Teaching Assistant, Brunel University, London

Abstract: Fragmentation is based on the premise that individual areas of public international law are becoming increasingly specialised and divided, that legal principles are becoming incoherent, and as a consequence, public international law is losing general applicability. Despite initially being a specialised field of international law with limited applicability, international investment law is evolving to become part of mainstream public international law by virtue of it addressing interests secondary to investment such as human rights, labour rights and environmental standards. In light of the recent focus on fragmentation and the development of international investment law, this paper argues that, rather than becoming a “fragment” of international law, international investment law has undergone the opposite process to become “de-fragmented”.


Initially, the paper will discuss the concept of fragmentation before identifying the shared characteristics of some commonly cited examples of “fragments” of international law. In light of this discussion, consideration then turns to identifying the trends that have taken place in international investment law in the period from 1989 – 2010 to argue that a process of “de-fragmentation” has occurred in relation to international investment law. The paper then examines the current position of international investment law within the public international law regime and outlines the trends that may have an impact on international investment law in the future. Based on this discussion, the paper concludes by contemplating whether the “de-fragmentation” of international investment law is likely to continue.

Biography: Edward Guntrip is a PhD Candidate at Brunel University where his research focuses on the intersection of foreign direct investment and human rights law. Edward is also a Graduate Teaching Assistant at Brunel University teaching undergraduate and postgraduate modules including international commercial arbitration. His previous experience includes practising as a solicitor in Australia (Mallesons Stephen Jaques) and in various firms in London and he is a Member of the Chartered Institute of Arbitrators. He holds a B.Sc and LL.B (Hons) from the University of Western Australia and an LL.M in international law from the University of Cambridge.

Guntrip - Draft ESIL Paper

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Bilateral Investment Treaties (BITs) under siege of the ECJ

DR NIKOLAOS LAVRANOS, Senior Trade Policy Advisor, Dutch Ministry of Economic Affairs, The Hague; former Academic Research Director EU Law, Law Faculty, Hague University

Abstract: This contribution seeks to analyze whether and if so to what extent investment law can or must be considered to be a sui generis legal order that is distinct from general international law and how investment law and Community law interact.


This interaction has become particularly interesting to study because with the entering into force of the Lisbon Treaty, foreign investment law has come under the exclusive competence of the EU. Moreover, recently, the ECJ has issued 3 judgments on pre-accession BITs in which the ECJ determined that even in case of a hypothetical incompatibility between the pre-accession BIT and EC law, Member States are required to eliminate this incompatibility by ultimately denouncing the BIT. Consequently, the relationship between investment law and Community law has become even more complicated.


Accordingly, this an analysis aims at shedding some light on the general theme of this conference, namely, the performance of international law or rather the performance of investment law under the guidance of general public international law and Community law.

Biography: Since March 2010 Nikos Lavranos started working for the Dutch Ministry of Economic Affairs as Senior Trade Policy Advisor responsible for all Dutch BITs. Before, he acted as interim Academic Research Director EU Law at the Hague University. In the academic year 2008-2009, he was Max Weber Fellow at the EUI. Last year he published his second book on Jurisdictional Competition between international courts and tribunals. In 2004 he received his PhD from Maastricht University for his thesis on Decisions of International Organization in the European and Domestic Legal Orders of selected EU Member States.

Lavranos - Draft ESIL Paper

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Limits of depoliticisation in contemporary investor-State arbitration

DR MARTINS PAPARINSKIS, Hauser Research Scholar, New York University

Abstract: Depoliticisation of investment dispute settlement is considered to be one of the principal reasons and advantages of investor-State arbitrations. This paper considers the added value that the depoliticisation vocabulary brings to the resolution of modern challenges.


First of all, equating investor-State arbitration with depoliticisation of investment disputes suggests a particular perception of legal and political. For the drafters of the ICSID Convention, ratione personae identity of the claimant was the benchmark of politicisation. The logical solution was to replace the home State with the investment, leaving the dispute otherwise unchanged. Secondly, one critique of investment arbitration questions its adequacy for resolving public disputes. In terms of depoliticisation, despite the ratione personae changes the ratione materiae nature of the dispute retains the same degree of political sensitivity. While this position is open the classic Lauterpacht’s critique of substantive definitions of political, it also shows the danger of promising depoliticisation by legal means. Thirdly, another challenge to depoliticisation is the involvement of the home State, eg by ownership or control of the investor. While the de facto involvement of the home State blurs the distinction from the classic regime, restrictions could lead to direct challenges of depoliticisation by invocation of the State-State dispute settlement.


Overall, as per Lauterpacht, it has to be taken as a given that every international law dispute is political. Whatever usefulness depoliticisation may have had as a rhetorical tool in contrasting ‘retrogressive State-centred political’ law with ‘progressive investor-centred legal’ law, its contribution to conceptualising and resolving modern challenges is not entirely obvious.

Biography: Martins Paparinskis, M Jur (Dist) (Oxon), M Phil (Dist) (Oxon), D Phil (Oxon), is a Hauser Research Scholar at the New York University. Martins has tutored as a Graduate Teaching Assistant in Public International Law and International Economic Law at the University of Oxford, and will return to Oxford as a Junior Research Fellow in Merton College starting Michaelmas Term 2010. His research interests include investment protection law, particularly in the broader context of sources of law, treaty interpretation, State responsibility and international dispute settlement. Martins has spoken in conferences and published about investment law, including in the British Yearbook of International Law.

Paparinskis - Draft ESIL Paper

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