International Investment Law and Comparative Public Law

Investment treaty arbitration has a hybrid nature combining public international law (as regards its substance) with elements of international commercial arbitration (mainly as regards procedure). However, in essence and function it deals with a special, internationalized form of judicial review of governmental conduct that is more akin to the judicial control of governmental action provided for by national administrative and constitutional law than to either classic inter-state dispute resolution or international commercial arbitration. This has been recognized in some academic writing and several awards, where reference to national administrative law concepts and principles of international law-based judicial review of governmental action, such as international trade or human rights law, is used to help specify and apply the open-ended concepts of investment treaties. In-depth conceptualization is however often lacking. The current study is the first, pioneering effort to bring these under-developed ad hoc references to comparative and international administrative law concepts into a deeper theoretic and systematic framework. The book thus intends to develop a 'bridge' between treaty-based international investment arbitration and comparative administrative law on both a theoretical and practical level. The major obligations in investment treaties (indirect expropriation, fair and equitable treatment, national treatment, umbrella/sanctity of contract clause) and major procedural principles will be compared with their counterpart in comparative public law, both on the domestic as well as international level. That 'bridge' will allow international investment law to benefit from the comparative public law experience, which could enhance its legitimacy, its political acceptance, and its ability to develop more finely-tuned interpretations of central treaty obligations.

Stephan Schill is a senior research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. He is admitted to practice as a "Rechtsanwalt" in Germany and as an Attorney-at-law in New York. He was formerly the international arbitration law clerk to the Honorable Charles N. Brower, 20 Essex Street Chambers, London. As such, he worked on international commercial and investor-State disputes under various arbitral rules, including ICSID, NAFTA, ICC, SCC, LCIA and UNCITRAL Rules. Prior to that he was a Research Scholar at New York University School of Law and a law clerk to Judge Abdul G. Koroma at the International Court of Justice. He holds a Ph.D./Dr. iur. from Johann Wolfgang Goethe-Universitat Frankfurt am Main that he prepared under the supervision of Prof. Dr. Armin von Bogdandy. He authored several articles in leading international law journals and a book on The Multilateralization of International Investment Law.

Part I - Concepts and Foundations
1. International Investment Law and Comparative Public Law - An Introduction, Stephan W. Schill
2. Minimum Standards of Procedural Justice in Administrative Adjudication, Giacinto della Cananea
3. Public Law Concepts to Balance Investors' Rights with State Regulatory Actions in the Public Interest - The Concept of Proportionality, Benedict Kingsbury and Stephan W. Schill
Part II - Investor Rights in Comparative Perspective
4. The Concept of Indirect Expropriation in Comparative Public Law - Searching for Light in the Dark, Markus Perkams
5. Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law, Stephan W. Schill
6. Full Protection and Security, Helge Elisabeth Zeitler
7. Cain & Abel: Congruence and Conflict in the Application of the Denial of Justice Principle, Ali Ehsassi
8. The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO, Jurgen Kurtz
9. Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and Investment Law, Freya Baetens
10. Umbrella Clauses as Public Law Concepts in Comparative Perspective, Stephan W. Schill
11. Transfer of Funds: The Interaction between the IMF Articles of Agreement and Modern Investment Treaties: A Comparative Law Perspective, Abba Kolo
Part III - Comparative Administrative and Comparative Constitutional Law on Selected Issues
12. State Responsibility and Comparative State Liability for Administrative and Legislative Harm to Economic Interests, Irmgard Marboe
13. Legitimate Expectations and Informal Administrative Representations, Hector A. Mairal
14. Revocation and Cancellation of Concessions, Operating Licenses and Other Beneficial Administrative Acts, Kim Talus
15. Public-Private Partnerships: Award, Performance and Remedies, Catherine Donnelly
16. Economic Emergency Powers: A Comparative Law Perspective, Christina Binder and August Reinisch
17. Property Protection and Protection of Cultural Heritage, Federico Lenzerini
18. Taxation and Investment: Constitutional Law Limitations on Tax Legislation in Context, Christian Tietje and Karoline Kampermann
19. Comparative Taxation Procedure and Tax Enforcement, Paul B. Stephan
Part IV - Dispute Settlement, Arbitral Procedure, and Remedies
20. Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law, Gus Van Harten
21. Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law, Chester Brown
22. The Need for Public Law Standards of Review in Investor-State Arbitrations, William Burke-White and Andreas von Staden
23. Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View, Anne van Aaken
24. Comparative Compensation for Expropriation, Borzu Sabahi and Nicholas J. Birch
25. Transparency and Representation of the Public Interest in Investment Treaty Arbitration, Alessandra Asteriti and Christian J. Tams