Whenever states’ rights to regulate and investor’s interests conflict with each other it is an unsolved question in investment treaty arbitration how one should balance those two positions. In particular, it is indefinite where to draw the line at what point states can actually exercise their rights without unlawfully violating the investor’s interests. A solution for this issue might be the proportionality test or analysis. Over the years, several tribunals approached proportionality, but took very different paths to understand and apply this legal concept. Especially, if one considers proportionality from its root in European and German law, some applications in investment treaty arbitration create confusion. Originating from a fixed methodological approach in the background of justifications of state measures, tribunals use proportionality in the process of defining and determining in contrast to the justification, as one would expect. Thus, it remains questionable which of those approaches is correct or if there is rather one correct application of proportionality in the context of investment treaty arbitration. This work argues in favour of proportionality being a legal concept which originates from German and European jurisprudence and migrated to international law. In international law it was established as a legal principle and subsequently adopted, inter alia, in investment treaty arbitration. Nevertheless, tribunals should be more careful when using proportionality. Especially, when naming and transferring a particular legal construct, it should not be used out of context. This endangers an award’s persuasiveness and furthers the fragmentation in international investment law. Tribunals should only refer to the ‘principle of proportionality’ or a ‘proportionality test/analysis’ when they actually apply it. And this application requires the concept to be used in the background of justification and not determination. Furthermore, the three/four significant steps must be followed in order to obtain the aimed proportional result.

Investment treaty arbitration has borrowed a number of elements from commercial arbitration, including confidentiality. The scope of confidentiality in investor-state arbitrations can make it hard for amicus curiaeto participate in the arbitral proceedings.    The rules regarding transparency in investor-state arbitration relates, among others, to access to information and documents, third-party participation and the publication of awards. Transparency in investor-state arbitrations is also related to changes in legislation that could affect the investor. Changes in legislation is a way of adapting to new circumstances as changes in government or an attempt to prevent health issues or fulfilling environmental goals in the interest of the public.   The possibility of amicus curiaeparticipation and submissions make it possible for the public to affect what information the tribunal have in cases where public interests are discussed. Tribunals have, when they have found that the public interest is not only general, decided to allow amicus curiaesubmissions even without the consent of the parties. They have allowed such submissions in cases where the amicus curiaecould enlighten the tribunal or provide additional information about the merits.     There is no binding case law in arbitration. Since the tribunal only have jurisdiction in the particular case, awards cannot be binding in other disputes. The lack of case law can lead to a lack of predictability for both investors and states. It has led to fewer changes in domestic regulation, the phenomenon is called the “chilling effect” and refers to states who make less changes (including changes in the interest of the public) in an attempt to avoid a violation of the FET standard.    Transparency, i.e. making the dispute public, including the party’s identities, documents and the award, can help providing predictability to investment-treaty arbitration. The outcome of the case is not binding as case law for future disputes but could provide both states and investors knowledge about how certain treaties and actions might be interpreted by a future tribunal.

That subjective and political values form the sources and function of international law, is an often encountered claim and the literature produced by schools of international legal theory in response to this inquiry diverge. On the one hand, according to classical and positivist approaches to international law, a formalistic and ideal form of the law that is also detached from the world of politics is possible. On the other hand, the perception that attitudinal and institutional constraints might determine the content of the law is common in international legal scholarship ranging from international relations approaches and the New Stream to policy oriented perspectives. Understanding the content of the law, however, would also necessitate questioning how adjudicators interpret legal texts and decide in causal-positive terms. In other words, in theorizing international law, one should explore the interpretation and application of international law in order to test whether adjudicators are influenced by background, training, personality, value preferences as well as normative and structural institutional constraints and, thus, if international law operates based on law and/or politics. Based on the theories and methods of judicial behaviour that originate from the American legal realism movement of the early 20th century, this work undertakes a non-empirical socio-legal research that studies the behaviour of ITA tribunals. It considers that law is indeterminate and that the process of judicial-decision making is a mixture of law, politics and policy. This work constructs a framework based on the political regimes approach by Clayton and May (1999), supplemented by the political jurisprudence literature of Shapiro (1964) and the historical interpretive approach of Smith (1988). It argues that ITA Tribunals “may believe that individual legal institutions are themselves embedded within, and draw meaning from, the larger political regime”. In doing so, the ITA Tribunal may assume a principal political role in order to accommodate the interests of various stakeholders involved in the broader political regime of international investment, albeit limited to constitutive and non-constitutive institutions. This work investigates the role of institutions embedded in the broader political regime in judicial decision-making in ITA. How do institutions, with their political characteristics, affect the process of decision-making in ITA or do they affect at all? To that extent, this work is concerned with whether the ITA Tribunal oscillates between the normative character of the law and the political contingency of the law. It examines the extent to which the ITA Tribunal accommodates politics in its decisions and, in this vein, whether there is a correlation between politics and decision-making in ITA. As its case study, this work studies arbitral decision-making under NAFTA Chapter 11. It first explores the broader political regime in which NAFTA tribunals operate, revisiting the original bargain that underlies the NAFTA deal. It then identifies specific constitutive institutions that are influential in NAFTA ITA decision-making. It traces the specific vocabulary or ‘grammar’ (Koskenniemi 1989) that is used by Chapter 11 Tribunals in considering the place of these constitutive institutions in ITA decision-making. Subsequently, this work studies the normative political development of Article 1105 on the minimum standard of treatment within the broader political regime under NAFTA. It investigates shifts in the specific vocabulary vis-à-vis the distortions to the two pillars of the political regime of NAFTA, namely asymmetric obligations and the regulation of environment. This work demonstrates that the development of the minimum standard of treatment under Article 1105 reflects a brief history of intrusion by non-disputing parties from sovereign states and amici. This is enabled through the constitutive institutions and draws meaning from the political regime of international investment under NAFTA. It concludes that the ITA Tribunal is able to develop a vocabulary with which it could internalize the conundrums of the broader political regime in which it operates. This shows that the ITA Tribunal is not only competent in settling disputes but also in judicial politics.

This research discusses the impacts of oil and gas extraction in the Niger Delta region of Nigeria on the right to health and the right to a healthy environment of the Niger Delta people. It highlights the importance of FDI in oil and gas sector development and the responsibility of multinational corporations towards human rights and environmental rights protection in developing host States where national laws and regulations may not be properly developed and adequate in protecting the people’s human rights. The work argues that BITs should rightly be employed in efforts to protect the right to health and a healthy environment against the excesses of oil and gas multinational corporations. The Niger Delta is used as a case study.

Based on a thorough analysis of theoretical arguments, this meta-analysis does not find a genuine empirical effect of Bilateral Investment Treaties on Foreign Direct Investment after correcting for publication selection bias. / Series: Department of Economics Working Paper Series

The International Centre for Settlement of Investment Disputes (ICSID), has seen an increased transparency in the past couple of decades. The participation of third parties in the proceedings and the disclosure of documents or information regarding the arbitrations are some of the most important and controversial issues regarding transparency nowadays. The purpose of this thesis is to analyze the evolution of transparency in ICSID, as well as specific cases that dealt with issues of third party participation and the disclosure of documents or information in investment treaty arbitration, and analyze the decisions taken by the tribunals. The evolution of transparency within the history of ICSID allows us to see the principal amendments made, and how transparency has been evolving in favor of investment treaty arbitration, providing more confidence, openness and legitimacy on this system of dispute resolution. Nevertheless, transparency is not a panacea. Excessive transparency might bring more challenges than benefits, depending on the circumstances on a case-by-case basis, therefore, it is necessary to consider the effects that transparency may produce in investment treaty arbitration, and find a right balance with elements such as confidentiality, the power of the tribunals and the will of the disputing parties in the arbitration, among others. This thesis proposed that even if there is always space for improvements, the evolution of transparency has reach a limit where further changes would be futile and prejudicial for the system of investment treaty arbitration. This would bring a series of challenges, such as, an extra burden to the disputing parties, a delay on the proceedings, and in certain cases leaving the result of the arbitration in hands of the public scrutiny, the media or turning the dispute in a political matter.

Third party funding (TPF) is a method of financing legal proceedings, in which a party not directly connected to the proceedings funds one of the disputing parties, usually in return for a percentage of the final monetary settlement. The interests behind TPF are that the funded party will have the resources to pursue their claim, while the funder will be able to profit from a percentage of the final settlement. Traditionally, within common law-systems, TPF was excluded through application of the common law torts of “Champerty and Maintenance”.[1] However, in the second half of the 20th century, many common law systems[2] abolished the torts of “Champerty and Maintence”.[3]This effectively opened up TPF as a valid litigation option for many resource poor litigants and birthed a niche industry of litigation financiers[4]. There is debate on TPF in general, with some believing that it allows legal recourse to include those that do not have the means to reasonably finance and confront legal wrongs imposed on them.[5]Others state that there is a danger of letting the funder interests supersede the claimant’s, as exemplified by some retaliatory cases[6] proceeding the Chevron v Ecuador arbitration, in which the funders had veto power over such aspects as the choice of attorneys and priority in the disbursement of a monetary award.[7] However, issues with the general system of TPF is not the focus of this thesis. Instead, focus will be on the issues it brings to the system of investment arbitration. While its operation is largely the same as within national jurisdictions, it does have the potential for damage of distinct principles and procedure of investment arbitration.  At first look, TPF seems to complement the system of arbitration as a whole. If one considers that, at its core, arbitration is a user determined dispute settlement system, then questions of funding should be determined by the parties themselves. This may suggest that due to its emphasis on “Party Autonomy”, TPF is more aligned with arbitration than it is with court-based litigation, where the principles of justice and fairness take a more preferential role. Nevertheless, “Party Autonomy” is not the sole principle of arbitration and does not mean that TPF is harmonious with either general arbitration or in particular investment arbitration. There is the general concern that a funder can actively change the process and end result of a dispute. This is seen through their influence over the funded party. As a funder will have a direct economic control over the funded party, they can dictate, as part of the funding agreement, outcomes such as early settlement, litigation strategies etc.[8] The choice of approach, and it is submission to a third party, however, is squarely within party autonomy and does not raise any fundamental concerns. What is concerning is affected parts of process that are out with party autonomy. One can see below that TPF can affect general trends and principles of arbitration, i.e. transparency and confidentiality , while also conflicting with core aspects of procedure such as jurisdiction and impartiality. This concern has given way to calls for regulation of TPF within the academic and global community. What was traditionally a “legal no mans land”[9] for investment arbitration, with little regard given to regulation, has now had extensive academic commentary and State reactions to regulating TPF. Yet, comprehensive regulation of TPF remains rare and piecemeal within the arbitral world. The majority of jurisdictions and arbitral institutions, while aware of the issues, have made no serious effort to remedy through regulation. That being said, there has been some work done in three distinct areas of regulation: (i) National laws (ii) Trade/Investment Treaties and (iii) Arbitral Rules. Each area’s success however can be described as mixed.   Therefore, the topic of this thesis is to first explore the potential issues of TPF and investment arbitration and then to examine and analysis the response to these issues through regulation. [1] Steyn LJ, in Giles v Thompson [1993] 3 All ER 321 at 328, explained the doctrines thusly: “In modern idiom maintenance is the support of litigation by a stranger without just cause. Champerty is an aggravated form of maintenance. The distinguishing feature of champerty is the support of litigation by a stranger in return for a share of the proceeds.” [2] In Civil law systems, unless TPF was not expressly excluded,  was mostly allowed. [3] For example see s.14(2), Criminal Law Act 1967 (England and Wales) or Maintenance, Champerty and Barratry Abolition Act 1993 (NSW, Australia) [4] There is now several prominent litigation financing companies such as: Burford Capital Ltd., Harbour Litigation Funding, IMF Bentham and Longford Capital. For a more in-depth review of the industry in general see Hancok, B, ‘Who Rules the World of Litigation Funding? ’March 30, 2017 , The American Lawyer. [5]Chen AD (2013), 'A Market For Justice: A First Empirical Look At Third Party Litigation Funding', at 1075 [6] Chevron Corp. v. Donziger, 800 F. Supp. 2d 484 (S.D.N.Y. 2011) [7] U.S. Chamber Institute for Legal Reform (2018), “Third Party Litigation Funding” [8] Shaw G (2017), ‘Third-party funding in investment arbitration: how non-disclosure can cause harm for the sake of profit’, at 12 [9]  Van Boom WH (2011), ‘Third-Party Financing in International Investment Arbitration’, at 5

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Doctor Legum - LLD / The existing traditional international investment law regime which is largely based on the conventional European and North American Model Bilateral Investment Treaties (BITs) has come under intense criticism. The argument is that this regime, among other things, prioritises the protection of foreign investors and investments while sidelining significant public interest issues of the host countries. The inability to adequately accommodate public interest issues in the international investment law has unduly constrained the host countries’ sovereign right to regulate investments in public interests and pursue their public policy objectives.