Investment Law before Arbitration. (18th December 2020)

• Record Type: Journal Article
• Authors: Hepburn, Jarrod; Paparinskis, Martins; Skovgaard Poulsen, Lauge N; Waibel, Michael
• Is Part Of: Journal of international economic law. Volume 23:Number 4(2020)
• Page Start: 929
• Page End: 947
• Publication Date: 2020-12-18
• Subjects: Law and economics -- Periodicals; Foreign trade regulation -- Periodicals; Tariff -- Law and legislation -- Periodicals; International economic relations -- Periodicals; 343.07
• DOI: 10.1093/jiel/jgaa037
• Languages: English
• ISSNs: 1369-3034

Abstract

ABSTRACT: Investment law was not always about investor–state arbitration. Based on British and German archival materials from the Cold War, this paper shows how aims and priorities in the investment treaty regime changed over time. We find important differences in the role and relative importance of different legal rules then and now. Most notably, national treatment and free transfer clauses were key in early investment law, whereas fair and equitable treatment was regarded as relatively unimportant. At the same time, early drafters did anticipate some of the most contentious issues in modern investment law, including treaty shopping, shareholder protection, and the 'no greater rights' proviso.