Full Description
This book breaks open new frontiers in historical research on investor-state arbitration (ISA) by discussing long-forgotten case law, the first-hand involvement with early ISA by key historical political figures such as Winston Churchill and President Taft, early 20th-century debates in Canada's parliament, and treaty-based ISAs that considerably predate the advent of the BIT. Stemming from extensive original archival research conducted at numerous private and public archives located in five countries and on two continents, this book ties these (and other) fascinating factual underpinnings together to argue that—contrary to conventional wisdom—direct ISA has long been an important vehicle of governance.
Contents
Acknowledgments
1 Introduction
1 Setting the Stage
2 Rich Past Notwithstanding ... - a Field Lacking in History
3 Aims of the Book
4 Methodology
4.1 Historical Approach and Its Limitations
4.2 Temporal Scope and (Lack of) Periodization
4.3 Conceptual Clarifications
5 The Structure of the Argument
2 Historical Investor-State Arbitration as Private Dispute Settlement: a Breakdown
1 Introduction
2 What was at Stake in Historical Investor-State Arbitration? Beyond the Disputing Parties' Interests
2.1 The Nature of the Investor-State Relationships Underlying the Historical Investor-State Arbitrations
2.2 The Anatomy of the Historical Investor-State Disputes
3 Legal Indeterminacy and the Room for Discretionary Decision-Making in Historical Investor-State Arbitration
4 A Key Role for Private Actors in Historical Investor-State Arbitration
4.1 Private Party Control over Claims
4.2 The Quest for Neutrality and the Externalization of Decision-Making
4.3 Auxiliary Private Actors
5 Similar in Dissimilarity: the Pervasiveness of Historical Investor-State Arbitration's Key Features
5.1 Cutting across the Different Legal Frameworks Underlying Historical Investor-State Arbitration
5.2 Transcending the Private Law/Public Law Conceptual Chasm
6 Conclusions: the Breakdown of the Conception of Historical Investor-State Arbitration as (Just) Private Dispute Settlement
3 Historical Investor-State Arbitration and the Cost of Governance
1 Introduction
2 Deciding on Matters Relating to Public Debt
2.1 Hambros and Lazard v Romanian Monopolies Institute
2.2 Peru v Peruvian Corporation
3 Determining the Cost of State Appropriation of Investor Property
3.1 Colombia v Cauca Company
3.2 The Grand Trunk Railway Arbitration
3.3 The Jaffa-Jerusalem Railway Arbitration
4 Imposing Liability in Investor-State Relations for Breach of Obligations
4.1 Duff Development Company v Government of Kelantan I and II
4.2 Sudan v Turriff
5 Size Matters: Potential Ramifications and Governance Implications of Monetary Awards by Historical Investor-State Arbitral Tribunals
6 Conclusions
4 Governing by Instruction: Directing State Conduct through Historical Investor-State Arbitration
1 Introduction
2 Directing State Entity Conduct through Adjudicative (Arbitral) Review: Czechoslovakian Administration v RCA
2.1 Radio Corporation of America: from Inception to Independence
2.2 The Establishment of RCA's Czechoslovakia Circuit: the First Direct US-Czechoslovakia Radio-Telegraphic Route
2.3 Trouble on the Horizon: Mackay Radio Sparks a Rift between the RCA and the Czechoslovakian Administration
2.4 The Arbitration
2.5 The Immediate (albeit Temporary) Fallout: Czechoslovakia Abstains from Opening an Additional Telegraphic Circuit with the US
3 Directing State Conduct through Primary Decision-Making: the Post-World War I Peace Treaty Railway Arbitrations
3.1 The Peace Treaties and the Need for Railway Reorganisation Following the Break-up of the Austro-Hungarian Empire
3.2 Sopron-Köszeg Local Railway Company v Austria and Hungary
3.3 Zeltweg-Wolfsberg and Unterdrauburg-Woellan Railway Company v Austria and Yugoslavia
3.4 Barcs-Pakrac Railway Company, Ltd v Hungary and Yugoslavia
3.5 The Peace Treaty Railway Arbitrations and Historical Investor-State Arbitration as an Avenue for Directing State Conduct
4 Historical Investor-State Arbitration as a Means of Directing State Conduct: a Recurring Theme
5 Conclusions
5 Developing the Law through Historical Investor-State Arbitration
1 Introduction
2 Developing the Law for the Disputing Parties: the Power and Traction Concession in Greece
2.1 The Power and Traction Concession
2.2 The Arbitrations
2.3 The Implications of the Power and Traction Concession Cases - Governing an Investor-State Relationship through Arbitral Development of the Law
3 Developing the Law for a Disputing Party's Relations with Third Parties: RCA v China
3.1 The RCA's Entrance into the Chinese Market Amidst Uncertain Times
3.2 The RCA's Troubles Spread to China: the Mukden Incident and China's Signing of a Contract with Mackay Radio
3.3 The Arbitral Proceedings
3.4 The Reverberations of the RCA v China Arbitration: RCA's Recalibration of Relations with Third Parties Following the Tribunal's Decision
4 Developing the Law beyond the Disputing Parties
4.1 Into the Multiverse: the Gradual Shift toward the Reliance on Previous Case Law in Historical Investor-State Arbitration
4.2 Generating Normativity that Governed Investor-State Relations
5 Conclusions
6 Historical Investor-State Arbitration as a Mode of Governance
1 A Recapitulation of Investor-State Arbitration's Historical Role in Governance
2 With an Eye to the Future: Toward a Comprehensive Understanding of Investor-State Arbitration's Role as a Mode of Governance
Index of Authorities
