Law applicable to claims asserted in international investment disputes

Abstract

Purpose

This article aims to deal with international investment disputes, with a focus on the nature of the law applicable to the merits of such disputes.

Design/methodology/approach

The procedure for determining the law applicable in investment disputes, the phases of determination and the impact thereof on the applicable law were analyzed. The diagonality of the disputes and its impact on the law applicable to the merits from the perspective of the interaction between national and international law were also analyzed. Further, the authors focused on the nature of the host state's breach of obligations towards the investor anchored in the investment treaty, and the effect thereof on the law applicable to the merits. In this respect, the notion of the investment itself was analyzed according to the relevant BITs and MITs. Finally, the authors analyzed the applicability of the Ordre Public concept to investment disputes.

Findings

The study provided practical demonstrations and examples of choice of law and application issues as resolved by the tribunals established under the ICSID.

Research limitations/implications

The article deals mainly with the ICSID proceedings. Another should be also analyzed.

Originality/value

The paper provides a new insight into issues of the law applicable to investment disputes by analyzing this problematic in relation to all stages of investment arbitration proceedings. Particularly it took an innovative approach in shedding light on and analyzing the applicability of the Ordre Public concept in relation to investment protection, especially in relation to Article 52 of the ICSID Convention, and the recognition and enforcement proceedings of arbitral awards issued in the course of investment arbitration.

Citation

Bělohlávek, A.J. and Černý, F. (2012), "Law applicable to claims asserted in international investment disputes", International Journal of Law and Management, Vol. 54 No. 6, pp. 443-471. https://doi.org/10.1108/17542431211281945