Friday, January 22, 2016

Yackee on the First Investor-State Arbitration

Jason W. Yackee, University of Wisconsin Law School, has posted The First Investor-State Arbitration:    
In recent years investor-state arbitration has become ubiquitous. Foreign investors who believe the states hosting their investments have violated their rights under international law routinely sue those states before international tribunals. Most investment law experts would probably identify the origins of the field in a famous “first”, the signing of the first bilateral investment treaty (between Germany and Pakistan) in 1959. But in fact, we can trace investor-state arbitration back much further — nearly a century further — to a long forgotten but nonetheless fascinating dispute between the Suez Canal Company and Egypt, arbitrated by a commission of legal and diplomatic luminaries appointed by Napoleon III, the Emperor of France. The arbitration is fascinating, in part, because the Company’s claim of mistreatment has a strikingly modern (and perhaps even timeless) character: under what circumstances, and with what consequences, can the government of the day change its laws in order to promote its conception of the public good, where the change negatively impacts, and perhaps even destroys, the value of the foreigner’s investments? The Suez Commission’s solution, based essentially on a principle of sanctity of contract, is one that finds significant support in modern jurisprudence. Citing “the contract” is, and long has been, a powerful rhetorical and legal weapon for the aggrieved investor.