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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Romesh Weeramantry Foreign Legal Consultant, Clifford Chance, Hong Kong
By Campbell McLachlan, Laurence Shore, and Matthew Weiniger
ISBN 978-0-19967-679-8
Oxford University Press
2017 Edition
704 pages,
This second edition, published almost a decade after the first edition, is a masterful work. The book is tightly packed with well-researched and practical expositions on relevant investment treaty provisions and case law. At the same time, the authors have commendably adopted a simplicity of language style and content structure that was a hallmark of the first edition.
The strength of the second edition – as with the first – lies in its analytical method: scrutiny of relevant cases that develops a real-world understanding of the current state of investment law. This brings to mind a recollection made by one of the co-authors, Matthew Weiniger, in an interview conducted by Ian Laird.1 In the interview, Mr Weiniger noted that the authors had contemplated adopting a rule-based approach that distilled a comprehensive set of positive rules from the deluge of investment treaty case law (now upwards of 700 awards and decisions); but the authors decided that too many exceptions still prevailed, making it difficult for such a rule-oriented method to be beneficial. In the view of the reviewer, the authors made the correct choice; the understanding gained of the book's subject matter through deployment of the case analysis method is clear and extremely insightful.2
The book is a testament to the merits of the case law approach to examining the content of law and its application.
The authors map the field of investment treaty law by extracting principles enshrined in investment treaties through examination of case law and general principles of international law. This second edition – like the first – is divided into three parts:
These general topics signpost the way for the reader to navigate with relative ease through the complexities of this specialist legal discipline; leading cases are discussed, often with a concise exposition of consistent – and, where applicable, divergent – case lines, as well as exceptions or outliers. At the end of chapters, valuable syntheses and conclusions are provided, which enable a quick survey of the area and its main cases and issues. These sections provide more than simple overviews. They go further, for example, by presenting information in a way that facilitates evaluation of any potential investment treaty claims that the reader may have. A very good instance of this value-added writing style is found in Chapter 8 on expropriation. The authors thoughtfully present at the end of this Chapter several questions designed to ascertain whether an expropriation claim may exist (see para. 8.168). For a practitioner, these quick reference points are invaluable when answers are required within a short timeframe.
Other indicators that show the authors have gone the extra distance to create a work of excellence include:
The description of the contents of the work noted above raises a question whether the book's subtitle ‘Substantive Principles’ may create confusion for prospective readers. The subtitle appears to convey that the work is limited only to substantive rights, i.e. those addressed in part three (Chapters 7 through 9), and not the procedural and jurisdictional issues that are covered in Chapters 3 through 6. As a consequence, the impression could be given to prospective readers that the work does not deal with procedural and jurisdictional issues and may therefore not consider consulting the book if they require only an understanding of procedural or jurisdictional issues in investment law. That is to be regretted as the book provides one of the best examinations of these issues on the market.
The work as a whole gives weight to the proposition that a ‘common law’ of investment treaty protection has emerged as a consequence of public access to hundreds of investment arbitration awards and decisions. ‘Common law’ used here is not the strict form of a de jure doctrine of binding precedent but relates to a softer framework – a de facto doctrine, in which strong and rigorous reasoning of one tribunal (often on similar treaty provisions) persuades or inspires other tribunals to follow the same or comparable reasoning. And there is a wider dimension to this commonality, for instance, the borrowing by treaty drafters of treaty language contained in other treaties, the ability to use provisions of other treaties through most favoured nation clauses, and the practice of counsel in virtually all cases to rely heavily on awards and decisions rendered in other investment treaty arbitrations. It is not surprising therefore that the authors identify an emerging ‘common law of investment protection, with a substantially shared understanding of its general tenets’ (see para. 1.75).
The breadth and scope of the subject matter addressed in the book could have resulted in a tome that was well in excess of second edition's 450 pages of text (excluding annexes). This is approximately 100 pages more than the text of the first edition but given the amount of new case law rendered since that edition, the authors have done an admirable job in containing the size of the work. They marshal and present the now vast universe of relevant case law in an eminently readable style. This skill of the authors was recognised by Dr. Parlett when reviewing the first edition:
[T]he extensive coverage of substantive principles in the book makes it an invaluable reference work for practitioners and scholars alike … It provides a manageable digest of the intimidating and rapidly accruing case law in this field, in its rightful historical context.4
There is no doubt that this view touches on some of the reasons why the first edition became a best seller and was also cited with approval by tribunals.5 The statement of Dr. Parlett applies to the second edition with equal force, and this reviewer sees no reason why the second edition will not also – rightfully – take a place on investment law best-seller lists.
This second edition is a ‘must have’ practical resource for practitioners and arbitrators working on investment law claims; its depth and scholarship will also make it a ‘must consult’ work for any serious academic study of the area; its comprehensive coverage will require it to be a ‘must include’ item on any reading list designed for a course on the subject; and it should be a ‘must know’ for both policy makers and treaty drafters. This book will be an essential and worthy acquisition for any investment arbitration library.
1 Interview of Matthew Weiniger on the second edition of International Investment Arbitration: Substantive Principles conducted by Ian Laird at the 2017 Investment Claims Summer Academy, Oxford University, available at https://www.youtube.com/watch?v=0fCdn16BaFs
2 Concerns as to a rule-based approach has also recently well-articulated by the Tribunal in Vladislav Kim and others v. Republic of Uzbekistan, ICSID Case No. ARB/13/6, Decision on Jurisdiction, 8 March 2017, para. 385: ‘A characteristic of rules is that they may include more situations than appropriate (over-inclusive) and simultaneously not include situations that should be captured (under-inclusive)’.
3 See http://oxia.ouplaw.com/page/title-list.
4 Cambridge Law Journal, Vol. 67 (2008), p. 666.
5 See e.g., Desert Line Projects LLC v. The Republic of Yemen, ICSID Case No. ARB/05/17, Award, 6 February 2008, paras. 113-115; Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, 24 July 2008, para. 784; and Waguih Elie George Siag & Clorinda Vecchi v. Arab Republic of Egypt, ICSID Case No. ARB/05/15, Award, 1 June 2009, para. 595.