Environmental Engineering Reference
In-Depth Information
governmental realm.
20
The major difference between international investment arbi-
tration and international commercial arbitration is that “investment” claims
)
are based on international law established by investment treaties (treaty claims)
(e.g. BITs).
(
...
'
21
Thus, international investment arbitration encompasses a kind of
review of governmental acts, public interests and policies.
22
Commercial arbitra-
tion, on the other hand, deals with issues of contractual behaviors.
23
International
investment arbitration results from a sovereign act, whereas international commer-
cial arbitration is constituted by a private act.
24
To find the best arbitration institution
for the Desertec Concept, both forms of arbitration require a separate assessment.
Both forms of international arbitration share an important aspect. By accepting
arbitration, the state freely limits its own sovereignty.
25
Thus, the state accepts
international arbitration as the valid legal method to solve the dispute in question.
'
2.1.2.1 History of Investment Protection and Arbitration
Investment protection has been a part of international law for a long time and first
appeared in a major way at the foundation of the Hanse in the thirteenth to
fourteenth century.
26
The next big step followed in 1796, when the US and France
negotiated a Treaty in Friendship, Commerce and Navigation, which dealt with the
issue of
27
Combined with the 1794 Jay Treaty, international investment protection was on its
way to becoming one of the most important tools of international law. Today
investment arbitration is an important part of modern international law.
28
(
...
) protection of alien property by the rules of international law.
'
'
2.1.2.2
International Investment and the Treatment of Aliens
Since investment protection is a part of international investment, it mainly deals
with the treatment of aliens.
29
This was also highlighted by Judge Read, who
20
Harten and Loughlin (
2006
), 121 (126).
21
Also a state can be a party in international investment and commercial arbitration, in: Horn
(
2008
), 587 (591); Moss (
2009
), 782 (784); Within investment arbitration, the state gives a binding
commitment to all future cases, unlike in commercial arbitration, where it is a case to case
decision, in: Harten and Loughlin (
2006
), 121 (142).
22
International law is above domestic regulations, in: Moss (
2009
), 782 (784); Harten and
Loughlin (
2006
), 121 (146); Horn (
2008
), 587 (591).
23
Moss (
2009
), 782 (784-785).
24
Harten and Loughlin (
2006
), 121 (140).
25
Ruchay (
1996
), 69 (85).
26
Tietje (
2010
), 5 (5).
27
Dolzer and Schreuer (
2008
), 11.
28
Sornarajah (
2010
), 77-79.
29
Whereby expropriation was of main concern, in: Metje (
2008
), 73; Tietje (
2010
), 5 (5-6);
Verdross and Simma (
2010
), 801-803 paras 1212-1213; cf Herrmann et al. (
2007
), § 17 para 789;
Shaw (
2008
), 823; Michaelis, Salomon in Hilf and Oeter (
2010
), § 15 para 7.
