Investment Treaty Arbitration and Public Law by Gus Van Harten

AuthorAndrew Newcombe
Publication Date01 Jan 2008
GusVan Harten,Investment Treaty Arbitration and Public Law,240pp,hb
d60.00, Oxford: OxfordUniversity Press, 2007
On 20 August 2007, an arbitral tribunal constituted under a bilateral investment
treaty (BIT) between Argentina and France awarded almost US$100 million to
the French multinational Vivendi Universal for Argentina’s breach of the BIT.
This is one of over 40 investment treaty arbitrations against Argentina that, to
date, have resulted in six signi¢cant awards against the country totalingUS$775
According to a recent United Nations Conference onTrade and Development
report, the international investment treaty regime consists of a network of over
2500 BITs and 241bilateral or trilateral free trade and investment agreements. By
the end of 2006, foreign investors had commenced over 250 investment arbitra-
tions against states claiming to have been unfairly treated in ways that breach
investment treaty protection standards.
The continued expansion of the investment treaty regime, an explosion of
investor-state arbitration claims since the late1990s, and a growing body of invest-
ment treaty arbitral jurisprudence provide fertile ground for a critical review of
this emerging regime. InvestmentTreatyArbitration and Public Law, based on the Van
Harten’s PhD thesis, is the ¢rst English-language monograph to focus on the
development of this specialized ¢eld of international law. Thoroughly engaging,
the book provides a thoughtful and critical re£ection on the use of international
arbitration to resolve regulatory disputesbetween foreign investors and states.
The ¢rst ¢ve chapters provide a well-researched and comprehensive history of
international investment law and the development of the international invest-
ment treaty regime.These chapters bring togethera wealth of historical materials
and commentary, providing one of the best available and current descriptions of
the development of the investme nt treaty regime.
Van Harten begins his historical foray by outlining the long-standing con£ict
between capital-exporting and capital-importing states over foreign investment
protection. He then addresses developments in the early 20th Century through
to the exponential growth of BITs since the late 1980s, the demise of the draft
Multilateral Agreementon Investment and the growth in investmenttreaty arbi-
trations, including the array of claims againstArgentina arising fromits economic
crisis in the early 2000s.
Chapters 3, 4 and 5 elaborate on the regime’s basic legal framework.T he typical
BITcombi nes high levels of investment protection through speci¢ed standards of
treatment, including non-discrimination, fair and equitable treatment and the
requirement for compensation for expropriation. Standards of treatment are
enforced through state-to-state dispute resolution, but more importantly by
investor-state arbitration proceedings, through which arbitrators are able to
review virtually any governmental conduct that a¡ects foreign investment.The
resultingarbitral awards are binding on states, can be enforced under international
arbitration treaties and are subject to very limited review.
In these chapters,Van Harten advances three claims. First, the advent of invest-
ment treaty arbitration is a revolutionary development in international adjudica-
tion. Second, investment treaty arbitration is a form of public law adjudication
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
(2008) 71(1) 145^158

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