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The Potential Impact on Investment Arbitration of the ILC’s Work on Customary International Law

Part of: Reflections on Customary International Law and the International Law Commission’s Project

Published online by Cambridge University Press:  20 January 2017

Jeremy K. Sharpe
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A primary goal of the International Law Commission’s work on the identification of customary international law is to offer “guidance to those called upon to identify the existence of a rule of customary international law,” particularly national court judges. The ILC report, however, should be no less useful to participants in international adjudication. The report’s impact might be particularly significant in investment arbitration, which, given the field’s growing importance and impact, could greatly facilitate the ILC’s principal mandate of promoting the “progressive development of international law.”

Investment arbitration is proving hugely significant for the development of international law. The United Nations Conference on Trade and Development reported that, at the end of last year, there were 568 known cases brought under international investment agreements, including 57 cases brought in 2013 alone. There have been 98 different State respondents, including the United States, which reportedly is the ninth most frequent respondent State.

Type
Symposium: Reflections on Customary International Law and the International Law Commission’s Project
Information
AJIL Unbound , Volume 108 , 2014 , pp. 188 - 192
Copyright
Copyright © American Society of International Law 2014

References

1 Statute of the Int’l Law Comm’n, GA Res. 174 (II) (Nov. 21, 1947).

2 United Nations Conference on Trade and Development, Recent Developments in Investor-State Dispute Settlement [ISDS] 1, (Apr. 2014).

3 Id.

4 Committee on Foreign Relations, Convention on the Settlement of Investment Disputes, S. Exec. Rep’t. No. 2 (2d Sess. 1966), reprinted in 5 I.L.M. 646, 657 (1966).

5 Id.

6 SirBethlehem, Daniel, The Secret Life of International Law, 1 Cambridge J. Int’l & Comp. L. 23 (2012)Google Scholar.

7 Vaughan Lowe, International Law (2007).

8 Id. at 24.

9 Second Rep. on Identification of Customary International Law, Int’l Law Comm’n, 66th Sess., May 5–June 6, July 7–Aug. 8, 2014, 7, UN Doc. A/CN.4/672 (May 22, 2014).

10 Id.

11 Jurisdictional Immunities of the State (Ger. v. It.), Judgment, 2012 ICJ Rep. 99 (Feb. 3).

12 Teco Guatemala Holdings LLC v. Republic of Guat., ICSID Case No. ARB/10/17, Award, (Dec. 19, 2013).

13 Id.

14 Merrill & Ring Forestry L.P. v. Government of Can., ICSID Administered Case, Award (Mar. 31, 2010).

15 SAUR International S.A. v. Republic of Arg., ICSID Case No. ARB/04/4, Award (May 22, 2014).

16 Glamis Gold, Ltd. v U.S., ICSID, Award (June 8, 2009).

17 Reisman, W. Michael, ‘Case Specific Mandates’ versus ‘Systemic Implications’: How Should Investment Tribunals Decide? : The Freshfields Arbitration Lecture , 29 Arbitration Int’l 131, 135 (2013)CrossRefGoogle Scholar.

18 Id.