The backgrounds of the editors of this volume—as professional lawyers, consultants and academics— makes them ideally suited to present a narrative on international investment law (IIL) that ‘brings theory into practice’. They seek to ‘explore new ways’ to ‘resolve concrete problems and disputes in a more just, fair, and coherent way’ (1) and aim to present and revisit ‘the’ conceptual foundations of IIL. These are weighty ambitions, against which this volume is to be measured.
The book is organized in three parts and comprises 16 chapters. The first part of the book examines the ‘infrastructure and characteristics’ of the IIL regime. Pauwelyn's opening chapter identifies three characteristics of IIL; its decentralized composition, its organic emergence and its contested but gradually evolving nature. Kriebaum (Chapter 2) compares the standards of protection of property under the law of aliens through diplomatic protection, under IIL and under human rights law. Paparinskis in Chapter 3 examines whether and to which extent investment treaties can be construed by drawing analogies from human rights law, the law of treaties concerning third parties and diplomatic protection. In Chapter 4, Schill presents his idea of IIL as a ‘multilateral order’. According to this idea, IIL is not just the sum of its parts; instead, it can be systemically integrated by applying its various legal rules in a generalized and non-discriminatory fashion. In Chapter 5, Hirsch compares IIL and human rights law by asking how the actors in these fields of law are socialized. Wu (Chapter 6) searches for the international trade law origins of IIL. He concludes that the ‘normative orientations’ of both regimes fundamentally differ as regards their overall design, the process of treaty formation, their substance and their approach to treaty interpretation.
The second part of the book presents the ‘building blocks' of IIL and arbitration. The opening chapter by Grisel emphasizes the dominant role of precedents as the primary material source of IIL, significantly diminishing the relevance of traditional domestic and international sources of law. Puig (Chapter 8) presents three conceivable conceptual justifications of investor–State dispute settlement: procedural justice, corrective justice and deterrence. He neatly shows that ‘the construction of substantive law entails assumptions about the procedures that will apply when that substantive law is enforced’ (256). Chapter 9 by Kurtz aims at countering the legitimacy crisis of IIL by conceptualizing arbitral tribunals as (constrained) agents of the contracting State parties instead of independent trustees of IIL. Schultz (Chapter 10) criticizes—rightfully one may add—the tendency of arbitral tribunals to invoke the general objective of consistent interpretation and application of IIL to increasingly behave like law-makers. Chapter 11 by Viñuales addresses the difficult relationship between IIL and the concept of State sovereignty. Focusing on notions such as the police powers doctrine or necessity, he observes that the very nature of investment treaties as leges speciales to the principle of sovereignty was turned upside down by arbitral tribunals. Douglas (Chapter 12) closes the second part of the book by investigating and systematizing the ways in which arbitral tribunals approach jurisdiction, liability and quantum.
The third—and comparatively brief—part of the book addresses the difficulties of ‘managing regime stress within international investment law’. To start with, Van Aaken discusses how States can ensure that independent adjudicative bodies do not free themselves from the treaties to which they owe their existence. The tighter they are controlled by the State parties, so she argues, the more the credibility of the State parties' commitments under the treaty is diminished. Mills (Chapter 14) follows up on the previous chapter by describing how investment treaties may balance the competing interests of their parties. Next, he examines how dispute resolution may subsequently disturb this equilibrium due to factors such as the influence of third parties or the impact of public scrutiny. Maupin (Chapter 15) therefore proposes to move away from a one-size-fits-all approach to dispute settlement. Instead, she recommends introducing different procedural models that are specifically tailored to the respective class of investment disputes. Chapter 16 by Waibel elucidates the options for coordinating proceedings that are related to the same facts. According to him, such coordination may, for example, be achieved by adapting treaty language. Nevertheless, he contends that the interests of State actors might ultimately prevent such coordination from taking place.
All in all, the editors have no doubt succeeded in compiling a significant volume that covers both fundamental questions and current controversies in depth. If there were one point of criticism, it would be that the volume might have benefitted from adding a concluding chapter in which the editors could have presented their concluding remarks on the various problems and solutions that are neatly presented throughout the volume. Such concluding remarks might have recapitulated the reasons why IIL currently fails—as the editors contend—to resolve problems in a sufficiently just, fair and coherent way. It might also have provided an opportunity to recall the main propositions to remedy the current shortcomings within IIL which are identified. Further, some readers may consider that the contributors predominantly have a Western background. There is, in itself, nothing wrong with that. However, one may wonder whether this fits ideally with the aim of setting out ‘the’ foundations of a particular field of law for which more than one narrative may be found.
Nonetheless, the volume offers the reader not only valuable doctrinal analyses but also highly practical reform proposals. Therefore it is to be hoped that academics, arbitrators and negotiators alike will carefully study it.
