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International Investment Protection and Constitutional Law
This book develops a conceptual framework that captures not only the tensions between constitutional values that are common to liberal democracies – human rights, democracy, and the rule of law – and the investment treaty regime, but also the potential for co-existence and complementarity.
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Critical Acclaim
Contributors
Contents
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This book develops a conceptual framework that captures not only the tensions between constitutional values that are common to liberal democracies – human rights, democracy, and the rule of law – and the investment treaty regime, but also the potential for co-existence and complementarity.
Contributions from leading experts in the field address how different systems of constitutional law interact with the investment treaty regime. Chapters provide a detailed overview of the various forms of interaction, and critically engage with the competing claims for supremacy that constitutional law and international investment law formulate. The book also addresses the reactions within the investment treaty regime to the demands formulated by constitutional law, in particular the use of constitutional analogies to understand international investment law and investor-state dispute settlement.
Investigating the leading questions and issues surrounding this growing topic, this book will be an ideal read for students and scholars interested in financial, economic, and international law. Practitioners of constitutional law will also benefit from this innovative book.
Contributions from leading experts in the field address how different systems of constitutional law interact with the investment treaty regime. Chapters provide a detailed overview of the various forms of interaction, and critically engage with the competing claims for supremacy that constitutional law and international investment law formulate. The book also addresses the reactions within the investment treaty regime to the demands formulated by constitutional law, in particular the use of constitutional analogies to understand international investment law and investor-state dispute settlement.
Investigating the leading questions and issues surrounding this growing topic, this book will be an ideal read for students and scholars interested in financial, economic, and international law. Practitioners of constitutional law will also benefit from this innovative book.
Critical Acclaim
‘This book offers a unique comparative contribution to the incredibly important but insufficiently investigated intersections between investment law and constitutional law. As legal systems in Europe and elsewhere grapple with these common problems at both doctrinal and systemic levels, this volume is essential reading for judges, arbitrators, lawyers and policymakers.’
– Peter B. Rutledge, University of Georgia, School of Law, US
‘The interface between investment law and constitutional law is an issue of increasing salience to treaty negotiators, lawyers, apex court judges, and scholars. In this impressive collection, representing a diverse range of provocative perspectives, the authors help to further a research agenda too long overlooked. Of interest to the contributors are not only investment law’s impact on national and regional constitutional systems but also the prospects of investment law as nascent global constitutional law. If investment law scholarship has been too preoccupied with discrete doctrinal developments, this book should spark new thinking about the regime’s impact on the constitutional world-at-large.’
– David Schneiderman, University of Toronto, Canada
‘Thanks to Stephan Schill, Christian Tams and the colleagues they have assembled, the reader is given a wide-ranging insight to the various interactions between investment law and constitutional law. The book shows us that we are at a time of multiple encounters between these two bodies of law. The points of synergy and tension in these encounters are explored, such as the potential for shared values across these legal disciplines, the constraints that constitutional law imposes on investment law and arbitration, as well as the constitutionalization trends in investment law, among others. This is a must read book for those who wish to grasp the fundamental evolution of international economic law, and more especially investment law.’
– Laurence Boisson de Chazournes, University of Geneva, Switzerland
– Peter B. Rutledge, University of Georgia, School of Law, US
‘The interface between investment law and constitutional law is an issue of increasing salience to treaty negotiators, lawyers, apex court judges, and scholars. In this impressive collection, representing a diverse range of provocative perspectives, the authors help to further a research agenda too long overlooked. Of interest to the contributors are not only investment law’s impact on national and regional constitutional systems but also the prospects of investment law as nascent global constitutional law. If investment law scholarship has been too preoccupied with discrete doctrinal developments, this book should spark new thinking about the regime’s impact on the constitutional world-at-large.’
– David Schneiderman, University of Toronto, Canada
‘Thanks to Stephan Schill, Christian Tams and the colleagues they have assembled, the reader is given a wide-ranging insight to the various interactions between investment law and constitutional law. The book shows us that we are at a time of multiple encounters between these two bodies of law. The points of synergy and tension in these encounters are explored, such as the potential for shared values across these legal disciplines, the constraints that constitutional law imposes on investment law and arbitration, as well as the constitutionalization trends in investment law, among others. This is a must read book for those who wish to grasp the fundamental evolution of international economic law, and more especially investment law.’
– Laurence Boisson de Chazournes, University of Geneva, Switzerland
Contributors
Contributors: Angelos Dimopoulos, Rhea Tamara Hoffmann, Till Patrik Holterhus, Markus Krajewski, Hannes Lenk, Joshua Paine, José Gustavo Prieto Muñoz, Sabrina Robert-Cuendet, Stephan W. Schill, Christian J. Tams, Valentina Vadi
Contents
Contents:
PART I INTRODUCTION
1 International investment protection and constitutional law:
Between conflict and complementarity 2
Stephan W. Schill and Christian J. Tams
PART II FRAMING THE DEBATE: HUMAN RIGHTS –
DEMOCRACY – RULE OF LAW
2 Re-embedding foreign investment through human rights
obligations for business entities: A nightmare or a noble dream? 39
Markus Krajewski
3 International investment law, democratic legitimacy,
and the protection of human rights: Transforming
constitutional property protection 56
Rhea Tamara Hoffmann
4 ‘Which it seeks to advance in the wider world’ – The
EU’s legal obligation to promote the rule of law in
international investment law 94
Till Patrik Holterhus
PART III CONSTITUTIONAL LAW LIMITS IN
COMPARATIVE PERSPECTIVE
5 Investor-state dispute settlement and French constitutional
law: The Conseil constitutionnel’s decision of 31 July
2017 on CETA 119
Sabrina Robert-Cuendet
6 Constitutional courts and international investment law in
Latin America: Between escalation and conditional coexistence 149
José Gustavo Prieto Muñoz
7 The constitutional fundamentals of EU investment policy 180
Angelos Dimopoulos
8 Constraints on intra-EU BITs in the Union legal order 221
Hannes Lenk
PART IV CONSTITUTIONAL ANALOGIES IN
INTERNATIONAL INVESTMENT LAW
9 Investment protection standards as global constitutional law 255
Joshua Paine
10 Inter-civilizational approaches to investor-state dispute
settlement: Global constitutional adjudication or
international adjudication? 306
Valentina Vadi
Index 353
PART I INTRODUCTION
1 International investment protection and constitutional law:
Between conflict and complementarity 2
Stephan W. Schill and Christian J. Tams
PART II FRAMING THE DEBATE: HUMAN RIGHTS –
DEMOCRACY – RULE OF LAW
2 Re-embedding foreign investment through human rights
obligations for business entities: A nightmare or a noble dream? 39
Markus Krajewski
3 International investment law, democratic legitimacy,
and the protection of human rights: Transforming
constitutional property protection 56
Rhea Tamara Hoffmann
4 ‘Which it seeks to advance in the wider world’ – The
EU’s legal obligation to promote the rule of law in
international investment law 94
Till Patrik Holterhus
PART III CONSTITUTIONAL LAW LIMITS IN
COMPARATIVE PERSPECTIVE
5 Investor-state dispute settlement and French constitutional
law: The Conseil constitutionnel’s decision of 31 July
2017 on CETA 119
Sabrina Robert-Cuendet
6 Constitutional courts and international investment law in
Latin America: Between escalation and conditional coexistence 149
José Gustavo Prieto Muñoz
7 The constitutional fundamentals of EU investment policy 180
Angelos Dimopoulos
8 Constraints on intra-EU BITs in the Union legal order 221
Hannes Lenk
PART IV CONSTITUTIONAL ANALOGIES IN
INTERNATIONAL INVESTMENT LAW
9 Investment protection standards as global constitutional law 255
Joshua Paine
10 Inter-civilizational approaches to investor-state dispute
settlement: Global constitutional adjudication or
international adjudication? 306
Valentina Vadi
Index 353
