Good Faith and International Economic Law

The past two decades have seen a significant proliferation of trade and investment treaties around the world. States are increasingly negotiating agreements that regulate both trade and investment, such as the Trans-Pacific Partnership Agreement and the Transatlantic Trade and Investment Partnership. The number of investor-state dispute settlement cases is rapidly accumulating each year, yet states' enthusiasm for investor-state arbitration has become more qualified as concern has intensified that the system can be abused by foreign investors. Good faith is therefore becoming increasingly important as a principle, particularly in the investment context, due to disputes about investor conduct such as corporate restructuring in order to gain the protection of a particular investment treaty regarding an existing or foreseeable dispute, and States' responses to public policy concerns through attempts to modify or terminate investment treaties in the face of ongoing or expected claims. Tribunals adjudicating investment disputes have used the principle of good faith in a haphazard and uncoordinated manner, causing serious problems of uncertainty and inconsistency. In response to these developments, this book contains the first comprehensive and integrated analysis of the treatment of good faith in international investment law, noting the broader implications of good faith in public international law and international trade law.

Auteur

Andrew D Mitchell is Professor at Melbourne Law School, Australian Research Council Future Fellow (2014-2018), Assistant Director Research at the Melbourne School of Government, Director of the Global Economic Law Network, and a member of both the Indicative List of Panelists to hear World Trade Organization disputes and the Energy Charter Roster of Panelists. In addition to his Melbourne teaching, Mitchell has taught law at Georgetown University, Bond University, Monash University, and the University of Western Ontario, and to Australian and overseas government officials for the Australian Attorney-General's Department and Department of Foreign Affairs and Trade, the International Development Law Organization, and the Canadian International Development Agency. Mitchell also consults for states, government departments, the private sector and international organizations. M Sornarajah LLB (Ceylon), LLM (Yale), LLM, PhD, LLD (London) is CJ Koh Professor at the Faculty of Law of the National University of Singapore. He was previously the Tunku Abdul Rahman Professor of International Law at the University of Malaya at Kuala Lumpur and Head of the Law School of the University of Tasmania, Australia. Hewas the Director of the UNCTAD/WTO Programme on Investment Treaties, Pretoria and New Delhi. He is a Fellow of the Australian Centre for International Commercial Arbitration and is on the Regional Panel of the Singapore International Arbitration Centre. He has been arbitrator or counsel in several leading investment arbitrations. He has published extensively in the areas of international commercial arbitration, public international law and international investment law. He is an Advocate of the Supreme Court of Ceylon, an Advocate and Solicitor of the High Court of Singapore, and a Solicitor of the High Court of England and Wales. Tania Voon is Professor at Melbourne Law School and was Associate Dean (Research) until mid-2014. She is a former Legal Officer of the WTO Appellate Body Secretariat and has previously practised law with Mallesons Stephen Jaques and the Australian Government Solicitor and taught law at Georgetown University, the University of Western Ontario, and several Australian universities. Tania undertook her Master of Laws at Harvard Law School and her PhD at the University of Cambridge. Tania is a member of the Roster of Panelists for the Energy Charter Treaty and of the Indicative List of Governmental and Non-Governmental Panelists for resolving WTO disputes.

Contenu

1. M Sornarajah: Introduction; 2. Andreas R Ziegler and Jorun Baumgartner: Good Faith as a General Principle of (International) Law; 3. Eric de Brabandere and Isabelle Van Damme: Good Faith in Treaty Interpretation; 4. Tania Voon, Andrew D Mitchell, and James Munro: Good Faith in Parallel Trade and Investment Disputes; 5. Stephan W Schill and Heather L Bray: Good Faith Limitations on Protected Investments and Corporate Structuring; 6. M Sornarajah: Good Faith, Corporate Nationality, and Denial of Benefits; 7. Martins Paparinskis: Good Faith and Fair Equitable Treatment in International Investment Law; 8. Andrew D Mitchell and Tania Voon: Conclusion