Jürgen Kurtz

ADJUDGING THE EXCEPTIONAL AT INTERNATIONAL INVESTMENT LAW: SECURITY, PUBLIC ORDER AND FINANCIAL CRISIS

This article examines the impact of international law on the ability of States to mitigate the effects of financial crises. It focuses on the invocation of investment treaty disciplines in the aftermath of the 2001–2002 Argentine financial crisis, and the adjudication of Argentinas defence of a state of necessity under both subject treaties and at customary international law. The article uncovers three interpretative methods in the jurisprudence on the relationship between the treaty exception and customary plea of necessity: methodologies I (confluence), II ( lex specialis ) and III (primary-secondary applications). Method I is the dominant approach in the jurisprudence and the most restrictive of the three readings. The article argues that method I is mistaken both on a careful interpretation of the two legal standards and on a broader historical analysis of the emergence of investment treaty norms. Given these substantive flaws, the article isolates the motivations to account for the popularity of this method through a close reading of the awards. These reveal continuing tensions in the field, not least the problematic suggestion that a single value of protection should exclusively inform our understanding of the purpose of investment treaties. These sociological features of investor–State arbitration should, it is suggested, inform our choice on other interpretative methods. This comes down to an election between methods II ( lex specialis ) and III (primary–secondary applications). Method III is the most convincing and coherent reading of the relationship between the two legal standards. The article concludes by offering a framework to address the key interpretative questions implicated in that method: (a) the identification and scope of the notion of ‘public order’ and a States ‘essential security interests’; and (b) the appropriate test of ‘necessity’ or means–end scrutiny.

Adjudging the Exceptional at International Law: Security, Public Order and Financial Crisis

Abstract: This paper examines the impact of international law on the ability of states to mitigate the effects of financial crises. It focuses on the invocation of investment treaty disciplines in the aftermath of the 2001-2 Argentine financial crisis and the adjudication of Argentina’s defence of a state of necessity, under both subject treaties and at customary international law. The paper uncovers three interpretative methods in the jurisprudence on the relationship between the treaty exception and customary plea of necessity: methodologies I (confluence), II ( lex specialis ) and III (primary-secondary applications). Method I is the dominant approach in the jurisprudence and the most restrictive of the three readings. The paper argues that method I is mistaken both on a careful interpretation of the two legal standards and on a broader historical analysis of the emergence of investment treaty norms. Given these substantive flaws, the paper isolates the motivations to account for the popularity of this method through a close reading of the awards. These reveal continuing tensions in the field, not least the problematic suggestion that a single value of protection should exclusively inform our understanding of the purpose of investment treaties. These sociological features of investor-state arbitration should, it is suggested, inform our choice on other interpretative methods. This comes down to an election between methods II ( lex specialis ) and III (primary-secondary applications). Method III is the most convincing and coherent reading of the relationship between the two legal standards. The paper concludes by offering a framework to address the key interpretative questions implicated in that method: (i) the identification and scope of the notion of “public order” and a state’s “essential security interests”; and (ii) the appropriate test of “necessity” or means-end scrutiny.

On Inter-Disciplinary and Inter-Systemic Approaches to International Investment Law

This review essay identifies two fundamental flaws in much of the secondary literature examining international investment law. The first is a clear attention to disciplines other than law in identifying and understanding the justifications for constraints on state regulation vis-a-vis foreign investment. Secondly, there are stubborn vestiges of self-containment among a sizeable set of legal commentators in this field. This typically reaches its apotheosis in instinctive and hostile opposition to usage of lessons and techniques employed in international trade law. Measured against the direction and nature of contemporary state practice, this type of older commentary is rapidly approaching an overdue expiry date. Prospects in International Investment Law and Policy marks a welcome and significant break from these flawed pathologies. Many of the contributions will shape the contours of innovative and important scholarship in this field. It is a collection that merits careful and repeated consideration.

Converging Divergences: A Common Law of International Trade and Investment

This Article observes that the recent jurisprudence between international trade and investment law is converging in a way which the free market value and public interests are duly reconciled. The Article contends that such jurisprudential convergence is structurally preordained yet historically manifested. It is structurally preordained in the sense that commerce is inherently embedded in its surrounding social environment. It is historically manifested in the sense that both regimes, despite their unique past, nonetheless featured a common ontogenetic path reflecting the embeddedness. The Article eventually crystalizes the convergence thesis into a common law, which is justifiable on both constitutional and practical grounds.

Will State Emergency Measures Trigger International Investment Disputes

Abstract The emergency measures passed to date can generally be grouped into three broad categories: measures designed to bolster the stability of the financial services industry, measures directed at the financial services industry but structured to increase the availability of credit to other sectors of the economy, and general fiscal measures designed to boost public spending and targeting select and strategic industries (including the automotive industry). This paper focuses on the first and second categories, as these are presently regarded as the most likely to engage international investment law.