This is a summary of two articles I produced in an extended exchange with Susan D. Franck and others in the Yearbook on International Investment Law & Policy. The exchange dealt with the role of empirical methods in testing for possible bias in investment treaty arbitration and with various...

A number of commentators have contributed to an ongoing debate about the definition of investment by expressing their support for an objectivist theory or the ‘‘outer limits'' approach as advocated in Salini v. Morocco. However, this article argues that neither the Salini test nor the rival...

This paper examines the role of third-party funding (TPF) in international investment arbitration. This can take many shapes and forms but basically, the TPF funder is an investor in a monetary claim lodged before a court or arbitral tribunal. By involving a TPF funder, a claimant may attract...

The North American Free Trade Agreement (‘NAFTA' or ‘the Agreement'), ratified in 1994, is the first free trade agreement to openly incorporate environmental provisions. Its ratification engendered a sustained debate on the effects of trade on environmental degradation that has hardly abated...

The investor-state arbitration process has been commonly used under bilateral trade and investment agreements since first adopted by the North American Free Trade Agreement (NAFTA) in 1994.This mechanism has well served the investment interests of multinational corporations. In recent times,...

The ICJ judgment of Diallo case gives us the opportunity to discern the coordination and competition between traditional diplomatic protection and international investment protection regime. In this preliminary observations, I summary three possible approaches of the ICJ tribunal concerning the...

The question of expropriation is at the heart of modern foreign investment law, yet remains an area of great uncertainty and ambiguity. Neither treaty law nor existing jurisprudence provides clarity on the questions of when government action amounts to an expropriation or what to do if does.This...

International investment arbitration has grown substantially, but has also increasingly been the subject of criticism, inter alia because arbitration conducted under the auspices of ICSID did not provide for any mechanism to monitor claims that are manifestly without legal merit. In 2006, ICSID...