State consent, investor interests and the future of investment arbitration: Reanalyzing the jurisdiction of investor-State tribunals in hard cases.

摘要

While the international investment regime has enjoyed an extended period of enthusiastic subscription, this euphoria has begun to recede in some quarters. Although sovereign consent to waive immunity is at the heart of investor-State arbitration, many States feel that this consent has been illegitimately expanded. In this regard, this thesis examines the degree to which the interpretive approach taken to state consent to arbitration can affect whether an investment tribunal will assert jurisdiction over an investment dispute. Investor-State tribunals often confront 'hard cases' where their authority to decide a dispute is vigorously contested by respondent host states. This thesis examines the degree to which investment tribunals have an obligation to adopt a cautious, state-centered approach to the interpretation of state consent to arbitration in such cases. It then considers the different means available to States to further impose such an obligation on investment tribunals as a matter of international law.