The Interpretation of International Investment Law: Equality, Discrimination and Minimum Standards of Treatment in Historical Context.

Author:Schwebel, Stephen M.
Position:Book review
 
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The Interpretation of International Investment Law: Equality, Discrimination and Minimum Standards of Treatment in Historical Context. By Todd Weiler. Leiden, Boston; Martinus Nijhoff Publishers, 2013. Pp. xlvi, 526. Index. $199, 164 [euro].

Todd Weiler, a Canadian litigator and scholar in the field of international investment law (IIL), has written a substantial and ambitious book, The Interpretation of International Investment Law: Equality, Discrimination and Minimum Standards of Treatment in Historical Context. After an extended historical analysis treating what he sees as the origins of the international legal obligations of states in that field, Weiler turns to the "seismic shift" brought about by the introduction of investor-state arbitration, a shift "that would render the old way of presenting and resolving disputes, diplomatic protection, virtually obsolete" (p. 12). He concentrates on refuting what he maintains are four "contemporary constructions of IIL standards that do not measure up to the scrutiny of historical analysis":

(i) That the ... standards [of full protection and security and fair and equitable treatment (FET)] are both part and parcel of the [customary international law minimum standard of treatment of aliens (CILMSTA)] and, as such, neither standard portends a meaning independent from that which is intended under the CILMSTA;

(ii) That the only way it has ever been possible to demonstrate non-compliance with the CILMSTA has been to satisfy the orthodox test of establishing binding international custom (i.e. by tendering sufficient evidence of State practice and opinio juris--about the existence of a specific rule of conduct--to rebut the [implicit] presumption that State action cannot be bound absent express consent);

(iii) That the FET standard is either a facsimile or a limited outgrowth of the customary international law prohibition of denial of justice...; and

(iv) That non-compliance with either a [national treatment] or [most-favored-nation] treatment standard can only be established in cases where it has also been demonstrated that the host State officials intended to discriminate on the basis of nationality. (P. 17)

In the chapters of the book that follow, Weiler maintains that "each of these propositions (i.e. IIL myths) is debunked as historically unsound" (id.). He analyzes the four myths with verve and a considerable marshaling of supportive scholarship. In particular, he pursues the deconstruction of...

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