Sources of International Investment Law: Multilateralization, Arbitral Precedent, Comparativism, Soft Law
Stephan W. Schill
This chapter discusses the use of sources of international law in the settlement of disputes arising under bilateral, regional, multilateral investment treaties and investment chapters in free trade agreements, focusing specifically on particularities this field of international law displays in comparison to general international law. It first addresses the importance of bilateral treaties in international investment law and shows that their bilateral form is not opposed to the emergence of a genuinely multilateral regime that behaves as if it was based on multilateral sources. The chapter then considers the pre-eminent importance arbitral decisions assume in determining and developing the content of rights and obligations in the field. Next, the chapter looks at the increasing influence of comparative law and the influence of soft law instruments. It argues that the specific sources mix in international investment law is chiefly connected to the existence of compulsory dispute settlement through investment treaty arbitration and the sociological composition of those active in the field.
Jorge E. Viñuales
This chapter addresses the challenges posed by the practice of international investment law to the conventional theory of the sources of international law. After a brief overview of the main ‘sources’ of ‘international investment law’, the chapter examines three challenges to this basic understanding, which arise from the need to account for the domestic laws governing different aspects of foreign investment transactions, the detailed jurisprudential norms generated by investment tribunals to specify broadly formulated norms, and the norms of general international law expressing the sovereignty of the State. For each category of norms, the chapter selects several problems that put the most widely accepted understanding of the sources of international law to test. It then explains why the problems examined have potentially important practical implications. The chapter concludes with some observations on the interactions between practice and the theory of the sources of international law.
This chapter argues that the World Trade Organization (WTO) approach to sources of law is legal-positivist, non-teleological, and focused predominantly on the text of WTO covered agreements as explicitly agreed to by WTO members. This approach places heavy reliance on a de facto rule of precedent and an increasing role for non-binding instruments, with little or no reference to academic writings and a limited role for non-WTO rules of international law other than mainly procedural rules of general international law. Moreover, the WTO’s sources doctrine remains relatively traditional or mainstream. It is difficult to speak of a WTO- or trade-specific ‘deviation’ from the general rule of recognition regarding the establishment of sources. At the same time, the WTO experience does have specific features, with a more prominent role for some sources over others and some pushing of the boundaries when it comes to certain less traditional sources of international law.
Sources of International Trade Law: Understanding What the Vienna Convention Says About Identifying and Using ‘Sources For Treaty Interpretation’
Donald H. Regan
International trade law is overwhelmingly treaty-based. For practical purposes, the unique traditional ‘source’ of WTO law is the WTO treaty. But treaties require interpretation, and there are many controversial questions about what might be called the ‘sources for treaty interpretation’. What materials can be used to interpret a treaty, and how are they to be used? The standard source for answering these questions, especially in the WTO, is the Vienna Convention on the Law of Treaties (VCLT). This chapter discusses a fundamental, and largely overlooked, question about the structure of the VCLT—the rationale of the distinction between Articles 31 and 32 of the VCLT. The answer is central to understanding the individual provisions of these Articles.
With regards to global trade, where new technologies impact both on what is traded and how, this chapter sketches the current regulatory landscape and projects the implications of emerging technologies for future regulatory approaches. While the regulation of technology mainly rests with domestic law, it is international trade law that addresses problems of regulatory diversity, overcomes unnecessary barriers to international trade and investment, and articulates common standards. Apart from general principles of non-discrimination and transparency, technology is particularly addressed by rules of intellectual property protection and by technical regulations and standards for industrial and nutritional products. For international trade law to respond to the challenges of legitimacy and democratic accountability, there need to be new approaches to regulatory cooperation and coherence, operating within a proper framework of multi-level governance that harnesses the process of globalization which is much driven by technological advances.
Transnational Commercial Surrogacy: Contracts, Conflicts, and the Prospects of International Legal Regulation
Cyra Akila Choudhury
With the emergence of assisted reproductive technologies, particularly in vitro fertilization, gestational surrogacy in which an woman can be hired to gestate the child of commissioning parents has grown into a multimillion dollar industry. While many countries prohibit surrogacy, others permit and some even allow women to charge for the service of gestation on a commercial basis. This article addresses the regulation of transnational surrogacy and the related legal conflicts that arise in cross-border agreements particularly in commercial contracts It starts with a brief exploration of the surrogacy industry and growth. It then goes on to describe and analyze some of the legal frameworks that affect surrogacy contracts. The article proceeds to discuss some of the most prominent cross-border controversies to highlight that these conflicts tend to arise from a lack of international or transnational regulation on parentage and citizenship. Finally, the article explores the proposals for international regulation and the prospects of solving some of the more difficult legal problems that have arisen from transnational surrogacy.