Table Of ContentInternational Investment Law and History
FRANKFURT INVESTMENTAND ECONOMIC LAW SERIES
SeriesEditors:RainerHofmann,UniversityofFrankfurt,Germany,StephanW.
Schill,UniversityofAmsterdam,theNetherlandsandChristianJ.Tams,
UniversityofGlasgow,UK
TheFrankfurtInvestmentandEconomicLawSeriesaddressesacorefieldof
internationallawwhoseimportanceislikelytoincreasefurtherasglobalization
progresses:internationaleconomiclaw.Servingasaforumfordialogueand
cutting-edgedebate,itsscopetakesinthelegalregimegoverninginternational
economicrelationsatlargewithaparticularfocusoninternationalinvestment
law.
Seekingtolookbeyondpracticalconcernsraisedinthisfield,theseries
addressesconceptualandfoundationalissuesrelatingtothetheoryof
internationalinvestmentlaw–includingquestionsoflegitimacyandpolicy,the
interactionwithotherfieldsofinternationalanddomesticlaw(bothpublicand
private),andinterdisciplinaryapproachestoinvestmentlawandpolicy. Its
intellectualfoundationslinktotheworkshopsheldinFrankfurtinconnection
withtheannualFrankfurtInvestmentArbitrationMootCourt.
Titlesintheseriesinclude:
InternationalInvestmentLawandDevelopment
BridgingtheGap
EditedbyStephanW.Schill,ChristianJ.TamsandRainerHofmann
InternationalInvestmentLawandtheGlobalFinancialArchitecture
EditedbyChristianJ.Tams,StephanW.SchillandRainerHofmann
InternationalInvestmentLawandHistory
EditedbyStephanW.Schill,ChristianJ.TamsandRainerHofmann
International
Investment Law and
History
Edited by
Stephan W. Schill
Professor of International and Economic Law and Governance,
University of Amsterdam, the Netherlands
Christian J. Tams
Professor of International Law, University of Glasgow, UK
Rainer Hofmann
Professor of Public Law, Public International Law and European Law,
University of Frankfurt, Germany
FRANKFURT INVESTMENTAND ECONOMIC LAW SERIES
Cheltenham,UK+Northampton,MA,USA
©The editors and contributors severally 2018
Cover image: ‘The Olive Branch’(2017) by Heather L. Bray
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic,
mechanical or photocopying, recording, or otherwise without the prior
permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2017959428
This book is available electronically in the
Law subject collection
DOI 10.4337/9781786439963
ISBN 978 1 78643 995 6 (cased)
ISBN 978 1 78643 996 3 (eBook)
Typeset by Columns Design XML Ltd, Reading
Contents
List of contributors vii
Preface and acknowledgments x
PART I INTRODUCTION
1. International investment law and history:An introduction 3
StephanW. Schill, Christian J. Tams and Rainer Hofmann
PART II OBJECTSAND OBJECTIVES OF HISTORY
2. Narrating narratives of international investment law:
History and epistemic forces 41
Andreas Kulick
3. The first investor-state arbitration? The Suez Canal dispute
of 1864 and some reflections on the historiography of
international investment law 70
JasonWebbYackee
4. Understanding change: Evolution from international claims
commissions to investment treaty arbitration 102
Heather L. Bray
5. History and international law: Method and mechanism –
empire and ‘usual’rupture 136
Kate Miles
6. The challenges of history in international investment law:
A view from legal theory 164
Jörg Kammerhofer
PART III METHODOLOGYAND ITS CHALLENGES
7. Resolving challenges to historical research: Developing a
project to define fair and equitable treatment 179
Mona Pinchis-Paulsen
v
vi Internationalinvestmentlawandhistory
8. The evolution of contractual protection in international law:
Accessing diplomatic archives, discovering diplomatic practice,
and constructing diplomatic history 213
Jean Ho
9. The gust of wind: The unknown role of Sir Elihu Lauterpacht
in the drafting of theAbs-Shawcross Draft Convention 241
Yuliya Chernykh
10. Enriching law with political history:A case study on the
creation of the ICSID Convention 286
Taylor St. John
11. A genealogy of censurable conduct:Antecedents for an
international minimum standard of investor conduct 321
Muin Boase
Index 367
Contributors
Muin Boase is a Senior Teaching Fellow at the School of Oriental and
African Studies (SOAS) University of London, where he lectures in
Public International Law and International Human Rights Law. He holds
an LLM and a PhD from SOAS, a BSc from the London School of
Economics, and has been called to the Bar of England and Wales. He
worked for two years as a Research Assistant to Sir Bernard Rix of 20
Essex Street (2014–2016) and has carried out research on a number of
public international law cases.
Heather L. Bray is a PhD Researcher at the University of Amsterdam.
Her PhD research is part of the Lex Mercatoria Publica Project directed
by Professor Stephan Schill. She is a barrister and solicitor of the Law
Society of Upper Canada. She holds an LLM in Business Law and
Taxation from the University of Western Ontario, an LLB from the
University of New Brunswick, and a BA in Justice Studies from Royal
Roads University.
Yuliya Chernykh (LLM (Stockholm)) is a PhD candidate at the Univer-
sity of Oslo where she is working on contractual interpretation in
investment arbitration. Yuliya has extensive practical experience as an
arbitrator, expert and counsel in international arbitration proceedings
under a number of European and Asian arbitration rules. She is a
Chartered Arbitrator and a Fellow of the Chartered Institute of Arbitra-
tors.Yuliya is admitted to the Ukrainian bar.
Jean Ho is Assistant Professor of Law at the National University of
Singapore. A graduate of New York University, l’Université de Paris I
(Panthéon-Sorbonne), and Cambridge University, she convenes a course
on Arbitration of Investment Disputes and supervises undergraduate,
graduate, and doctoral research on diverse aspects of international
investment law. Prior to academia, she practised international investment
law at Shearman & Sterling LLP. Her principal research areas are the law
of state responsibility, the law of treaties, and state contracts. She is
fluent in French and Mandarin and divides her time between Singapore,
London, Paris, and Washington, DC.
vii
viii Internationalinvestmentlawandhistory
Rainer Hofmann is Professor of Public Law, International Law, and
European Law, and Co-Director of the Wilhelm Merton Centre for
European Integration and International Economic Order at the University
of Frankfurt/Main. He is Member of theAdvisory Board on International
Law of the German Ministry for Foreign Affairs and President of the
German Branch of the International Law Association (ILA). He sits on
theExecutiveandtheManagementBoardoftheEuropeanUnionAgency
for Fundamental Rights, representing the Council of Europe.
Jörg Kammerhofer (Mag. iur., Dr. iur. (Vienna), LLM (Cantab)) is a
Senior Research Fellow at the Faculty of Law, University of Freiburg,
Germany, and a Visiting Lecturer at the University of Economics and
Business,Vienna,Austria.Hehaswrittenwidelyoninternationallawand
legal theory and is Chair of the European Society of International Law
Interest Group on International Legal Theory and Philosophy.
Andreas Kulick (Dr. iur. (Tübingen), LLM (NYU)) is Senior Research
Fellow at the Eberhard Karls University Tübingen, Germany. His
research focuses on public international law and on German and com-
parative constitutional law and theory. He has advised and represented
states in various matters of public international law before international
courts and tribunals, including the European Court of Human Rights and
the International Tribunal for the Law of the Sea, and in ICSID
proceedings, as well as before domestic courts. He is a Member of the
ILA Study Group ‘Content and Evolution of the Rules of Interpretation
in International Law’.
KateMilesisaFellowandLecturerinInternationalLawatGonvilleand
Caius College, Cambridge. She is the author of a monograph, The
Origins of International Investment Law: Empire, Environment and the
Safeguarding of Capital (Cambridge University Press 2013).
Mona Pinchis-Paulsen is a Senior Fellow for the California Inter-
national Law Center and a Visiting Lecturer at the UC Davis School of
Law for the 2017/2018 academic year. She is a Canadian lawyer
(qualified in 2007) and holds a PhD in International Economic Law from
The Dickson Poon School of Law, King’s College London, and an LLM
in International Law from The George Washington University Law
School. Her research focuses on international arbitration, international
trade, and international investment law. She isAssistant to the Editor-in-
Chief of the Journal of International Dispute Settlement.
Contributors ix
Stephan W. Schill (Dr. iur. (Frankfurt), LLM (NYU), LLM (Augsburg))
is Professor of International and Economic Law and Governance at the
University of Amsterdam, and Principal Investigator of the ERC-project
on ‘Transnational Private–Public Arbitration as Global Regulatory Gov-
ernance’. He is admitted to the Bar in Germany and NewYork and is a
Member of the ICSID List of Conciliators. He serves as Editor-in-Chief
of The Journal of World Investment & Trade.
Taylor St. John is a Postdoctoral Research Fellow at the PluriCourts
Center of Excellence, University of Oslo, and a Senior ResearchAssoci-
ate at the Global Economic Governance Programme, University of
Oxford. She holds an MSc and DPhil from the University of Oxford. Her
book, The Rise of Investor-State Arbitration: Law, Politics, and Un-
expected Consequences, will be published with Oxford University Press
in 2018.
Christian J. Tams is Professor of International Law at the University of
Glasgow, where he directs the Law School’s LLM in international law.
He is a German lawyer (qualified in 2005) and holds an LLM and a PhD
from the University of Cambridge. He is an academic member of Matrix
Chambers, and over the past decade has acted in cases before the
International Court of Justice, the International Tribunal for the Law of
the Sea, the Iran-United States Claims Tribunal, and arbitral tribunals.
JasonWebbYackee is Professor of Law at the University ofWisconsin-
Madison (USA). He received his law degree from Duke University and
his PhD in political science from the University of North Carolina at
Chapel Hill. He has published a number of articles examining the
relationship between investment flows and international investment law.
His current research project is a historical examination of the protection
of French investors in post-colonial Africa.
Preface and acknowledgments
Historical arguments in international investment law are omnipresent.
They play an important role in the current discourse, whether in
interpreting investment treaties in a concrete dispute, in justifying or
criticizing the current system of international investment protection and
investment dispute settlement, or in debating its reform. Yet, for a long
time, the discipline has had a largely instrumental relationship to its
history. It has also shied away from addressing the many difficult
challenges serious and methodologically reflective uses of history and
historical research entail.
More recently, however, scholarship in international investment law is
starting to take a ‘turn to history’. This is illustrated by a number of
book-length studies adopting a pronouncedly historical focus, dealing
inter alia with specific standards of treatment, the content of customary
international law, or the history of institutions, such as the International
Centre for Settlement of Investment Disputes. At the same time, inter-
national investment law as a discipline is still short of reflections on the
foundations for sound historical research, including theoretical questions
about the reasons for, and methodological approaches to, history in the
field.
The present book brings together scholars for a reflection on some of
the foundational questions relating to engaging in historical research and
analysis in international investment law. It does not present to the reader
‘the’ history or even ‘a’ (more or less comprehensive) history of
international investment law. Instead it invites readers to think about the
conditions, methodological possibilities, benefits, and challenges of
engaging in historical research and historical argument in the field.
Consolidating the historiographical turn in the field, the book aims at
stimulating further historical research in international investment law and
perhaps even raising increased interest of international legal histori-
ography in international economic law and international law’s economic
foundations.
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