Annual Survey of International & Comparative Law


This paper is divided into seven parts. Part 1 traces the history of foreign investment treaties and provides the factors that led to the emergence of the current investment regime. Part 2 discusses the significance of treaties in the vexed question of whether or not there is a hierarchy of international law sources. Part 3 examines treaty-making in the current international investment regime – visiting the argument about whether or not the provisions of investment treaties have ripened into customary international law, highlighting the dominance of bilateral investment treaties over multilateral investment treaties, offering explanation for the near absence of multilateral investment treaties in the current investment treaty regime, and noting the legitimacy problem that arises from inconsistent decisions of arbitral tribunals. The general bindingness of treaties under international law is explored in Part 4, while Part 5 considers the exceptions to the rule that treaties are binding on the parties. Part 6 focuses on the benefits and criticisms of Investment Treaties. This paper concludes that international investment treaties have brought some much-needed certainty to the terms regulating the investment relations between the foreign investor and the host State.

Cite as: 19 Annl. Survey Int'l. Comp. L. 155 (2013).