Analogies and Other Regimes of International Law

Abstract

This chapter presents international investment law as a complex regime that borrows from three other regimes on international law: the law of human rights, the law of treaties regarding third parties, and diplomatic protection. These three regimes, in turn, encapsulate three legal techniques that can be drawn upon by arbitrators in their interpretation of different aspects of the investment law regime: the models of direct rights, beneficiary rights, and agency. In developing international investment law, arbitrators must rely on analogical reasoning. The challenge is in identifying one of the three regimes as the appropriate source of analogy, and as the repository of the appropriate legal technique to facilitate the interpretation of investment treaty texts. The chapter demonstrates that the solutions to problems relating to the interpretative methodology for investment treaties; the impact of joint action by the contracting states parties upon the rights of investors under the treaty; and the content of the applicable law of state responsibility may differ fundamentally depending on the analogy selected by arbitrators.