The publications listed here represent a small selection of the work of staff members of the GCILS. To see full listings of publications please click through to the University of Glasgow main webpages in each individual staff member profile.

Swords, Shields and Other Beasts: The Role of Countermeasures in Investment Arbitration

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"Our topic can be thought of as a meeting of the old and the new, and it can be approached via a straightforward question: is there room, in the contemporary world of investment arbitration, for countermeasures, that traditional means of self-help? Countermeasures—and more so the concept’s traditional label, reprisals—evoke an era of interstate international law of limited reach: an era which, for lack of adequate institutions, accommodated ideas of ‘private justice’ to a significant extent, notably by accepting the right of one State to respond to another State’s wrongful conduct by means of coercion. This right permitted the State to respond to wrongful conduct affecting State rights as well as rights of nationals, despite the obvious risk of abuse. As investment lawyers with a measure of historical awareness know full well, in the field of foreign investment, the risk of abuse regularly materialised, as ‘home States’ (in the contemporary parlance) reacted coercively against host States accused of having interfered with rights of foreign investors. (...)"

article in ICSID Review - Foreign Investment Law Journal, Volume 37, Issue 1-2, Winter/Spring 2022, Pages 121–137,

ISSN 0258-3690, EISSN 2049-1999

Eran Sthoeger

The world court’s influence on contemporary investment law

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"The World Court is not an investment court. Over the course of the last century, it has addressed inter-state disputes that reflect the breadth and diversity of international law, from armed activities in the Congo and Nicaragua to questions concerning the guardianship of infants. Only a fraction of its proceedings concern disputes about state interference with foreign investments. And yet, the decisions of the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ) feature prominently in investment jurisprudence: according to Fauchald’s empirical study, one in two awards refers to it in one way or another.[1] Alain Pellet agrees, noting that ICSID tribunals ‘systematically refer to the Court’s jurisprudence’ and ‘show a particular deference to it’.[2] Many of these references reflect the embeddedness of international investment law (IIL) and arbitration in general international law: PCIJ and ICJ statements on principles of interpretation are widely cited, as is their case law on procedural issues common to all dispute settlement regimes, on the legal effects of interim measures, or on meta-questions such as the requirements for the identification of customary international law...."

Tams, C. J. and Methymaki, E. (2022), In: Ruiz Fabri, H. and Stoppioni, E. (eds.) International Investment Law: An Analysis of the Major Decisions. Series: Studies in international trade and investment law (27). Edward Elgar: Oxford ; London ; New York ; New Delhi ; Sydney, pp. 37-58.

9781509929047

Eleni Methymaki

The role of precedent in the jurisprudence of the International Court of Justice: a constructive interpretation

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In cases that come before the International Court of Justice (‘the ICJ’, or ‘the Court’), its own jurisprudence looms large. This is despite the fact that no rule of stare decisis operates before the ICJ. The juxtaposition of the facts expressed in these two statements has generated significant doctrinal and theoretical debate. In this article I propose a novel theoretical framework for understanding the role that precedent has traditionally played in proceedings before the Court, and that which it should play in the future. This theoretical framework rests upon a constructive interpretation of the doctrine of stare decisis. I examine the historical institutional practice of the Court in order to determine the range of possible versions of the doctrine which, in Dworkin’s words, ‘fit’ this practice. Noting that there is more than one potential version of stare decisis which fits the Court’s practice, I next consider which is justified as the version which best reflects the value of this doctrine. Having shown that the value that stare decisis strives to achieve is contextual justice, I argue that only a weak version of horizontal stare decisis can justify this doctrine. My ultimate claim is that the Court’s principal concern when considering whether to follow or depart from its own jurisprudence should be that of achieving justice in the context of that particular case, and not merely ensuring consistency, predictability or efficiency.

International Investment Protection and Constitutional Law

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This book develops a conceptual framework that captures not only the tensions between constitutional values that are common to liberal democracies – human rights, democracy, and the rule of law – and the investment treaty regime, but also the potential for co-existence and complementarity. Contributions from leading experts in the field address how different systems of constitutional law interact with the investment treaty regime. Chapters provide a detailed overview of the various forms of interaction, and critically engage with the competing claims for supremacy that constitutional law and international investment law formulate. The book also addresses the reactions within the investment treaty regime to the demands formulated by constitutional law, in particular the use of constitutional analogies to understand international investment law and investor-state dispute settlement. Investigating the leading questions and issues surrounding this growing topic, this book will be an ideal read for students and scholars interested in financial, economic, and international law. Practitioners of constitutional law will also benefit from this innovative book.

Schill, S. W. and Tams, C. J. (Eds.) (2022) Frankfurt investment and economic law series. Edward Elgar Publishing.

9781839100413

Stephan W. Schill

The ILC Articles at 20

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“The Articles on the Responsibility of States for Internationally Wrongful Acts (Articles), developed by the International Law Commission (ILC), turn 20 this year. On 9 August 2001 – 45 years after the first report by Special Rapporteur Francisco García-Amador on the topic, after 5 Special Rapporteurs and 34 reports by them – the ILC adopted the final text of the Articles, thus bringing to an end work that (in the words of Rosalyn Higgins) were it not for the Commission’s broad understanding of responsibility, ‘should on the face of it [have] take[n] one summer’s work’.3 On 12 December 2001, the UN General Assembly ‘noted’ the Articles and commended them to the attention of Governments in December.4 Since then, reflected in successive reports compiled by the UN Secretary-General, the Articles have become the obvious reference point for debates about State responsibility: they are invoked, applied, cited, criticised, studied by nearly everyone working in or with international law, from undergraduate students to investment tribunals, and even domestic courts.5 They reflect international law’s everyday, routine, application: mostly unspectacular, sometimes pedestrian; dramatic only rarely. What is more, most readers, users, students, critics have been quick to adopt the ILC’s jargon and categories.”

GCILS Working Paper Series

Federica Paddeu

Expanding Human Rights Obligations to Facilitate Climate Justice? A Note on Shortcomings and Risks

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