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Investment agreement claims under the 2004 model U.S Bit



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INVESTMENT AGREEMENT CLAIMS UNDER THE 2004 MODEL U S BIT A CHALLENGE FOR STATE POLICE POWERS LAURA HENRY ABSTRACT Countering current practice in investment treaty arbitration the 2004 U S Model Bilateral Investment Treaty BIT authorizes investors to raise a claim in investment treaty arbitration using direct recourse arbitration for a breach of a category of contracts called investment agreements corresponding to natural resource and public service concessions and infrastructure projects I analyze the consent clause for investment agreement claim arbitration in the context of the evolution of dispute resolution of transnational contracts between States and investors with particular emphasis on the recent controversy in investment treaty arbitration over contract claims and discuss some of the implications for States which commit to the investment agreement provisions of the consent clause A wide range of government administrative actions affecting foreign investment including nondiscriminatory regulations for public welfare purposes could become forms of compensable liability that are currently not considered to be international wrongdoing under customary international law or in contemporary BIT practice under the investment agreement arbitration consent clause Given the theoretical problems with the judicial administration of contract claims in treaty arbitration and the potential conflict with States rights to regulate particularly in the field of environmental law I advocate a narrow construction of the investment agreement provisions to reconcile them with customary international law and investment arbitration practice Lecturer Graduate School of Law Yonsei University Seoul 935 936 U Pa J Int l L 1 Vol 31 3 INTRODUCTION The question of whether an investor may litigate breaches of concession contracts through investment treaty arbitration has generated heated controversy1 in treaty arbitration in recent years echoing a dispute between developed and developing



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