Jarrod Hepburn is a Lecturer in Law at the University of Exeter, UK. There has been much discussion in recent years – and in recent weeks on this blog – of the potential for investment treaty arbitration to benefit from a ‘comparative public law’ approach. In brief, the approach conceives of investment treaty arbitration as a form of public law, and calls for tribunals to draw on comparative domestic constitutional and administrative law, as well as other regimes of international public law such as WTO law and human rights law, to give content to the often vaguely-worded standards of typical investment treaties. In the midst of contemporary enthusiasm for comparative public law, it is tempting to think that the approach is a new one that has been growing in prominence only over the last few years. However, this week brings news from Investment Arbitration Reporter that an UNCITRAL-rules investment treaty award dating from 1995, Saar Papier Vertriebs GmbH v Poland, has been unearthed. Amongst other…
Comparative Law
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The Public Law Approach in the Practice of Investment Treaty Arbitration
In my last post, I discussed how comparative public law methodology could inform the resolution of investor-State disputes and thus help to reform the system from within. This may sound like a view from the ivory tower. In this post I will first discuss why arbitrators have an incentive to make use of such a methodology…
Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis’ Rejoinder
In her rejoinder to my post, Jaye Ellis underscores that “comparative law could help international judges understand general principles as an opportunity to learn from municipal legal systems, rather…
Comparative Law and the Ad Hoc Tribunals: A Rejoinder to Aldo Zammit Borda
Jaye Ellis is Associate Professor and Associate Dean, Faculty of Law, McGill University, Canada. Her article General Principles and Comparative Law was published in (2011) 22 (4) EJIL 949-971 In his EJIL:Talk! post commenting on my recent EJIL article, Aldo Zammit Borda begins with reference to an approach to the…
Comparative Law and the Ad Hoc Tribunals: A Reply to Jaye Ellis
Aldo Zammit Borda is a PhD candidate at Trinity College, University of Dublin and a Fellow of the Honourable Society of the Middle Temple. Previously, he served as First Secretary, Ministry of Foreign Affairs of Malta, and as Legal Editor, Commonwealth Secretariat, London. 1. Introduction This post seeks to engage with…