Can a State mistreat foreign investors in retaliation for conduct of their State of nationality, yet without breaching its investment protection treaty obligations? Conversely, can States of nationality of investors bring claims regarding the mistreatment of their investors, even in the presence of investor-State arbitration clauses? Can investors waive the substantive and procedural protection provided in investment protection treaties? And can an interpreter of an investment treaty draw upon general international law of inter-State diplomatic protection, whether to fill the perceived gaps in the rules on nationality, or read in a futility exception in the requirement of local pre-arbitration litigation? All of those questions entirely depend upon, or at least can be significantly affected by, the manner in which the law of State responsibility fits within investment protection law. Paparinskis suggests that one can articulate this fit in three plausible ways — by reference to international law of human rights, law of treaties on third parties, and law of diplomatic protection — and explain the important implications flowing from these readings.
Martins Paparinskis, D. Phil. (Oxon), is a Lecturer in Law at University College London. He was previously a Junior Research Fellow at Merton College, University of Oxford and a Hauser Research Scholar at the New York University. He is a general international lawyer with a particular interest in international investment law and dispute settlement. His publications include a monograph, The International Minimum Standard and Fair and Equitable Treatment (Oxford University Press, 2013), a compilation of Basic Documents on International Investment Protection (Hart Publishing, 2012), and articles in such journals as the British Yearbook of International Law and the European Journal of International Law. He is the Book Review editor of the Journal of World Investment and Trade, a member of the International Law Association’s Study Group on the Use of Domestic Law Principles for the Development of International Law, and a member of the Panel of Arbitrators of the International Centre for Settlement of Investment Disputes.