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Illegal Investments in Investment Treaty Arbitration

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Abstract Investment treaty tribunals on numerous occasions have had to deal with the impact of breaches of domestic law by a foreign investor on the investment’s protection under an international investment treaty. In this context, tribunals had to interpret different “in accordance with host State law”-clauses contained in investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present article traces this increasingly complex jurisprudence and frames it as an issue of the relationship between domestic law and international investment law. Although different approaches exist, most importantly as to the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the article suggests that there is considerable potential for convergence in arbitral jurisprudence, thus unveiling the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.

Affiliations: 1: Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany


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