From the late 1960s onwards, provision was made in investment treaties for foreign investors to take claims directly against States hosting their investments. Once this legal development was coupled with the conclusions of the New York Convention and ICSID Convention, which established systems for easy enforcement of arbitral awards, it looked like there was an almost self-contained system for resolving investor-State disputes. These disputes went to arbitration and ordinarily finished there. In the rare case where the State refused to pay on the arbitral award, courts could become involved via an enforcement action.
Most particularly over the past five years, this situation has changed. Domestic courts are finding different ways to become involved in investor-State disputes. They are now willing to test whether investment treaties that their governments have signed are constitutionally compatible. They are adjudicating on investor-State disputes. They are finding different ways to help or inhibit investment-treaty arbitrations. And, finally, they are more frequently hearing challenges to investment-treaty arbitral awards.
How are these developments changing international investment law? This is the core research question of this research project. The thesis is that by increasingly becoming involved, domestic courts are transforming from their roles in international investment law from objects to actors. If accepted, this thesis overturns the idea that investor-State dispute settlement is an almost self-contained system of dispute resolution.
Two workshops have been held as part of this research project. One took place in October 2022 at the University of Sydney, Australia, while the other took place in July 2023 at MPIL. The various participants in this research project presented their first and second draft papers at these workshops, respectively. These papers will be published in an anthology. An application to publish this anthology is currently under review with Oxford University Press. This anthology will comprise eleven chapters, including an introductory chapter.
