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Reconfiguring Territoriality in International Economic Law

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Netherlands Yearbook of International Law 2016

Part of the book series: Netherlands Yearbook of International Law ((NYIL,volume 47))

Abstract

Recent scholarship in international law has studied the phenomenon of deterritorialization and, in this context, has framed territoriality and functionality as competing modes of organizing the global political order. In this chapter, we challenge this vision by exploring the hypothesis that territoriality and functionality, rather than mere substitutes or competitors, impart meaning to each other. To test this hypothesis, we identify different modes by which functionality and territoriality interact in the reconfiguration of the international legal space, and in particular in the trade and investment regimes. In the context of international trade law, we show how territoriality is multiplied, and how it gives meaning to functionality, in particular at the intersection of the trade regime and regimes for the protection of health and environment. We further develop the idea of the emergence of techno-territoriality, where norms allegedly promoting global technocracy are being shaped by territoriality. The analysis of the international investment regime engages with the threats that contractual clauses exert on territoriality in the context of investment operations, the significance of the territorial nexus requirement in the definition of investment, when intangible financial instruments are involved, as well as the ‘international-territoriality’ mode conveyed by the activities of sovereign investors abroad. We conclude by arguing that territoriality is not subsumed by functionality, but is rather undergoing a process of transformation into ‘non-modern’ territoriality: the reassertion of territoriality in investment and trade regimes, albeit in different forms, should be looked at as a positive development to keep alive the ‘public’ core of international law.

The authors wish to thank Pedro Alejandro Villarreal Lizárraga, Marjolein Schaap and two anonymous referees for their insightful comments. The usual disclaimer applies. This chapter is the result of the joint work of the authors and reflects their shared views. For the purposes of evaluation of our work by Italian academic institutions, we declare that Sects. 8.1, 8.2 and 8.5 were jointly drafted, Sect. 8.3 was drafted by Alessandra Arcuri and Sect. 8.4 was drafted by Federica Violi.

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Notes

  1. 1.

    Di Martino 2010, at 270. The observation can be traced back to the work of Carl Schmitt on the relation between Ordnung and Ortung, Schmitt 1950.

  2. 2.

    Ruggie 1993, at 165; Paulus 2004, at 59; Fischer-Lescano and Teubner 2004, at 1008–1009 et seq; Luhmann 1982 at 235, Kahn 2012, at 225.

  3. 3.

    Di Martino 2010, at 285; Krasner 1982, at 497.

  4. 4.

    On the impact of fragmentation on legal pluralism, see Teubner and Korth 2010, at 23.

  5. 5.

    This definition draws on Brölmann 2007, at 86.

  6. 6.

    Paulus 2004.

  7. 7.

    On the predominance of a fragmented functional logic governed by technocrats over the pursuit of integrated public policy, see Mégret 2012, at 86.

  8. 8.

    Buxbaum 2009, at 635.

  9. 9.

    The conceptualization of territorial sovereignty as ‘functional sovereignty’ understands territory neither as an object, nor as an element of the State, but rather ‘as one of the (spatial) ambits in which sovereignty displays its functions and it is hence protected by international law. This presupposes the attribution of a normative meaning to territory , which is inseparable from the effective exercise of sovereign powers (and clearly, obligations, i.e. functions) of States over that particular spatial sphere. See on this Milano 2015, at 63, referring to Quadri’s seminal work: Quadri 1968, at 633.

  10. 10.

    See the distinction between territory and territoriality, as elaborated by Sassen 2013.

  11. 11.

    Ruggie 1993, at 149.

  12. 12.

    Sassen 2006, at 32–33.

  13. 13.

    Ibid., at 151.

  14. 14.

    Brölmann 2007, at 85.

  15. 15.

    For a comprehensive analysis see Anghie 1999. In her analysis, Sassen well illustrates how the emergence of territorial authority was bound up with imperial geography, see Sassen 2006, at 74–96.

  16. 16.

    Weathon, quoted in Anghie 1999, at 21.

  17. 17.

    Anghie 1999, at 33. The East Indian Company was abolished in 1857, see Sassen 2006, at 94.

  18. 18.

    The quote is borrowed from Latour 1993.

  19. 19.

    Ruggie 1993, at 165.

  20. 20.

    Fischer-Lescano and Teubner 2004; Paulus 2004; Brölmann 2007; Ryngaert 2014. For a critique of the ways in which the modern territorial state, as an analytical construct, has constrained the conventional thinking in international relations theory, see Agnew 1994; the author refers to this problem as to a ‘territorial trap’.

  21. 21.

    As put by Fischer-Lescano and Teubner 2004, ‘[t]he traditional differentiation in line with the political principle of territoriality into relatively autonomous national legal orders is thus overlain by a sectoral differentiation principle: the differentiation of global law into transnational legal regimes, which define the external reach of their jurisdiction along issue-specific rather than territorial lines, and which claim a global validity for themselves’; Fischer-Lescano and Teubner 2004, at 1009. The authors draw on the seminal work by Luhmann 1995.

  22. 22.

    Brölmann 2007, at 87 (emphasis added).

  23. 23.

    Sassen 2006.

  24. 24.

    Kamminga 2013, at 2.

  25. 25.

    See on this Tancredi 2015, at 49, referring to the seminal work of Schmitt 1950.

  26. 26.

    Ibid., 2015, at 52 (emphasis added).

  27. 27.

    Bassiouni 2012, at 1.

  28. 28.

    Milano 2015, at 69, the author clarifies that the relation between Ordnung and Ortung as instrumental rather than dissociative.

  29. 29.

    Dupuy 2002, at 102.

  30. 30.

    On this extensively Pikalo 2007, at 17; Wolf 2001, at 178; Weiss 2000, at 1.

  31. 31.

    See the most recent issue (2016) of Law and Contemporary Problems dedicated to Subsidiarity in Global Governance. For an earlier analysis see Howse and Nicolaïdis 2003.

  32. 32.

    1947 General Agreement on Tariffs and Trade, 55 UNTS 187 (GATT).

  33. 33.

    The literature on sovereignty and international economic law is burgeoning. Jackson 1997, 2003 and 2006; Petersmann 2008; Raustiala 2003. The latter argues that sovereignty ought to be conceptualized as the capacity to revoke the delegation of powers and the availability of exit and that eventually international economic institutions are sovereignty -enhancing. Notably, Raustiala argues that ‘embedded liberalism’ is a key factor in strengthening sovereignty with the WTO law system. The loss of sovereignty has been often used as an argument to oppose the WTO project. Cf. Shaefer 2002, at 342–343.

  34. 34.

    The term legal spatiality has been used by Raustiala to refer to the ‘supposition that law and legal remedies are connected to, or limited by, territorial location.’ Raustiala 2005, at 2503.

  35. 35.

    This point resonates with Gregory Shaffer’s analysis and critique of post-nationalism as an insufficiently accurate descriptor of the contemporary legal order. Shaffer argues: ‘The legal ordering that we see is transnational because it implicates multiple states and constituencies within them, but it is not post-national in that states remain central to the creation, implementation, and contestation of transnational legal ordering.’ Shaffer 2012, at 579 (emphasis added).

  36. 36.

    Cf. Article XXXIII GATT 1947; and Article XII of the 1994 Marrakesh Agreement Establishing the World Trade Organization, 1867 UNTS 14 (WTO Agreement; or Marrakesh Agreement).

  37. 37.

    We use the nomenclature ‘Taiwan’, even though it is politically controversial, as discussed in Charnovitz 2006, at 403. As noted by this author, in the WTO Taiwan is named inconsistently, since in the Accession Documents it is called Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and abbreviated as Chinese Taipei and, at the same time, on the website it is listed under the letter ‘T’.

  38. 38.

    Cf. WTO, Report of The Working Party on the Accession of The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, WT/MIN(01)/4, 11 November 2001. Note that Chinese Taipei started its accession process under Article XXXIII GATT 1947 and, when the WTO was established the accession process was under Article XII of Marrakech Agreement . For an analysis of the implications of the accession by Chinese Taipei, see Charnovitz 2006.

  39. 39.

    Note that the customs territories of Hong Kong and Macau were GATT contracting parties from 1986 and 1991 respectively.

  40. 40.

    For a detailed description of the history the European Community in GATT, see Antoniadis 2004. Interestingly GATT preceded the European Economic Community; in this respect Antoniadis notes that the original legal architecture of the EEC has been shaped by Article XXIV GATT 1947.

  41. 41.

    The WTO website names the European Union as a WTO Member, see https://www.wto.org/english/thewto_e/countries_e/european_communities_e.htm, accessed 27 July 2016. As of 1 December 2009, the European Union has replaced the European Community; see van den Bossche and Zdouc 2013 at 106–107, in particular note 167, where the authors explain how, on 29 November 2009, the Council of the European Union and the Commission sent a Verbal Note to the WTO stating that the European Union ‘replaces and succeeds the European Community’ (WTO, Verbal Note from the Council of the European Union and the Commission of the European Communities, WT/L/779, 30 November 2009).

  42. 42.

    See Antoniadis 2004. While this tends to be the norm, there are cases in which the EU and certain Member States act together as respondents (e.g. WTO Appellate Body Report, European Communities and Certain Member States—Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, 18 May 2011) or cases where a WTO dispute has been brought by a Member State against the EU (e.g. WTO, European Union—Measures on Atlanto-Scandian Herring, Request for consultations by Denmark in respect of the Faroe Islands, WT/DS469/1, 7 November 2013).

  43. 43.

    EC—Customs Classification, Appellate Body Report, at para 96, as quoted in Antoniadis 2004.

  44. 44.

    1994 General Agreement on Trade in Services, 1869 UNTS 183 (GATS).

  45. 45.

    Cf. Article XXIV:5 and XXIV:8 GATT 1994. For a detailed analysis of these conditions, see Lockhart and Mitchell 2005.

  46. 46.

    Data taken from the Summarizing Table prepared by the WTO, http://rtais.wto.org/UI/publicsummarytable.aspx, accessed 27 July 2016.

  47. 47.

    1992 North American Free Trade Agreement, 32 I.L.M. 289 (NAFTA).

  48. 48.

    1991 Treaty for the establishment of a Common Market (Asunción Treaty) between the Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, 2140 UNTS 257 (MERCOSUR).

  49. 49.

    2007 Charter of the Association of Southeast Asian Nations, 2624 UNTS 223 (ASEAN).

  50. 50.

    European Commission, Proposal for a Council Decision on the conclusion of the Comprehensive Economic and Trade Agreement between Canada of the one part, and the European Union and its Member States, of the other part, COM(2016) 443 final, 5 July 2016 (CETA).

  51. 51.

    Lockhart and Mitchell 2005. According to Fabbricotti 2008, the fact that Article XXIV GATT 1994 has been largely inoperative, could be read as the emergence of a ‘customary ‘regional exception’.

  52. 52.

    See World Trade Organization, Synopsis of ‘Systemic’ Issues Related to Regional Trade Agreements, WT/REG/W/37, 2 March 2000; World Trade Organization, Compendium of Issues Related to Regional Trade Agreements, WTO Doc TN/RL/W/8/Rev.1, 1 August 2002.

  53. 53.

    Few cases have dealt with the exceptions in Article XXIV GATT 1994; WTO Appellate Body Report, Turkey—Restrictions on Imports of Textile and Clothing Products, WT/DS34/AB/R, 22 October 1999.

  54. 54.

    This argument echoes John Jackson’s idea that sovereignty mainly refers to ‘questions about the allocation of power’. Jackson 2003, at 790.

  55. 55.

    Mercurio 2006.

  56. 56.

    Fisher-Lescano and Teubner 2004.

  57. 57.

    Ibid., at 1028.

  58. 58.

    WTO Dispute Settlement Body, Brazil—Measures Affecting Patent Protection, Request for the Establishment of a Panel by the United States, WT/DS199/3, 9 January 2001.

  59. 59.

    WTO Dispute Settlement Body, Brazil—Measures Affecting Patent Protection, Notification of Mutually Agreed Solution, WT/DS199/4, 19 July 2001. The gist of the proposed solution is that Brazil should ‘hold prior talks with the United States with sufficient advance notice to permit constructive discussions in the context of a special session of the US—Brazil Consultative Mechanism, should Brazil deem it necessary to apply Article 68 to grant a compulsory license on patents held by U.S. companies.’

  60. 60.

    Fischer-Lescano and Teubner 2004, at 1024–1032.

  61. 61.

    WTO Agreement, Annex 1 C—Agreement on Trade-Related Aspects of Intellectual Property Rights, as amended on 23 January 2017 (TRIPS Agreement) (Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations).

  62. 62.

    See Decision of the General Council: WTO General Council, Amendment of the TRIPS Agreement, WT/L/641, 6 December 2005, http://www.wto.org/english/tratop_E/trips_e/wtl641_e.htm, accessed 20 January 2017.

  63. 63.

    WTO, Declaration on the TRIPS agreement and public health, DOHA WTO Ministerial 2001, WT/MIN(01)/DEC/2, 14 November 2001 (Doha Declaration).

  64. 64.

    Fisher-Lescano and Teubner 2004, at 1030.

  65. 65.

    India was granted a transitional period until 2005 in order to comply with the TRIPS Agreement. For a detailed analysis of this case, see Arcuri and Castro 2008.

  66. 66.

    For a detailed analysis of this case, see Arcuri and Castro 2008. The major concern was that Section 3(d) of the Patents Act that did set very stringent rules for the granting of patents for medicines. Section 3(d) identifies not patentable inventions, listing among them: ‘the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance […]’ On the basis of this provision, in 2005, Gleevec (imatinib mesylate), a drug widely patented Novartis throughout the world, was denied patent protection by the Chennai patent office. The fact that Gleevec has been patented virtually everywhere but in India, bear witness to the unique features of the Indian Patent Act.

  67. 67.

    Arcuri and Castro 2008 have argued that the rule should be interpreted in the sense of allowing heterogeneous patent systems, at 7–12.

  68. 68.

    Abbott 2002, at 486–487.

  69. 69.

    Cf. Doha Declaration, para 2.

  70. 70.

    Paragraph 4(c) of the Doha Declaration provides that: ‘Each member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency.’ This is not to say that the issue is uncontroversial and settled globally. There is an ongoing debate about to what extent a country can declare an emergency in order to justify its use. For example, there has been a controversy between the Colombian Minister of Health Gaviria and Novartis precisely on this point. In February 2016, a Colombian government committee proposed to issue a compulsory license for cancer-treating drug Gleevec. Novartis considered that there was no national emergency, whereas the Minister of Health did. We are thankful to Pedro Alejandro Villarreal Lizárraga for this observation.

  71. 71.

    Clearly, the acknowledgement of these interests by a global organization, such as the WHO or the UN, contributes to the identification of what a legitimate interest is.

  72. 72.

    Howse 2002, at 500 (emphasis added).

  73. 73.

    GATT Dispute Panel, United States—Restrictions on Import of Tuna (Report of the Panel), DS/29/R, 16 June 1994 (Tuna—Dolphin I), para 3.31 (emphasis added).

  74. 74.

    Ibid., para 3.32.

  75. 75.

    Buxbaum 2009, at 635.

  76. 76.

    The Appellate Body Report reads: ‘It appears to us, however, that conditioning access to a Member's domestic market on whether exporting Members comply with, or adopt, a policy or policies unilaterally prescribed by the importing Member may, to some degree, be a common aspect of measures falling within the scope of one or another of the exceptions (a) to (j) of Article X8.’ WTO Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 14 December 1998 (Shrimp—Turtle), para 121.

  77. 77.

    Ibid., para 133.

  78. 78.

    Ibid., paras 166 et seq.

  79. 79.

    Ibid., paras 177–182. This line of reasoning has been followed by the Appellate Body in subsequent case law; most recently Cf. WTO Appellate Body Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products (EC—Seal Products), WT/DS400/AB/R and WT/DS401/AB/R, 22 May 2014.

  80. 80.

    WTO Agreement, Annex 1A—Multilateral Agreement on Trade in Goods, Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) (Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations). Other important examples are the WTO Agreement, Annex 1 A—Multilateral Agreement on Trade in Goods, Technical Barrier to Trade (TBT Agreement) and the TRIPS Agreement.

  81. 81.

    Gruszczynski 2010; Winickoff and Bushey 2010; Arcuri 2015.

  82. 82.

    Demortain 2008, 2011.

  83. 83.

    Buthe 2008.

  84. 84.

    Winickoff and Bushey 2010.

  85. 85.

    For an early analysis of the problematique of the technocratic dimensions of the SPS Agreement, see Howse 1998.

  86. 86.

    Sassen 2006, at 266.

  87. 87.

    Demortain 2011.

  88. 88.

    For a discussion of alternatives see, for instance, Heyvaert 2011.

  89. 89.

    Arcuri 2011 argued that the adjudicatory bodies of the WTO are juggling between different logics when interpreting the SPS Agreement.

  90. 90.

    WTO Appellate Body Report, European Communities—Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, 16 January 1998 (EC—Hormones), para 187.

  91. 91.

    WTO Appellate Body Report, United States—Continued Suspension of Obligations in the EC—Hormones Dispute, WT/DS320/AB/R, 16 October 2008 (US- Continued Suspension), para 534.

  92. 92.

    The argument that the Appellate Body in EC—Hormones also recognized that ‘borrowed’ risk assessments (i.e. conducted by a different country or international organization) may validly be used to justify an SPS measure does not detract from our argument. The point is that a WTO Member may well consider a certain risk assessment conducted by the scientific body of an international organization as adequate; yet, it does not have to do so. A Member retains the discretion to conduct a risk assessment, and there is no transnational norm of scientific unity, which could be seen as a mechanism of deterritorialization.

  93. 93.

    Ortino and Ortino 2008, at 89.

  94. 94.

    Another interesting aspect is raised by Vadi 2016, at 108, on the functional comparative approach which, mainly driven by the idea of international constitutionalism , seeks transmigration of other legal systems into concept of international investment law, regardless of the risk of depriving law of its systemic meaning and the policy choices at its basis.

  95. 95.

    Many identify ‘authority’ in the idea of international legal personality of non-state actors, see on this Kulick 2012, at 64.

  96. 96.

    Umbrella clauses within BIT also greatly contribute to the phenomenon of internationalization. However, our analysis is only related to contractual clauses. More in general on the processes by which sovereignty becomes subject to private law, see extensively Muir Watt 2011.

  97. 97.

    Shan 2010, at 448.

  98. 98.

    See Sornarajah 2000, at 86.

  99. 99.

    On the origin of the phenomenon, see among others Sornarajah 2010, at 223 and 281. In the international case law see the Case Concerning the Payment of Various Serbian Loans issued in France (The Government of the French Republic v The Government of the Kingdom of the Serbs, Croats and Slovenes), PCIJ, Judgment, 12 July 1929, where the PCIJ underlines that ‘[t]out contrat qui n’est pas un contrat entre des États en tant que sujets du droit international a son fondement dans une loi nationale’. The arbitration practice which is usually considered to have given birth to the theory of internationalization can be traced back to three cases related to the exploitation of oil resources, Saudi Arabia v Arabian American Oil Company (Aramco), Arbitration Award, 27 ILR 117, 23 August 1958; Petroleum Development Ltd v Sheikh of Abu Dhabi, Arbitral Award, 18 ILR 144, September 1951; and Ruler of Qatar v International Maritime Oil Company, Ltd., Arbitral Award, 20 ILR 534, June 1953.

  100. 100.

    The first set of theories is based on the assumption that State contracts can be considered similar to treaties by virtue of their almost international nature which would require the estrangement of the contractual relationship from a specific domestic regulatory system and the applicability, proprio vigore, of international law, see Böckstiegel 1974, at 159; Verdross 1964, at 230. See Voss 2010 for an in-depth analysis of direct and indirect internationalization theories. On the almost international nature of the State contracts, see among others Texaco Overseas Petroleum Company And California Asiatic Oil Company v The Government of the Libyan Arab Republic, Arbitral Award, 53 ILR 389, 19 January 1977; In the Matter of Revere Copper and Brass, Inc. v Overseas Private Investment Corporation, Arbitral Award, 56 ILR 258, 24 August 1878; and Sapphire International Petroleum Ltd v National Iranian Oil Company, Arbitral Award, 35 ILR 136, 15 March 1963.

  101. 101.

    1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 575 UNTS 159 (ICSID Convention), Article 42(1).

  102. 102.

    On the identification, rationale and definition of lex mercatoria see, extensively, Boschiero 2005, at 83; Schill 2012. Similarly, some authors believe the general principles of law to be applicable to these transactions. See Mann 1959, at 34; Lalive 1965 at 987.

  103. 103.

    See Crespi Reghizzi 2009, at 31.

  104. 104.

    UNGA, Arbitration Rules of the United Nations Commission on International Trade Law, UN Doc A/31/98, 15 December 1976 (UNCITRAL Arbitration Rules), Article 33.1; International Chamber of Commerce (ICC), Rules of Arbitration of the International Chamber of Commerce, https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/, accessed 28 February 2017, Article 17.1; ICSID Convention, Article 42.

  105. 105.

    Several developing countries’ private international law systems exclude the principle of party autonomy for those contracts regulating the exploitation of natural resources.

  106. 106.

    Farmlandgrab.org, Contrat D’Exclusivité pour l’Utilisation de Terre entre AgroAfrica (Norvège) et Koukane, Sénégal, 7 Mars 2008, http://www.farmlandgrab.org/post/view/14253-contrat-d-exclusivite-pour-i-utilisation-de-terre-entre-agroafrica-norvege-et-kounkane-senegal, accessed 30 July 2016.

  107. 107.

    See also Autopista Concesionada de Venezuela, C.A. v Bolivarian Republic of Venezuela, ICSID, Arbitral Award, Case No. ARB/00/5, 23 September 2003, where the arbitral tribunal held that the reference to mere specific instruments of the domestic law do not necessarily amount to a general choice of that law. Other ʽrules of lawʼ become equally applicable to questions beyond the scope of application of the specific domestic legal instruments referred to.

  108. 108.

    This will be further addressed in Sect. 8.4.1.3.

  109. 109.

    As indicated by the Report conducted by the International Finance Corporation of the World Bank and by the UN Special Representative to the Secretary-General on Business and Human Rights, stabilization clauses can be classified into three categories: a) freezing clauses, which de facto freeze the law applicable to the contract at the moment of its conclusion, and limited freezing clauses, that cover only some of the regulatory activities of the host State; b) economic equilibrium clauses, which require the investor to comply with the new rules introduced by the host State, but allow him to claim compensation for the costs of compliance; c) hybrid clauses, which could be described as a sort of prescriptive requirement for the restitutio in integrum, or take the form of opt-outs from the application of the new rules introduced in the host country. Even more serious is the situation in which stabilization clauses enjoy coverage of BIT umbrella clauses, resulting in further reinforcement of the legal effect thereof (International Finance Corporation—World Bank Group 2009). See for example Convention between Republic of Cameroon and SG Sustainable Oils Cameroon PLC, 17 September 2009, http://www.farmlandgrab.org/post/print/21028, accessed 1 March 2017, Section 20.4: Change of Law: ʽ(a) If any Change of Law has the effect of impairing, conflicting or interfering with the implementation of Investor Activities, or limiting abridging or adversely affecting the value of the Production Area or any of the rights […] (i) take all actions available to it to reverse the effect of such Change of Law upon Investor Activities […]The foregoing obligation shall include the obligation to take all appropriate measures to resolve promptly by whatever means may be necessary, including by way of exemption, legislation, decree and/or other authoritative acts, any conflict or anomaly between this Convention or any Project Agreement and Law; or (ii) compensate Investor for the present and the future Costs incurred by Investor as a result of the Change of Law […]ʼ.

  110. 110.

    See in the international investment context, Simma 2011, at 576.

  111. 111.

    See on this, Cotula 2006, at 111; Stern 2011; Leader 2006, at 658; Bertoli and Crespi Reghizzi, 2014, at 43.

  112. 112.

    Violi 2015, at 36.

  113. 113.

    Carbone 2007, at 205.

  114. 114.

    Radicati di Brozolo 2005, at 269.

  115. 115.

    Bertoli and Crespi Reghizzi 2014, at 35.

  116. 116.

    See on that, Blessing 1997, at 13; Croff 1982, at 613.

  117. 117.

    These norms clearly influence the execution of contractual obligations on the part of the host State, see Giardina 1982, at 682.

  118. 118.

    Cf. Parkerings-Compagniet AS v Lithuania, ICSID, Arbitral Award, 11 September 2007, Case No. ARB/05/8, paras 332–333.

  119. 119.

    Methanex Corporation v United States, UNCITRAL/NAFTA, Final Award of the Tribunal on Jurisdiction and Merit, 3 August 2005, para 7.

  120. 120.

    Sornarajah 1981, at 187.

  121. 121.

    See, in particular, Revere Copper and Brass.

  122. 122.

    Leader 2006, at 628.

  123. 123.

    See, in this context, the The Baku-Tbilisi-Ceyhan Pipeline Company (2003) BTC Human Rights Undertaking , 22 September 2003, http://subsites.bp.com/caspian/Human%20Rights%20Undertaking.pdf, accessed 1 March 2017, which involves a (binding) unilateral commitment of the BTC consortium not to interpret the contractual stabilization clauses in a way as to prevent the pursuit of environmental protection and human rights.

  124. 124.

    Fedax N.V. v Republic of Venezuela, ICSID, Arbitral Award, Case No. ARB/96/3, 9 March 1998 (Fedax v Venezuela).

  125. 125.

    Dekastros 2013, at 288.

  126. 126.

    Schreuer 2009, at 122, they would cause negative impacts on the economy of the host States.

  127. 127.

    1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 575 UNTS 159 (ICSID Convention).

  128. 128.

    Dolzer 2005, at 269; Sornarajah 2010, at 227; Sacerdoti 1997, at 307; Abaclat and Others v The Argentine Republic, ICSID, Decision on Jurisdiction and Admissibility, Case No. ARB/07/5, 4 August 2011 (Abaclat), Dissenting Opinion of Professor Georges Abi Saab of 28 October 2011.

  129. 129.

    Abaclat.

  130. 130.

    Abaclat, para 373 and 378.

  131. 131.

    1990 Bilateral Investment Treaty between Argentina and Italy (BIT Argentina-Italy) (entered into force on 14 October 1993).

  132. 132.

    Abaclat, Dissenting Opinion of Professor Georges Abi Saab of 28 October 2011; see also SGS Société Générale de Surveillance S.A. v Republic of Philippines, ICSID, Decision on Jurisdiction, Case No. ARB/02/6, 29 January 2004, para 99 where the arbitrators held that ʽ[i]n accordance with normal principles of treaty interpretation, investments made outside the territory of the Respondent State, however beneficial to it, would not be covered by the BITʼ.

  133. 133.

    Abaclat, Dissenting Opinion of Professor Georges Abi Saab of 28 October 2011, interesting at 97–98 on the unified economic category of investment under ICSID and the remoteness of the financial products.

  134. 134.

    See e.g. NAFTA, Article 1139.

  135. 135.

    Also the BIT between Argentina and Italy specifies that a credit must be directly connected to an investment. BIT Argentina-Italy, Article 1(1)(d).

  136. 136.

    Arbitrators have based their reasoning on Fedax v Venezuela, where the tribunal held a similar opinion as to the non-necessity of the physical transfer of funds in case of financial products. This award has also been significantly criticized because of its very broad definition of territorial nexus. Furthermore, the case was different as to the instruments involved in the dispute. In Fedax, the controversy was related to promissory notes given in exchange for services in Venezuela. The question, therefore, was whether the endorsement of these promissory notes outside Venezuela would severe the link with the underlying transaction, to which they were connected.

  137. 137.

    Bayview Irrigation District and others v United Mexican States, ICSID, Arbitral Award, Case No. ARB(AF)/05/1, 19 June 2007 (Bayview v Mexico).

  138. 138.

    The Canadian Cattlemen for Fair Trade v United States of America, UNCITRAL/NAFTA Ad Hoc Tribunal, Award on Jurisdiction, IIC 316 (2008), 28 January 2008.

  139. 139.

    Knahr 2009, at 53.

  140. 140.

    Bayview v Mexico, paras 102 and 104.

  141. 141.

    Canadian Cattlemen, para 144.

  142. 142.

    In the same direction, Chapter Thirteen of CETA on Financial Services refers to the definition of investment provided in Chapter Eight , Article 8.1, which explicitly requires the investment to be made in the territory of the other Party.

  143. 143.

    Canadian Cattlemen, para 169.

  144. 144.

    UNCTAD 2011.

  145. 145.

    Or of their parent State, if they have distinct personality. On sovereign investing, see Catà Backer 2010; Bassan 2011, 2015.

  146. 146.

    Many BITs expressly refer to sovereign investors as protected under the notion of investor, see e.g. BITs concluded by Kuwait.

  147. 147.

    On the immunity from regulation, see Gaukrodger 2010; Catà Backer 2010, at 13.

  148. 148.

    See ext. Adinolfi 2015, at 223.

  149. 149.

    Ext. De Schutter 2014.

  150. 150.

    Milano 2015, at 64.

  151. 151.

    Catà Backer 2013, at 19.

  152. 152.

    Catà Backer 2013, at 108, referring to SWFs.

  153. 153.

    On collision, see Fischer-Lescano and Teubner 2004, at 1005–1006.

  154. 154.

    This definition collectively refers to the entities Government Pension Fund Global and Government Pension Fund Norway.

  155. 155.

    Catà Backer 2013, at 7.

  156. 156.

    Active ownership and exclusion of ‘non-complying’ companies being an example.

  157. 157.

    Catà Backer 2013, at 90; ext. Seck 2011.

  158. 158.

    Catà Backer 2013. See also Oddenino 2015, at 128, on the need of territoriality in advancing erga omnes rules.

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Arcuri, A., Violi, F. (2017). Reconfiguring Territoriality in International Economic Law. In: Kuijer, M., Werner, W. (eds) Netherlands Yearbook of International Law 2016. Netherlands Yearbook of International Law, vol 47. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-207-1_8

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