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Dr Mona Paulsen

This course is available on the LLM (extended part-time), LLM (full-time) and University of Pennsylvania Law School LLM Visiting Students. This course is available with permission as an outside option to students on other programmes where regulations permit.

This course has a limited number of places and demand is typically high. This may mean that you’re not able to get a place on this course.

None. Students with no previous background in public international law may find it helpful to consider consulting a standard textbook such as M. Evans (ed.), International Law (OUP, 5th ed., 2018) or J. Crawford, Brownie’s Principles of Public International Law (OUP, 9th ed., 2019).

Investment treaties are complex, decentralised instruments of global economic governance. After the Second World War, states designed international rules to protect foreign direct investment in-flows deemed necessary perquisites for facilitating economic development and to secure prosperity for investors of capital-exporting states. Investment treaties seek to protect foreign investors from uncompensated expropriation, arbitrary regulatory treatment, and other adverse actions taken by “host” states. Most modern investment treaties are negotiated on a bilateral basis, with some covering a specific sector or region.

A key feature of investment treaties is the means for settling international investment disputes. Investment treaties often permit foreign investors to sue host states directly before international arbitral tribunals. Access to investor-state arbitration provides covered foreign investors an enforceable remedy that is, importantly, unavailable to equivalent domestic investors. Beginning in the late 1990s, public attention over investor-state arbitration grew due to the explosion of challenges to states regulatory, administrative, and judicial decisions. Today, the network of investment treaties and arbitration practices are the primary sources for multifaceted disputes that balance investment protection and sensitive policy judgments.

This course advance students’ knowledge as to how international investment treaties and investment treaty arbitration protect foreign investment in-flows, impact states’ regulatory autonomy, and support or impair states’ development goals. We begin the course by discussing what political and economic forces drive states to conclude investment treaties with a standing offer to investor-state arbitration. We consider the historical context of investment protection and the critiques of these treaties as entrenching economic exploitation and foreign political control. Next, we will discuss the settlement of disputes, specifically the breach of treatment standards and uncompensated takings of property. We will further examine defences to liability and engage in class discussion as to what deference investment treaty tribunals show host states’ policy judgments. Finally, we will critically assess proposed reforms to investment treaties and the mechanisms for resolving international investment disputes.

This course will have two hours of teaching content each week in Lent Term and two additional hours in the Summer Term. There will be a Reading Week in Week 6 of Lent Term.

One 2,000 word formative essay during the course.

Reading lists will be provided for each seminar on Moodle. Essential readings combine primary source materials along with introductory, secondary source materials to help students navigate the topics. The course will assign select political economy and history readings to supplement select topics.  Where possible, readings will include relevant videos and podcasts to enhance student learning.

Indicative textbooks include: C.L. Lim, et al., International Investment Law and Arbitration (2021); J. Bonnitcha et al., The Political Economy of the Investment Treaty Regime (2017); M. Sornarajah, The International Law on Foreign Investment (2021).

Exam (100%, duration: 2 hours, reading time: 15 minutes) in the summer exam period.