References of "Journal of International Dispute Settlement"
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See detailBetween Rights and Remedies: The Access to Investment Treaty Arbitration as a Substantive Right of Foreign Investors
Radović, Relja UL

in Journal of International Dispute Settlement (2019), 10(1), 42-68

Arbitrators in investment treaty arbitration have not been reluctant to express their views that the access to international arbitration forms part of the substantive protection of investors. The present ... [more ▼]

Arbitrators in investment treaty arbitration have not been reluctant to express their views that the access to international arbitration forms part of the substantive protection of investors. The present article examines what is the added legal value of such views, and whether they are capable of requalifying procedural rules as substantive ones, or alternatively, breaking the separation line between substantive and procedural rules. This is discussed in the context of the application of most-favoured-nation clauses to dispute settlement clauses, as a case study. It is argued that the arbitral qualification of dispute resolution clauses as a means of investors’ protection cannot prompt a change regarding their legal nature, and has primarily an instrumental role in legitimizing expansionary interpretive outcomes. But the fact that a blurred separation line between substantive and procedural rules appears acceptable in investment treaty arbitration implies fragmentation from general international law in that respect, effected through arbitral lawmaking. [less ▲]

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See detailClaims by Dual Nationals under Investment Treaties: Are Investors Entitled to Sue Their Own States?
Garcia Olmedo, Javier UL

in Journal of International Dispute Settlement (2017)

Nationality plays a vital role in the field of investor-state arbitration. Most investment treaties require that, to benefit from treaty protection, an investor must be a national of the home state. Yet ... [more ▼]

Nationality plays a vital role in the field of investor-state arbitration. Most investment treaties require that, to benefit from treaty protection, an investor must be a national of the home state. Yet, the determination of nationality for investment treaty purposes can be particularly complex, raising a number of unresolved questions of considerable practical importance. One of these questions is whether investors who hold the nationality of both state parties to an investment treaty (i.e. dual nationals) are entitled to sue their own home state where the treaty is silent on the issue of dual nationality. This contribution contends that, when faced with a claim of this nature, arbitral tribunals should apply the well-established customary rule of dominant and effective nationality, and uphold jurisdiction only if the investor maintains a stronger connection with its home state. [less ▲]

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