Abstract
A common assumption in investor-state dispute settlement (ISDS) is that subject to the language of the arbitral provision invoked, an arbitration tribunal can only decide claims that allege a breach of the substantive obligations articulated in the instrument from which it derives jurisdiction. Over time, this assumption has come under challenge, including in cases where an ISDS tribunal derives jurisdiction from a municipal law source, such as an investment contract or legislation. The article addresses this issue by critiquing the Decision on Jurisdiction in Cambodia Power Company v. Cambodia, wherein an ICSID tribunal constituted pursuant to related investment contracts concluded that “customary international law exists and may be applied independently of any choice of law.” Adopting a TWAIL-lens, it unpacks the political dimensions inherent in any issue of jurisdiction of ISDS tribunals. On such premise, the article argues that the Cambodia Power decision is jurisprudentially unsound, makes flawed assumptions about the omnipresence of customary international law in foreign investment protection, and evokes comparisons with the civilization mission that defined the colonial encounter.
Recommended Citation
Pathak, Harshad
(2024)
"“Spread Your Wings and Fly Away” – Reimagining Customary International Law Jurisdiction in Investor- State Disputes,"
National Law School of India Review: Vol. 35:
Iss.
2, Article 10.
DOI: 10.55496/HKQZ7167
Available at:
https://repository.nls.ac.in/nlsir/vol35/iss2/10
Digital Object Identifier (DOI)
10.55496/HKQZ7167
