Investment Treaty Law and International Law – Vol. 23 No. 1

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Authors: Matthew T. Parish* and Charles B. Rosenberg**

Published: August 2012

Description: International lawyers blanch at the notion that different areas of their discipline might come into conflict. But it does happen. When the United Nations Security Council imposed sanctions upon a list of suspected terrorist organizations, the European Court of Justice refused to give effect to those sanctions on the ground that the affected individuals had no due process. And when Austrian authorities refused to let lorry drivers protest on a main road used by international transport companies because it restricted the free movement of goods, a conflict arose between European human rights law and European Union law.

In domestic legal orders, problems of this kind are resolved in two ways. First, a legal hierarchy may exist that resolves conflicts. For example, the U.S. Constitution overrides inconsistent U.S. federal laws, which in turn override inconsistent state laws, which override inconsistent municipal statutes. Second, the development and interaction of different areas of law in a domestic legal system can ultimately be resolved by one single high court, typically an appellate, constitutional, or supreme court. However, neither of these avenues is available for reconciling different areas of international law. International law is the product of treaties – contracts between States – and there will inevitably never be consensus on which treaty is supreme. For instance, a non-EU member State that signs a treaty with an EU member State will likely not be sympathetic to the assertion that EU law should trump its treaty rights. Likewise, because each treaty creates its own dispute resolution mechanism (if any), international courts and tribunals may adopt a stance of defensive isolationism, applying the international law they were created to adjudicate at the expense of some other branch of international law which, they may determine, is none of their concern. Investment treaty tribunals occupy just such an uncertain space. While they are established to apply international investment law, we must be ready for the prospect of obligations under investment treaties coming into conflict with other …

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*Matthew T. Parish is a partner with the Geneva office of Holman Fenwick Willan LLP. Dr. Parish specializes in international litigation and arbitration, particularly on matters with an emerging market focus, including investment treaty arbitrations, State contracts and inter-sovereign dispute resolution. He was formerly legal counsel at the World Bank in Washington, DC and advises on a range of legal issues arising out of the law and practice of international organizations.
**Charles B. Rosenberg is a Legal Adviser at the Iran-United States Claims Tribunal in The Hague.