Beyond Dispute Resolution: Historical Investor-State Arbitration as Governance

Dr. Vladislav Djanic is a Serbian-qualified international dispute resolution lawyer who has published on various topics in investor-state arbitration. He holds degrees from the University of Amsterdam, the London School of Economics, and the University of Novi Sad.

• Acknowledgments1 Introduction1 Setting the Stage2 Rich Past Notwithstanding … A Field Lacking in History3 Aims of the Book4 Methodology4.1 Historical Approach and Its Limitations4.2 Temporal Scope and (Lack of) Periodisation4.3 Conceptual Clarifications5 The Structure of the Argument2 Historical Investor-State Arbitration as Private Dispute Settlement: A Breakdown1 Introduction2 What Was at Stake in Historical Investor-State Arbitration? Beyond the Disputing Parties’ Interests2.1 The Nature of the Investor-State Relationships Underlying the Historical Investor-State Arbitrations2.2 The Anatomy of the Historical Investor-State Disputes3 Legal Indeterminacy and the Room for Discretionary Decision-Making in Historical Investor-State Arbitration4 A Key Role for Private Actors in Historical Investor-State Arbitration4.1 Private Party Control over Claims4.2 The Quest for Neutrality and the Externalisation of Decision-Making4.3 Auxiliary Private Actors5 Similar in Dissimilarity: The Pervasiveness of Historical Investor-State Arbitration’s Key Features5.1 Cutting across the Different Legal Frameworks Underlying Historical Investor-State Arbitration5.2 Transcending the Private Law/Public Law Conceptual Chasm6 Conclusions: The Breakdown of the Conception of Historical Investor-State Arbitration as (Just) Private Dispute Settlement3 Historical Investor-State Arbitration and the Cost of Governance1 Introduction2 Deciding on Matters Relating to Public Debt2.1 Hambros and Lazard v Romanian Monopolies Institute2.2 Peru v Peruvian Corporation3 Determining the Cost of State Appropriation of Investor Property3.1 Colombia v Cauca Company3.2 The Grand Trunk Railway Arbitration3.3 The Jaffa-Jerusalem Railway Arbitration4 Imposing Liability in Investor-State Relations for Breach of Obligations4.1 Duff Development Company v Government of Kelantan I and II4.2 Sudan v Turriff5 Size Matters: Potential Ramifications and Governance Implications of Monetary Awards by Historical Investor-State Arbitral Tribunals6 Conclusions4 Governing by Instruction: Directing State Conduct through Historical Investor-State Arbitration1 Introduction2 Directing State Entity Conduct through Adjudicative (Arbitral) Review: Czechoslovakian Administration v RCA2.1 Radio Corporation of America: From Inception to Independence2.2 The Establishment of RCA’s Czechoslovakia Circuit: The First Direct US-Czechoslovakia Radio-Telegraphic Route2.3 Trouble on the Horizon: Mackay Radio Sparks a Rift between the RCA and the Czechoslovakian Administration2.4 The Arbitration2.5 The Immediate (albeit Temporary) Fallout: Czechoslovakia Abstains from Opening an Additional Telegraphic Circuit with the US3 Directing State Conduct through Primary Decision-Making: The Post-World War I Peace Treaty Railway Arbitrations3.1 The Peace Treaties and the Need for Railway Reorganisation Following the Break-up of the Austro-Hungarian Empire3.2 Sopron-Köszeg Local Railway Company v Austria and Hungary3.3 Zeltweg-Wolfsberg and Unterdrauburg-Woellan Railway Company v Austria and Yugoslavia3.4 Barcs-Pakrac Railway Company, Ltd v Hungary and Yugoslavia3.5 The Peace Treaty Railway Arbitrations and Historical Investor-State Arbitration as an Avenue for Directing State Conduct4 Historical Investor-State Arbitration as a Means of Directing State Conduct: A Recurring Theme5 Conclusions5 Developing the Law through Historical Investor-State Arbitration1 Introduction2 Developing the Law for the Disputing Parties: The Power and Traction Concession in Greece2.1 The Power and Traction Concession2.2 The Arbitrations2.3 The Implications of the Power and Traction Concession Cases – Governing an Investor-State Relationship through Arbitral Development of the Law3 Developing the Law for a Disputing Party’s Relations with Third Parties: RCA v China3.1 The RCA’s Entrance into the Chinese Market amidst Uncertain Times3.2 The RCA’s Troubles Spread to China: The Mukden Incident and China’s Signing of a Contract with Mackay Radio3.3 The Arbitral Proceedings3.4 The Reverberations of the RCA v China Arbitration: RCA’s Recalibration of Relations with Third Parties following the Tribunal’s Decision4 Developing the Law beyond the Disputing Parties4.1 Into the Multiverse: The Gradual Shift toward the Reliance on Previous Case Law in Historical Investor-State Arbitration4.2 Generating Normativity that Governed Investor-State Relations5 Conclusions6 Historical Investor-State Arbitration as a Mode of Governance1 A Recapitulation of Investor-State Arbitration’s Historical Role in Governance2 With an Eye to the Future: Toward a Comprehensive Understanding of Investor-State Arbitration’s Role as a Mode of GovernanceBibliographyIndexAcknowledgments1 Introduction1 Setting the Stage2 Rich Past Notwithstanding … – a Field Lacking in History3 Aims of the Book4 Methodology4.1 Historical Approach and Its Limitations4.2 Temporal Scope and (Lack of) Periodization4.3 Conceptual Clarifications5 The Structure of the Argument2 Historical Investor-State Arbitration as Private Dispute Settlement: a Breakdown1 Introduction2 What was at Stake in Historical Investor-State Arbitration? Beyond the Disputing Parties’ Interests2.1 The Nature of the Investor-State Relationships Underlying the Historical Investor-State Arbitrations2.2 The Anatomy of the Historical Investor-State Disputes3 Legal Indeterminacy and the Room for Discretionary Decision-Making in Historical Investor-State Arbitration4 A Key Role for Private Actors in Historical Investor-State Arbitration4.1 Private Party Control over Claims4.2 The Quest for Neutrality and the Externalization of Decision-Making4.3 Auxiliary Private Actors5 Similar in Dissimilarity: the Pervasiveness of Historical Investor-State Arbitration’s Key Features5.1 Cutting across the Different Legal Frameworks Underlying Historical Investor-State Arbitration5.2 Transcending the Private Law/Public Law Conceptual Chasm6 Conclusions: the Breakdown of the Conception of Historical Investor-State Arbitration as (Just) Private Dispute Settlement3 Historical Investor-State Arbitration and the Cost of Governance1 Introduction2 Deciding on Matters Relating to Public Debt2.1 Hambros and Lazard v Romanian Monopolies Institute2.2 Peru v Peruvian Corporation3 Determining the Cost of State Appropriation of Investor Property3.1 Colombia v Cauca Company3.2 The Grand Trunk Railway Arbitration3.3 The Jaffa-Jerusalem Railway Arbitration4 Imposing Liability in Investor-State Relations for Breach of Obligations4.1 Duff Development Company v Government of Kelantan I and II4.2 Sudan v Turriff5 Size Matters: Potential Ramifications and Governance Implications of Monetary Awards by Historical Investor-State Arbitral Tribunals6 Conclusions4 Governing by Instruction: Directing State Conduct through Historical Investor-State Arbitration1 Introduction2 Directing State Entity Conduct through Adjudicative (Arbitral) Review: Czechoslovakian Administration v RCA2.1 Radio Corporation of America: from Inception to Independence2.2 The Establishment of RCA’s Czechoslovakia Circuit: the First Direct US-Czechoslovakia Radio-Telegraphic Route2.3 Trouble on the Horizon: Mackay Radio Sparks a Rift between the RCA and the Czechoslovakian Administration2.4 The Arbitration2.5 The Immediate (albeit Temporary) Fallout: Czechoslovakia Abstains from Opening an Additional Telegraphic Circuit with the US3 Directing State Conduct through Primary Decision-Making: the Post-World War I Peace Treaty Railway Arbitrations3.1 The Peace Treaties and the Need for Railway Reorganisation Following the Break-up of the Austro-Hungarian Empire3.2 Sopron-Köszeg Local Railway Company v Austria and Hungary3.3 Zeltweg-Wolfsberg and Unterdrauburg-Woellan Railway Company v Austria and Yugoslavia3.4 Barcs-Pakrac Railway Company, Ltd v Hungary and Yugoslavia3.5 The Peace Treaty Railway Arbitrations and Historical Investor-State Arbitration as an Avenue for Directing State Conduct4 Historical Investor-State Arbitration as a Means of Directing State Conduct: a Recurring Theme5 Conclusions5 Developing the Law through Historical Investor-State Arbitration1 Introduction2 Developing the Law for the Disputing Parties: the Power and Traction Concession in Greece2.1 The Power and Traction Concession2.2 The Arbitrations2.3 The Implications of the Power and Traction Concession Cases – Governing an Investor-State Relationship through Arbitral Development of the Law3 Developing the Law for a Disputing Party’s Relations with Third Parties: RCA v China3.1 The RCA’s Entrance into the Chinese Market Amidst Uncertain Times3.2 The RCA’s Troubles Spread to China: the Mukden Incident and China’s Signing of a Contract with Mackay Radio3.3 The Arbitral Proceedings3.4 The Reverberations of the RCA v China Arbitration: RCA’s Recalibration of Relations with Third Parties Following the Tribunal’s Decision4 Developing the Law beyond the Disputing Parties4.1 Into the Multiverse: the Gradual Shift toward the Reliance on Previous Case Law in Historical Investor-State Arbitration4.2 Generating Normativity that Governed Investor-State Relations5 Conclusions6 Historical Investor-State Arbitration as a Mode of Governance1 A Recapitulation of Investor-State Arbitration’s Historical Role in Governance2 With an Eye to the Future: Toward a Comprehensive Understanding of Investor-State Arbitration’s Role as a Mode of GovernanceIndex of Authorities