Journal Article

Cross-Regime Harmonization through Proportionality Analysis: The Case of International Investment Law, the Law of State Immunity and Human Rights

Stephan W. Schill

in ICSID Review - Foreign Investment Law Journal

Published on behalf of International Centre for Settlement of Investment Disputes

Volume 27, issue 1, pages 87-119
Published in print September 2012 | ISSN: 0258-3690
Published online August 2012 | e-ISSN: 2049-1999 | DOI: https://dx.doi.org/10.1093/icsidreview/sis002
Cross-Regime Harmonization through Proportionality Analysis: The Case of International Investment Law, the Law of State Immunity and Human Rights

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The present paper analyzes the relationship between international investment law and the law of State immunity as a case study for how international investment law and general international law relate to each other. Comparing these two bodies of law is particularly interesting because it allows one to shift the discussion about fragmentation in international investment law from a static to a dynamic and contextual perspective, that is, one that views the relationship between two bodies of international law and the interaction between them in an evolutionary perspective and focuses on the interests protected by both bodies of law. Furthermore, the relationship between international investment law and the law of State immunity illustrates how cross-regime analysis between international investment law and other international legal regimes, in particular human rights law, can be useful to generate insights about how international investment law should be interpreted and applied, and by means of which methods. Thus, the present article shows how proportionality analysis, which is used extensively by the European Court of Human Rights to balance human rights and State immunity, can also be used as a tool of defragmentation in international investment law and of inspiration to clarify the relationship between investment law and the law of State immunity.

Journal Article.  19700 words. 

Subjects: Public International Law

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