The Role of the Domestic Law of the Host State in Determining the ratione materiae Jurisdiction of Investment Treaty Tribunals: The Partial Revival of the Localisation Theory

Eftekhar, R. (2019)

Doctoral Thesis

This Thesis begins by examining the general role that relevant domestic laws (of the capital-importing and capital-exporting countries) play in the determination of contested jurisdictional and substantive issues in investment treaty arbitrations. Subsequently, in two separate chapters, the Thesis delineates the legal bases for the application and the specific function of the municipal laws of the recipient state in settling two paramount issues of jurisdiction ratione materiae in investment treaty arbitrations, namely the matters concerning the legality of the investment as well as the existence of ‘property rights’ underlying the ‘investment’. Having pinpointed the vast relevance of the internal laws of the host state in deciding upon these jurisdictional thresholds, the Thesis goes on to submit that this extensive role of the host state law in the above-mentioned matters coupled with other circumstances and developments in the international law of investment (in particular, the ever-increasing role of the courts of the host state in the resolution of investment treaty arbitration disputes) tend to partially revive the long-dormant theory of ‘localisation’ which had once been substantially affected in a negative way by the inception and the introduction of bilateral investment treaties.

• Calvo Doctrine
• Localisation Trend
• Bilateral Investment Treaties
• Renvoi
• National Laws
• Subject Matter Jurisdiction
• Legality Requirement
• Underlying-Private Rights
• Host State-Courts
• Rematerialisation of Localisation

• All authors: Eftekhar, R.
• Supervisor: Brabandere, E.C.P.D.C. de
• Committee: Herik, L.J. van den; Gazzini, T.; Radi, Y.
• Qualification: Doctor (dr.)
• Awarding Institution: Institute of Public Law, Leiden Law School, Leiden University
• Date: 2019-12-19