Applicable Law in Investor-State Arbitration: The Interplay between National and International Law (Hege Elisabeth Kjos)

The problem of applicable law in international arbitration has always been far more persistent in the investment rather than its commercial dimension. Indeed, the tumultuous oil arbitrations of the 1950s not only highlighted the naivety by which choice of law clauses were drafted in investment contracts but also the political, ethical and legal conundrums faced by arbitrators called upon to settle disputes involving choice of law clauses encompassing a maze of national laws, international law, religious norms and obscure trade usages. These times are long gone but they left a lasting imprint on the psyche of Arab and African politicians, such that led them to distrust arbitration altogether for a long time. The ICSID Convention has provided some degree of certainty but as Kjos aptly demonstrates in her analysis the interplay between national and international law still strains investment arbitrators in their choice of applicable law in particular situations. Hence, the book is not only timely but also an excellent addition to the international investment literature on a topic for which much has been written but in respect of which a systematic and methodological framework was badly needed. In my opinion, this book succeeds in both of these endeavours.