Chapter 2 The development of international law by ICSID tribunals
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International law has a central place in the activities of investment tribunals. Over time, caselaw has displayed a marked shift towards international law at the cost of host State law. International investment law is not a separate field of international law and even less a self-contained regime. It is part of the mainstream of international law. Many treaties providing for investment arbitration do not restrict tribunals to the treaties' substantive standards but allow the application of international law in general. Treaty provisions dealing with applicable law almost invariably include international law. Certain core areas of international law are of systemic importance and hence indispensable. These are the law of State responsibility, the law of treaties and the law governing dispute settlement. In addition, investment tribunals routinely apply a multitude of treaties, customary international law as well as general principles of law. Support for this practice may be found in Article 31(3)(c) of the VCLT which directs that 'any relevant rules of international law applicable in the relations between the parties' are to be taken into account in the interpretation of treaties. The application of international law by ICSID tribunals inevitably also leads to its development. A theoretical explanation for this phenomenon would be to see the practice of tribunals as delegated State practice or to regard pleadings before tribunals as articulating an opinio juris. In addition, tribunal practice exerts a perceptible influence on the drafting of treaties. The customary minimum standard for the treatment of aliens is today driven by the practice of tribunals on fair and equitable treatment.

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