Article
What Does a Corporation Owe?: The Scope of Obligations in International Investment Counterclaims
Minnesota Journal of International Law
(2022)
Abstract
The arbitral use of jus cogens and erga omnes to source obligations for private international actors from public international law are advancing on two fronts—jurisdiction and substance. This paper argues that, taken together, these concepts and these fronts are moving toward a ‘presumption of applicability’ in investor-state dispute settlement (ISDS) tribunals tasked with determining whether international law applies directly to investors. On the jurisdiction front, we chart the journey from a general bar on counterclaims in international investment law (IIL) to three recent standards permitting counterclaims and suggest ways in which the concepts of jus cogens and erga omnes might be understood differently in the contexts of each standard. On the substantive front, we further define the contours of jus cogens and erga omnes and how they are deployed in recent case law. We discuss how these concepts can be invoked, how the rights and obligations they produce are defined, to which actors they attach, and to whom or what those rights and obligations are owed.
Disciplines
Publication Date
2022
Citation Information
Kevin Crow and Lina Lorenzoni Escobar. "What Does a Corporation Owe?: The Scope of Obligations in International Investment Counterclaims" Minnesota Journal of International Law (2022) Available at: http://works.bepress.com/kevin_crow/29/