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Freya Baetens speaks at Uppsala Symposium on International Investment Law as a Field for Scholarly Research

On 3 June 2016, the Symposium on International Investment Law as a Field for Scholarly Research was organized by Uppsala University, together with the Nordic Network on Investment Law and the Swedish Institute of International Law.

After the keynote speech by Annette Magnusson (Secretary-General of the Arbitration Institute at the Stockholm Chamber of Commerce), Freya Baetens was invited to give a presentation on EU law before investment arbitration tribunals: continuing the fiction of domestic law as fact?

Ever since the Permanent Court of International Justice in 1925 characterised domestic law and legal decisions as ‘merely facts’ (not to be interpreted as law in and of itself), international courts and tribunals have followed suit – much in the same manner as domestic courts regard foreign law as ‘fact’. Domestic law can be crucial in international investment disputes, as it may be determinative of whether an investment actually exists (e.g. local property rights) or was lawful – the existence of a lawful investment being a predicate to investment treaty coverage.  Or less directly it may contribute to the determination of what the legitimate expectations of the investor could reasonably be, as investors must be taken to know the legal framework in which they operate.

After giving a brief overview of the functioning of domestic law in international adjudication, Freya Baetens examined how current investment treaties and the tribunals applying them regard the position of domestic law in general. Subsequently her analysis focused on the hybrid position of EU law in particular, which is, rather confusingly, sometimes considered ‘fact’ and sometimes ‘applicable law’. Finally, she offered an outlook onto the future through an examination of the provisions addressing the role and function of domestic law in some of the preferential trade and investment agreements which have recently been concluded or are under negotiation.

The programme can be found here.

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