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Hirsch, Moshe --- "Sources of International Investment Law" [2012] ELECD 630; in Bjorklund, K. Andrea; Reinisch, August (eds), "International Investment Law and Soft Law" (Edward Elgar Publishing, 2012)

Book Title: International Investment Law and Soft Law

Editor(s): Bjorklund, K. Andrea; Reinisch, August

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781003213

Section: Chapter 2

Section Title: Sources of International Investment Law

Author(s): Hirsch, Moshe

Number of pages: 30

Extract:

2. Sources of international investment
law
Moshe Hirsch

The point of departure for a discussion on sources of investment law is the
recognized list of sources of general international law according to Article
38 of the Statute of the International Court of Justice (ICJ).1 It is
noteworthy, however, that not all rules of public international law are
relevant to relationships between host states and foreign investors.2 This
chapter emphasizes the distinctive features of the sources of international
investment law and briefly discusses the interactions between non-binding
instruments (`soft law') and the recognized sources of investment law. Soft
law rules are not legally binding and legal decision-makers have discretion
whether to apply them to a particular dispute or not. Though not
mandatory, these norms often influence investment arbitrators. As
elaborated below, the recognized sources included in Article 38 interact


1
This approach was also undertaken by the Report of the Executive
Directors on the ICSID Convention. The Report provides as follows: `40. . . . The
term ``international law'' as used in this context should be understood in the sense
given to it by Article 38(1) of the Statute of the International Court of Justice,
allowance being made for the fact that Article 38 was designed to apply to inter-
State disputes.' ICSID, `Report of the Executive Directors on the Convention'
(ICSID 2006) CRR_English-final.pdf>; see also Inceysa Vallisoletana S.L. v Republic of El
Salvador, Award of 2 August 2006, ...