Reframing the investment treaty system

Project leader(s)

This project explores different frames for understanding the investment treaty system and what these mean when it comes to resolving a variety of contentious issues. Investment treaties are clearly creatures of public international law: they are entered into by two or more states and are substantively governed by public international law. However, they are distinct from most public international law treaties because the vast majority of them permit investors to bring arbitral claims directly against host states based on procedural rules and enforcement mechanisms developed largely in the context of international commercial arbitration and investor–state contracts. Accordingly, the system grafts private international law dispute resolution mechanisms onto public international law treaties.

Comparisons are also drawn between the investment treaty system and other subfields of public international law that concern a state’s right to act and regulate domestically, like trade and human rights, which Anthea groups together as examples of ‘international public law’. Like international trade law, investment treaties are international economic law agreements that require a delicate balancing between economic and noneconomic interests. And like certain international human rights’ regimes, investment treaties are interstate agreements that regulate a state’s treatment of non-state actors within its territory and permit those actors to challenge governmental conduct before an international body.

Why are these comparisons important? Investment treaties have traditionally been short and vaguely worded, while the system as a whole is new and under-theorised. On a micro level, participants routinely draw on comparisons with other legal fields when seeking to fill gaps, resolve ambiguities, or understand the system’s nature. On a macro level, this ‘clash of paradigms’ appears in competing conceptualisations of the investment treaty system as a subfield within public international law, as a species of international arbitration, or as a form of internationalised judicial review. These distinct frameworks help to shape understandings of the investment treaty system’s nature and its development by emphasising certain features, and empowering particular actors, over others.

2018 CHASS Book Prize Longlist

Book by Dr Anthea Roberts makes 2018 CHASS Australia Book Prize Longlist

06 September 2018

2018 CHASS Australia Book Prize Longlist announced


A number of the articles in this project have played an influential role in shaping debates in academia and practice about the investment treaty system. For instance, Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States is the second most highly cited international law article in the American Journal of International Law over the last 5 years. Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System is also highly cited, picking up new citations at an even faster rate than Power and Persuasion .


Power and Persuasion won the 2011 Francis Deák Prize, which is awarded by the American Society of International Law for the best article published in the American Journal of International Law by a scholar under 40 years of age. The Article was shortlisted by OGEMID (the main international arbitration list serve) for the International Dispute Resolution Article of the Year (2011).

Adoption of proposals by international organisations

The proposals in Power and Persuasion for states to play a more active role in the interpretation and application of their investment agreements has been picked up by a variety of international organisations, including the United Nations Conference on Trade and Development (UNCTAD) in their Report on ‘Interpretation of International Investment Agreements: What States Can Do’ and the OECD in their Reports on ‘Investment Treaties over Time - Treaty Practice and Interpretation in a Changing World’ and ‘The legal framework applicable to joint interpretive agreements of investment treaties’. These proposals have also been endorsed by a variety of NGOs and think tanks in reports such as ‘State Control over the Interpretation of Investment Treaties‘and ‘State Interpretations of Investment Treaties: Feasible Strategies for Developing States’.

Influence in international law

Power and Persuasion has been discussed in the leading practitioner publications and list serves, including International Arbitration Reporter and OGEMID. It has been cited by states in cases like Ecuador v United States and Mobil v Canada and by arbitral tribunals in cases like Bureau Veritas v Paraquay. It has also been discussed by leading arbitrators, including Gabrielle Kaufmann-Kohler, and government figures, such as the Attorney General of Singapore, in public speeches. It has also been discussed on the two main international law blogs (EJIL Talk! and Opinio Juris ) and on the International Economic Law and Policy Blog. Outside of the investment treaty field, the article has been influential in the context of the International Law Commission’s ongoing project on Treaties Over Time.

Professor Anthea Roberts

Anthea Roberts, a Professor at the School of Regulation and Global Governance (RegNet), is an interdisciplinary researcher and legal scholar who focuses on new ways of thinking about complex and...

Trade, investment & IP 440x440

Trade, investment and intellectual property

This cluster looks at the impacts of the trade, investment and intellectual property regimes on the regulatory sovereignty and capacity of states and the consequences that flow from those impacts.

Updated:  10 August 2017/Responsible Officer:  Director, RegNet/Page Contact:  Director, RegNet