法律学者对国际投资法发展的影响

IF 2.6 1区社会学 Q1 LAW

Journal of International Economic Law Pub Date : 2024-05-31 DOI:10.1093/jiel/jgae014

William Hamilton Byrne

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引用次数: 0

摘要

国际投资仲裁的参与者既是法律理论的学者，又在仲裁时对法律作出决定，这就提出了有关他们在法律体系中的规范作用的关键问题。本文采用法律实证与社会学相结合的方法，旨在捕捉影响的多向性，从实证角度探讨法律学者对国家间投资法发展的影响。文章依赖于国际争端解决中心（ICSID）判例法中所有法律学者引文的新型数据库，对其进行了定量和定性分析，并与 16 位主要仲裁员和律师的访谈相结合。文章首先介绍了作为国际法代理人的仲裁员/学者，然后详细介绍了研究方法。然后，文章概述了 ICSID 判例法中对法律学术研究的引用，然后考虑了法律行为者为何认为法律学术研究有用。接下来的部分通过分析仲裁员撰写的法律判决和学术著作，说明法律学术如何影响了 ICSID 仲裁中 "投资 "定义的发展。最后一部分与法律行为者进行对话，进一步揭示他们如何处理理论与实践之间相互竞争又相互补充的义务，文章最后反思了法律行为者制定法律的职能所涉及的伦理问题。

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The influence of legal scholars on the development of international investment law

International investment arbitration is inhabited by actors who theorize the law as scholars and decide on it when arbitrating, which raises critical questions concerning their normative role within the legal system. This article explores empirically the influence of legal scholars on the development of inter-national investment law through a combined legal-empirical and sociological approach designed to capture the multidirectional nature of influence. It relies on a novel database of all citations to legal scholarship in International Centre for the Settlement of Disputes (ICSID) case law, which is analysed quantitatively and qualitatively and contextualized alongside interviews with 16 leading arbitrators and lawyers. The article firstly introduces the arbitrator/academic as an agent of international law, and then details the methodology. It then turns to provide an overview of citations to legal scholarship in ICSID case law, before considering why legal actors find it useful. The following parts show how legal scholarship influenced the development of the definition of an ‘investment’ in ICSID arbitration through an analysis of legal decisions and scholarship authored by arbitrators. The final part goes into conversation with the actors to further unravel how they manage competing and complementary obligations towards theory and practice, and the article concludes by reflecting on the ethical implications of their law-making function.

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来源期刊

Journal of International Economic Law LAW-

CiteScore

4.80

自引率

9.70%

发文量

期刊介绍： The Journal of International Economic Law is dedicated to encouraging thoughtful and scholarly attention to a very broad range of subjects that concern the relation of law to international economic activity, by providing the major English language medium for publication of high-quality manuscripts relevant to the endeavours of scholars, government officials, legal professionals, and others. The journal"s emphasis is on fundamental, long-term, systemic problems and possible solutions, in the light of empirical observations and experience, as well as theoretical and multi-disciplinary approaches.