State-to-State Dispute Settlement Pursuant to Bilateral Investment Treaties: Is There Potential?

Abstract

This article discusses recent developments in EU and domestic courts, which shed light on the mechanism of the application of internationally mandatory rules. Following early insight by Professor Treves, such Court precedents show that internationally mandatory rules do not operate, as is traditionally advocated, before the choice-of-law rules by imposing their application. On the contrary, such rules are given effect after the assessment of the applicable law and of its contents, and on the basis of a fungibility or proportionality test, i.e., when the results they aim to obtain are not provided by the foreign applicable law. These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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