The Cross-Fertilisation of International Investment Law and International Humanitarian Law: Prospects and Pitfalls

This chapter examines the possible cross-fertilisation of international investment law (IIL) and international humanitarian law (IHL), applying the scholarship on judicial borrowing. Cross-fertilisation is understood as using IHL concepts and principles as the interpretive reference as opposed to direct application of those in IIL. The core argument is that the use of IHL concepts can facilitate the arbitrator in investment treaty disputes involving situations of armed conflicts. Notwithstanding some limitations and pitfalls of the cross-fertilisation, it offers a sophisticated framework for incorporating IHL into IIL provided that contextual, ideological and institutional similarities and differences between the two regimes are considered. The chapter concludes that the successful cross-fertilisation will bring clarity and precision to the IIA provisions, enhance legitimacy of arbitral awards and foster coherence in the interpretation of international law.