The Gust of Wind: Revisiting the Origin of the Abs-Shawcross Draft Convention
In this Trade and Investment Forum (TIF) lunch, Yuliya Chernykh will present her article discussing an individual’s influence on the development of international law based on archival study of the work of Elihu Lauterpacht.
Chernykh's article lights upon the unknown role of Elihu Lauterpacht in drafting the Abs-Shawcross Draft Convention on Investment Abroad. The information was retrieved from the personal archive of Sir Elihu Lauterpacht and Squire Law Library while staying as a guest fellow at the Lauterpactht Research Center for International Law in Cambridge.
The archive materials demonstrated that Elihu Lauterpacht directly influenced the development of international investment law, in particular the appearance of umbrella clause in the Abs-Shawcross Draft Convention on Investment Abroad and introduction of the special mechanism of dispute resolution enabling a private investor to arbitrate with a state.
Though the Abs-Shawcross Draft Convention on Investment Abroad never came into force it turned to be one of the first and most influential attempt to codify international investment law in 1958-1959. It was presented at the time to the organization later renamed in what is known now as the Organization of Economic Cooperation and Development (OECD) and influenced as such many BITs concluded between the states subsequently. The Abs-Shawcross Draft Convention contained ambitious provisions turning contract violations to the violation of the Convention and introducing a possibility to arbitrate disputes between a private investor and a state. With time, investor-state dispute resolution mechanism was reproduced in most if not all BITs available nowadays whereas umbrella clause appeared in various similar wordings in the substantial number of the concluded BITs.
History behind appearance of the Abs-Shawcross Draft Convention underlines the crucial role of an individual in development of international law. History also shed light on the intent and meaning of some controversial provisions in international investment law.
Chernykh is a PhD Candidate at the Department for Private Law.