Tomoko Yamashita
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Investors in the formation of customary international law
in International organisations, non-State actors, and the formation of customary international law
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As the International Law Commission’s Conclusion 13 on the identification of customary international law provides, decisions of international tribunals can be considered a subsidiary means for the ascertainment of rules of customary international law. As this chapter argues, the real contributors appear to be the claimants who raise and shape the discussions about customary international law before a tribunal, which decides only on the basis of the pleadings and observations submitted by the parties. In that sense, investors have emerged as the most powerful claimants who certainly influence the clarification of rules of customary international law through investor–State dispute settlement.This chapter thus argues that investors exercise a significant influence over the tribunals’ rulings; and addresses the contribution of investors through the combination of two concepts – namely, ‘framing’ and ‘spilling-over effect’. The chapter unpacks both arguments through the study of the exceptions to the local remedies rule by examining the lex lata customary international law of diplomatic protection and emerging interpretations in investor–State dispute settlement, with a special focus on the ‘futility exception’ to the exhaustion of local remedies.

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