Introduction

No issue in the field of investment arbitration is more fundamental, or more disputed, than the distinction between treaty and contract.[1] There is a struggle between those who believe BIT claims should be insulated from contractual claims and those who want to relate the two. That struggle has led to a divided jurisprudence and - as often happens when jurisprudes are divided - to a tendency to caricature opposing positions. In these circumstances both time and further reflection are necessary before any consensus can emerge, and the views of one proponent in the debate are no ...