Reviews of Kinsella Publications

| International Investment, Political Risk, and Dispute Resolution (2005) | Protecting Foreign Investment Under International Law (1997) |

Reviews of International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, Co-Author (with Noah D. Rubins, Freshfields Bruckhaus Deringer, Paris) (Oxford University Press, 2005)

[Note: the Second Edition was published in 2020]

An important resource for anyone who is trying to understand the uncertain balance between the needs of sovereign governments, the interests of investors, and international law constraints… This book is an excellent reference work and should be included in any library that claims to have a ‘good’ international business collection.
–Holly A. Lakatos, Director of Public Services, Chicago-Kent College of Law Library, March 1, 2006, Legal Information Alert (PDF version). The full review is here.

The proliferation of arbitration proceedings conducted on the basis of BITs, and in particular the auspices of ICSID, naturally led to an increase of publications addressing this issue and the changing landscape of arbitration over the last years. Books dealing with this issue are often commentaries, basic introductions to the procedure of investment arbitration or reviews of investment awards.

The present book is different. It integrates the important issue of dispute resolution into the broader scope of international investment, explains the risks, in particular the political risk, associated with international investment and the legal framework of investment protection at large. It thus broadens the perspective of the reader and allows him to see beyond the everyday issues of the interpretation of the effect of an umbrella clause or the meaning of fair and equitable treatment in a BIT by placing these specific issues into a broader context and showing their interaction with others.

… This book is not a lightweight and does not make for good bedtime-reading. Not being a classic law book, it is a guide which should find its place on the shelf of the person dealing with foreign investment who is interested to explore the various aspects of foreign investment and political risk in their broader context and with a particular emphasis on the legal aspects of this field. This will include, but not be limited to, the issue of dispute resolution. It is thereby well-suited for beginners in the area of investment arbitration attempting to find their way around a relatively new area of law as it covers the relevant issues comprehensively without getting lost in a degree of detail which will be the next step on the ladder of investment protection.

The authors described their goal as to write a guide which would “enable the investor to appreciate the risks associated with government interference in property rights, to minimize those risks and deal effectively with their consequences. But we also hope to promote understanding within host governments about investors’ expectations and concerns, to allow
them to avoid conflict and maximize the benefits of foreign direct investment for their countries and constituencies.” The authors succeeded and thereby made a valuable contribution to exploring this topic.
–Anne K. Hoffmann, Python & Peter; forthcoming in Arbitration International N° 3, 2007. The full review is here.

“a classical treatise. … It is noteworthy and commendable that–unlike so many other contemporary writers–the authors try to give a neutral and unbiased overview over diverging awards and disputed issues. … It is a timely book. In their introduction, the authors state: ‘we hope to provide the non-specialist lawyer, business person, or government official with the tools necessary to understand the international law of investment and its relationship to political risk’. They have managed to do so, and done even more. First, they successfully combined what would be three separate books (on structuring of investment, international law on investment protection and dispute settlement) in their own right. Second, they provide a coherent and–despite the necessary brevity–in-depth discussion of all relevant issues. Even minor points such as pre-dispute settlement negotiations, or the problem of pre-investment expenditures as investments, are dealt with comprehensively…. In doing so, the authors never become lost in academic debate, but always keep the perspective of the practitioner. These features make the book not only an excellent introduction and comprehensive overview about the state of the law of investment protection, but also a valuable reference tool for anyone experienced in the field. It is to be recommended to anyone who wishes to gain an insight into the topics under discussion or only needs a reference guide to current law and practice. The quality of the analysis ensures that the book will not lose its value even if the law continues to develop. For both academics and practitioners active in investment arbitration, it must be considered indispensable. …. These books [IIPR plus a casebook on foreign investment disputes] are like sea chart maps which allow the reader to navigate on the vast sea of information constituted by papers, awards and court cases during the last 100 years. Even the experienced sailor will and should not leave harbour without such sea charts.”
—Dr. Richard Happ, litigation & arbitration department, Luther Law Firm in Hamburg, Germany (from a 2006 book review, German Arbitration Journal (SchiedsVZ), Issue 5/2006)

“I’ve been reading through your book International Investment, Political Risk and Dispute Resolution. It is a remarkably helpful, well-written, and well-researched work. It is quite scholarly and at the same time a thoroughly practical and useful guide.”
—Alexandre de Gramont, Crowell & Moring LLP

“Oh No – not another book on investment arbitration !” might be one’s first response but, if so, a wrong one; while “I couldn’t put it down” is a time-honoured publisher’s cliché, it genuinely applies to this book. The book is a collaboration between a well-known international arbitration lawyer (Rubins) and the General Counsel (Kinsella) of AOL, the internet services company [sic: Kinsella works for AOI, a laser manufacturer], and therefore avoids the tendency dryness that can infect some over-specialist academic tomes. It is in three parts (i) Assessment and Pre-Investment Management of Political Risk (ii) The International Law Framework of Investment Protection and Political Risk and (iii) Dispute Resolution – these three parts total 442 pages; there are also extensive (300 pages) appendices (see below) and a reasonably-comprehensive index Your reviewer has approached this book wearing two main alternating hats: first, that of an international arbitrator closely involved with the investment arbitration world and, secondly, that of the former Head of Legal and Group Insurance Manager (including Political Risk) of a large oil company. So far as this book is concerned, both hats are very comfortable. Part I is, perhaps for the specialist, sometimes a little too general but this is reflected in the wide range of matters covered, typically in a succinct and clear style so that even in specialist areas your reviewer welcomed the authors’ analysis since, as a minimum, it helps the reader reassess his/her thoughts and priorities; for example, the list of definitions (at page 34ff) of BT/BOT/BLT/BOO/BOOT/BTO is useful clarification. The authors’ analysis (page 53ff) of stabilisation clauses proved most welcomely succinct with a clarity and precision sadly lacking in a recent (and turgid) PhD thesis on this topic for which your reviewer was External Examiner.

Part II changes up a gear and includes some excellent material e.g. a thorough yet succinct section on the nationality of claims (135ff), and an interesting analysis of arbitral decisions (250ff). Part III is, so far as arbitration and dispute resolution are concerned, and quite properly in context, focussed wholly on investment and other international arbitration issues including 56 pages on procedure forming a compact and useful summary. There is also a useful 40-page chapter on conciliation including even a section on Med-Arb. Part III continues in that higher gear with interesting sections on “Preliminary Treaty Concerns” (272ff), “Problem Areas” (297ff) and “Challenge of Awards” (353ff); these were a pleasure to read. Throughout the book, the materials are well-integrated and very much up-to-date as subscribers to OGEMID will recognise (but note that the authors’ preface is dated August 2005 and the book published in 2005) Too many arbitration textbooks reproduce the same materials leading to much unnecessary duplication (the Arbitration Act 1996, ICC Rules, LCIA Rules etc etc appear far too often). This book includes materials I do not otherwise possess including the OPIC Contract of Insurance, the MIGA Contract of Guarantee, even a private insurance contract and the Foreign Sovereign Immunities Act (USA). The Washington Convention (1965), the UNCITRAL Model Law (1985) and the UNCITRAL Rules (1976) reappear as in so many texts. Most of these are easily available on the ICSID and UNCITRAL websites so a single page of URLs would be a more constructive approach. Importantly, there is an extensive and valuable list of book/article sources, such list not being otherwise readily available; you reviewer notes for the record that he discovered he had been cited only after completing this review! The book reads well as regards literary style, generally easy on the eye and not overusing jargon; key issues are generally well-explained and, perhaps, we see the benefits of the collaboration between in-house Counsel and a practising lawyer at the sharp edge of modern developments. In conclusion, this book is valuable in its own right but, at a mere £90, must be considered a bargain.
—Hew R. Dundas, ARBITRATION: The International Journal of Arbitration, Mediation and Dispute Management, the journal of the Chartered Institute of Arbitrators

[See Dundas review here]

“The book is a tour de force. Rubins & Kinsella have written a first-rate study of one of the most vital areas of international law today. Notwithstanding its subtitle (“A Practitioner’s Guide”), scholars as well as practicing attorneys will find this an invaluable guide to understanding the multifaceted adjudicatory regime for cross-border investment disputes.”
—William W. Park, R. Gordon Butler Scholar in International Law and Professor of Law, Boston University School of Law; General Editor, Arbitration International; Counsel to Ropes & Gray; former Vice-President, London Court of International Arbitration; publications include the casebook International Commercial Arbitration; International Chamber of Commerce Arbitration (3rd ed.); International Forum Selection; Income Tax Treaty Arbitration; and Arbitration of International Business Disputes: Studies in Law and Practice.

“This book is comprehensive, well-written, and balanced. An admirable mixture of learned commentary and primary documents, it is portable, authoritative, and up-to-date. It is a distinctive and well-organized addition to exisiting reference works and will be of great value to practioners and academics who seek a dependable, balanced treatment of a range of legal and practical questions affecting foreign direct investment and dispute resolution.”
—Jack J. Coe, Jr., Professor of Law, Pepperdine University School of Law; author, Protecting Against the Expropriation Risk in Investing Aboard (Matthew Bender 1993); International Commercial Arbitration–American Principles and Practice (1997); NAFTA Chapter 11 Reports (with Brower and Dodge); vice-chairman, International Commercial Arbitration Committee, ABA International Law Section.

“This book provides an excellent account of how legal techniques can be used to provide significant protections to foreign investment. Its comprehensive coverage, clarity of expression, and useful appendices will prove invaluable to the busy lawyer. It is one of those rare books that is valuable not only for practice but also for the law classroom.”
—Professor Dan Sarooshi, Professor of Public International Law, University of Oxford; Barrister, London; author of International Organizations And Their Exercise Of Sovereign Powers and The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers

Also excerpted in the coursebook: Foreign Investment Disputes: Cases, Materials and Commentary (Second Edition), Bishop, Crawford, et al. (ed) (Kluwer, 2014) (TOC)

Reviews of Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk (Dobbs Ferry, New York: Oceana Publications, 1997)

• Review/overview by Assad Omer, Transnational Corporations , vol. 10, no. 1 (UNCTAD, April 2001)
• Review by Professor William R. Slomanson, ASIL Newsletter, June 1998
• Review, The Law Book Review (Sandeep Dave, Solicitors) 1/1998
• American Soc. Int’l Law review [American Society of International Law: Reader’s Corner (Issue #16, June 1998)] (“This book provides an in depth analysis of the political risk associated with foreign investment–that the host government may decide to nationalize, or otherwise interfere with, alien property rights. It succinctly identifies the decisional factors including treaties, political risk insurance, sovereign immunity, and arbitration between States and investors. It serves as a useful primer for investors, corporate counsel, and anyone interested in expropriation litigation disputes. … This work also serves as a thought provoking assessment of the clash between capitalism and counter forces including communism, socialism, and related collective conceptions affecting investment in developing countries. One might recall, for example, the evolution of the G-77’s New International Economic Order of the 1970s, designed to affect the global redistribution of wealth. The resulting capital flight of the 1980s triggered the rash of bilateral investment treaties in the 1990s. Part I thus covers International Law and Political Risks; Part II: Pre-Investment Decisions to Reduce Political Risk; Part III: Responses to Manifestations of Political Risk.“)
• T. Wälde review (CEPMLP Internet Journal, vol. 3 (1998) (local copy)
• Book Review, Peter McDermott, International Trade & Bus. L. Ann. v.4
• Wash. U. Law Sch. Research Guide to International Investment Law
• International Law course, Prof. Dr. Ring and Prof. Dr. Wolf, Freiberg University of Mining and Technology