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A so-called "creeping" or "indirect" expropriation may be found in a series of questionable acts which results in an outright confiscation
In order to avoid any appearance of impropriety and in accordance with Article 48(3) ICSID Convention a tribunal should only comment on arguments which have an impact on the award
- Investment Treaty Arbitration > Decisions
- ICSID Convention > Arbitration (Articles 36-55) > Article 48
In the light of the so-called Urbaser test an investor is required, in order to comply with the exhaustion of local remedies clause, to bring such claims before local courts, which allow for the resolution of the dispute to the same extent as if the claim had been brought to arbitration under the investment treaty; by doing so the investor is not required to assert breach of the investment treaty in the local courts
With respect to the tribunal's obligation to assess expenses, Article 61 (2) ICSID Convention does not make any distinction between awards that do or do not find jurisdiction
Cost allocation might be clearly indicated by the submission of unreasonable arguments, exaggerated claims, obstructionist tactics, abuse of the proceedings or bad faith
Protection of Investors under IITs
Expropriation and Standards of Protection
Expropriation
Indirect Expropriation / Regulations
Determining Whether a Regulation Constitutes an Indirect Expropriation
A so-called "creeping" or "indirect" expropriation may be found in a series of questionable acts which results in an outright confiscation
Dispute Settlement Clauses
Exhaustion of Local Remedies Clauses
In the light of the so-called Urbaser test an investor is required, in order to comply with the exhaustion of local remedies clause, to bring such claims before local courts, which allow for the resolution of the dispute to the same extent as if the claim had been brought to arbitration under the investment treaty; by doing so the investor is not required to assert breach of the investment treaty in the local courts
Decisions
In order to avoid any appearance of impropriety and in accordance with Article 48(3) ICSID Convention a tribunal should only comment on arguments which have an impact on the award
Arbitration (Articles 36-55)
Article 48
In order to avoid any appearance of impropriety and in accordance with Article 48(3) ICSID Convention a tribunal should only comment on arguments which have an impact on the award
Costs of Proceedings (Articles 59-61)
Article 61
With respect to the tribunal's obligation to assess expenses, Article 61 (2) ICSID Convention does not make any distinction between awards that do or do not find jurisdiction
Cost allocation might be clearly indicated by the submission of unreasonable arguments, exaggerated claims, obstructionist tactics, abuse of the proceedings or bad faith