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AAPL v. Sri Lanka

Type of decisionAward
Date of decision27 June 1990
Tribunal
Ahmed Sadek El-Kosheri (President)
Berthold Goldman
Samuel K.B. Asante (dissenting)
Legal instrumentBIT between Sri Lanka and United Kingdom (1980)
Further information

Statements from this decision

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International Investment Treaties (IITs)
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
Relationship of an IIT to Customary International Law
IITs must be understood in the light of implicitly or explicitly applicable supplementary rules of an international law character or of domestic law nature
Law of Treaties
Rules of Interpretation
Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
IITs must be interpreted using the rules of interpretation laid down in the VCLT
Special Rules of Interpretation
An interpretation must give terms a practical effect
Protection of Investors under IITs
Character of IITs
An IIT is not a self-contained closed legal system
Expropriation and Standards of Protection
Full Protection and Security
Customary International Law Standard of Protection and Security
General remarks regarding the standard of protection and security in customary international law
Character and Scope
The full protection and security standard is not a strict liability standard
Compensation for Losses in Times of War, National Emergencies etc. Including Necessity Considerations
Application of a “losses due to war" clause
Dispute Settlement Clauses
Waiting Clauses / Duty to Attempt Settlement Before Arbitration
Character of Waiting Clauses
It suffices that a claim remains outstanding for the time required by the IIT
Investment Treaty Arbitration
Procedural Questions
Rules of Evidence
A tribunal must be convinced of the truth of the evidence submitted. It may freely evaluate the evidence.
Burden of Proof
The burden of proof rests upon the party alleging the fact. Where there is a prima facie evidence the burden of proof shifts to the other side. A prima facie evidence may be sufficient in cases where it is extremely difficult to prove certain facts.
Damages and Interest
Interest
Interest Absent Explicit Rules
Interest can be awarded at a reasonable rate
Date From Which Interest Should be Granted
Interest is an integral part of the compensation and should run from the date when the international responsibility becomes engaged
Further Problems
Assessment of damages owed to indirect investors where no stock market price for shares is available
Vienna Convention on the Law of Treaties
Article 31 - General rule of interpretation
Further Problems
Articles 31 et seq. Reflect Customary International Law
IITs must be interpreted using the rules of interpretation laid down in the VCLT
Special Rules of Interpretation
An interpretation must give terms a practical effect
ICSID Convention
Arbitration (Articles 36-55)
Article 42
Article 42(1)
Article 42(1)(1) - "rules of law as may be agreed by the parties"
A choice of law by the parties can be constructed from their conduct throughout the proceedings

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