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The terms used in Article 25 ICSID Convention should not be interpreted restrictively
Although a tribunal does not have jurisdiction over measures of general state policy, it has jurisdiction to examine specific measures of that policy if they have a direct bearing on the investment
Ongoing negotiations between the parties do not deprive a tribunal of jurisdiction
A tribunal may apply a rule of customary international law that it deems compatible with the IIT and the ICSID Convention
- 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
- International Investment Treaties (IITs) > Protection of Investors under IITs > Applicable Law / Choice of Law Clauses
- ICSID Convention > Arbitration (Articles 36-55) > Article 42 > Article 42(1) > Article 42(1)(2) - "absence of such agreement"
A claimant does not need to exhaust local remedies, if the IIT does not provide otherwise
- International Investment Treaties (IITs) > Protection of Investors under IITs > Dispute Settlement Clauses > Exhaustion of Local Remedies Clauses
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 26
The "directness" requirement of Article 1101 NAFTA deals with the way in which a measure affected an investor or an investment; on the other hand, Article 25 ICSID Convention concerns the relationship between the dispute and the investment
- North American Free Trade Agreement > Chapter Eleven – Section A – Investment > Article 1101 – Scope and Coverage > “Measures” Within the Meaning of Article 1101 NAFTA
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Jurisdiction Ratione Materiae > Arising Directly out of an Investment
Article 42 ICSID Convention does not govern the nationality of the investor
- Investment Treaty Arbitration > Correct Claimant
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Jurisdiction Ratione Personae > Further Problems
- ICSID Convention > Arbitration (Articles 36-55) > Article 42 > General Remarks
An exclusive forum selection clause in a contract cannot be compared to "Calvo clauses"
A tribunal has to distinguish between the international and national legal order
Consent can be based on the IIT
An exclusive choice of forum clause in a contract cannot bar a tribunal from examining treaty based claims
While different tribunals should seek to act consistently with one another, there is no doctrine of precedent
Treaty obligations prevail over rules of customary international law, as long as the latter do not have peremptory character
A dispute is a disagreement on a point of law or fact, a conflict of legal views or interest between parties; it must relate to clearly identified issues between the parties
In ICSID arbitration, a tribunal has to be convinced prima facie that the claimant's interest has been hurt
- Investment Treaty Arbitration > Admissibility > Prima Facie Case
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Jurisdiction Ratione Materiae > Investment > Further Problems
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
System of Precedents
While different tribunals should seek to act consistently with one another, there is no doctrine of precedent
Relationship of an IIT to Customary International Law
A tribunal may apply a rule of customary international law that it deems compatible with the IIT and the ICSID Convention
Treaty obligations prevail over rules of customary international law, as long as the latter do not have peremptory character
Protection of Investors under IITs
Dispute Settlement Clauses
Exhaustion of Local Remedies Clauses
A claimant does not need to exhaust local remedies, if the IIT does not provide otherwise
Applicable Law / Choice of Law Clauses
A tribunal may apply a rule of customary international law that it deems compatible with the IIT and the ICSID Convention
Waiver of Rights Under an IIT
An exclusive forum selection clause in a contract cannot be compared to "Calvo clauses"
An exclusive choice of forum clause in a contract cannot bar a tribunal from examining treaty based claims
Contract and Treaty Claims
Distinction of Contract and Treaty Claims
A tribunal has to distinguish between the international and national legal order
Admissibility
Prima Facie Case
In ICSID arbitration, a tribunal has to be convinced prima facie that the claimant's interest has been hurt
Further Problems
Ongoing negotiations between the parties do not deprive a tribunal of jurisdiction
Correct Claimant
Article 42 ICSID Convention does not govern the nationality of the investor
Chapter Eleven – Section A – Investment
Article 1101 – Scope and Coverage
“Measures” Within the Meaning of Article 1101 NAFTA
The "directness" requirement of Article 1101 NAFTA deals with the way in which a measure affected an investor or an investment; on the other hand, Article 25 ICSID Convention concerns the relationship between the dispute and the investment
Jurisdiction of the Centre (Articles 25-27)
Article 25
General Remarks
The terms used in Article 25 ICSID Convention should not be interpreted restrictively
Consent
Consent Based on an IIT
Consent can be based on the IIT
Jurisdiction Ratione Materiae
Investment
Further Problems
In ICSID arbitration, a tribunal has to be convinced prima facie that the claimant's interest has been hurt
Legal Dispute
A dispute is a disagreement on a point of law or fact, a conflict of legal views or interest between parties; it must relate to clearly identified issues between the parties
Arising Directly out of an Investment
Although a tribunal does not have jurisdiction over measures of general state policy, it has jurisdiction to examine specific measures of that policy if they have a direct bearing on the investment
The "directness" requirement of Article 1101 NAFTA deals with the way in which a measure affected an investor or an investment; on the other hand, Article 25 ICSID Convention concerns the relationship between the dispute and the investment
Jurisdiction Ratione Personae
Further Problems
Article 42 ICSID Convention does not govern the nationality of the investor
Article 26
A claimant does not need to exhaust local remedies, if the IIT does not provide otherwise
Arbitration (Articles 36-55)
Article 42
General Remarks
Article 42 ICSID Convention does not govern the nationality of the investor
Article 42(1)
Article 42(1)(2) - "absence of such agreement"
A tribunal may apply a rule of customary international law that it deems compatible with the IIT and the ICSID Convention