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ATA v. Jordan

Type of decisionAward
Date of decision18 May 2010
Tribunal
Yves Fortier (President)
Ahmed Sadek El-Kosheri
Michael Reisman
Legal instrumentBIT between Jordan and Turkey (1993)
Related decision(s)Decision on Interpretation and on the request for provisional measures, 7 March 2011
Further information

Statements from this decision

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International Minimum Standard / The Law of Aliens
A requirement of exhaustion of local remedies applies to claims for denial of justice in customary international law
International Investment Treaties (IITs)
International Law Rules Applicable to IITs
Relationship of IITs to Domestic Law
Supremacy of Public International Law
A state cannot rely on its national legislation to justify a breach of an international obligation
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
The Concept of "Investment"
General Remarks
An investment is not a single right, but a bundle of rights; therefore a state measure concerning one investment can violate different IIT standards
Arbitral Awards and Right to Arbitration
A right to arbitration constitutes an investment
Ratione Temporis – Application in Time
A denial of justice requires that the final judicial instance has rendered its decision; however, if the denial of justice is related to a dispute which arose before the IIT's entry into force, the fact that the denial of justice occurred after the entry into force is not sufficient to constitute jurisdiction ratione temporis
An IIT cannot be applied retroactively unless such an intention of the parties can be established
A tribunal has to distinguish between the applicability ratione temporis of substantive obligations in an IIT on the one hand and jurisdiction ratione temporis on the other hand
For the purpose of examining whether a dispute has arisen after the IIT entered into force, a dispute can be defined as a disagreement on a point of law or fact, a conflict of legal views or of interests
For the purpose of examining whether a dispute has arisen after the IIT entered into force, two disputes are legally equivalent if they share the same subject-matter and the same origin or source
State Conduct as a ‘Measure’ Violating the Treaty
An investment is not a single right, but a bundle of rights; therefore a state measure concerning one investment can violate different IIT standards
Expropriation and Standards of Protection
Fair and Equitable Treatment
Case Groups
Denial of Justice
A denial of justice requires that the final judicial instance has rendered its decision; however, if the denial of justice is related to a dispute which arose before the IIT's entry into force, the fact that the denial of justice occurred after the entry into force is not sufficient to constitute jurisdiction ratione temporis
Further Cases
Retroactively depriving an investor of the right to arbitration contained in an investor-state-contract violates the FET standard
Investment Treaty Arbitration
Damages and Interest
Forms of Damages
According to the principle derived from the Chorzów Factory case, reparation should eliminate the consequences of the illegal act and re-establish the situation which would have existed if that act had not been committed
Vienna Convention on the Law of Treaties
Article 27 - Internal law and observance of treaties
A state cannot rely on its national legislation to justify a breach of an international obligation
Article 28 - Non-retroactivity of treaties
A denial of justice requires that the final judicial instance has rendered its decision; however, if the denial of justice is related to a dispute which arose before the IIT's entry into force, the fact that the denial of justice occurred after the entry into force is not sufficient to constitute jurisdiction ratione temporis
An IIT cannot be applied retroactively unless such an intention of the parties can be established
A tribunal has to distinguish between the applicability ratione temporis of substantive obligations in an IIT on the one hand and jurisdiction ratione temporis on the other hand
For the purpose of examining whether a dispute has arisen after the IIT entered into force, a dispute can be defined as a disagreement on a point of law or fact, a conflict of legal views or of interests
For the purpose of examining whether a dispute has arisen after the IIT entered into force, two disputes are legally equivalent if they share the same subject-matter and the same origin or source
ICSID Convention
Jurisdiction of the Centre (Articles 25-27)
Article 25
Jurisdiction Ratione Materiae
Investment
The Parties’ Consent and “Investment” / Two-Part Test of Investment
Under Article 25 ICSID Convention, the investment definition in the IIT which sets the bounds of the tribunal is decisive

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