You are currently viewing the statements in a list. To view them in their context,
click here.
You are currently viewing the statements in their context. To view them in a list, click
here.
An interpretation must give terms a practical effect
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Special Rules of Interpretation
- Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > Further Problems > Special Rules of Interpretation
IITs must be interpreted using the rules of interpretation laid down in the VCLT
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
- Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > Further Problems > Articles 31 et seq. Reflect Customary International Law
Advice and expertise alone do not constitute an investment, even if the IIT explicitly mentions "know-how" among the protected investments
It is generally accepted under international law that a state interference can amount to an expropriation even if the property title remains with the original owner
- International Minimum Standard / The Law of Aliens
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > Expropriation > Indirect Expropriation / Regulations > Further Problems
The requirement of a contribution to economic development is of little value, as it mostly reflects the consequences of the other criteria, i.e. resources, duration and risk
An action by a state organ is attributable to the state under Article 4 ILC Articles; for attribution, it is irrelevant whether the action may be classified as "commercial" or "acta iure gestionis"
An expropriation requires a certain degree of interference with the investment; a substantial deprivation of the investor is necessary
Usually, expropriation requires a lasting interference with property rights
If an IIT requires an investment to be "in connection with the economic activity" in the host state, the location of the project is decisive, not the source of its funding
The Salani test might be useful to exclude overreaching definitions of "investment" in an IIT; in most cases, however, the definition in an IIT should be decisive under Article 25 ICSID Convention
For determining whether an indirect expropriation occurred, it is not relevant whether the claimant could have enforced his or her rights in local courts
If an IIT requires the host state "to promote investments and accord fair and equitable treatment", this does not restrict the application of the fair and equitable treatment-standard to a pre-investment period
The protection by the fair and equitable-treatment standard is not limited to protection from discriminatory measures
The legitimate expectations of the investor can be a relevant factor within the standard of fair and equitable treatment
A claimant may posses a legitimate expectation that the host state will not interfere with his or her contractual relationships
The state must conclude the contract; the state has to be the named party
In assessing whether a measure is contrary to the standard of national treatment, intent is relevant; bad intent alone, however, does not constitute a breach, as long as no adverse effect on the non-national takes place
When considering whether several contracts constitute an investment, a tribunal has to evaluate the complete project, not the individual agreements in isolation
Loans may qualify as an investment
If the respondent asserts that the registration of an investment according to domestic law was improper, the burden of proof is on the respondent
To exclude an investment on the basis of minor errors, like a failure to observe bureaucratic formalities of domestic law, would be inconsistent with the object and purpose of an IIT
Article 42 ICSID Convention is applicable to the merits only
Where domestic law defines the parties' rights and obligations under contracts, a tribunal will decide these questions as questions of facts
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Domestic Law > Applicability of Domestic Law / Renvoi
- International Investment Treaties (IITs) > Contract and Treaty Claims > Distinction of Contract and Treaty Claims
If an IIT requires the dispute to be "in relation to an investment", a tribunal may focus its analysis on the narrower terms of Article 25 ICSID Convention, which require the dispute to arise directly out of an investment
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.
A tribunal has to distinguish between the burden of proof and the standard of proof; a tribunal has to determine the probative force of the evidence
- Investment Treaty Arbitration > Procedural Questions > Burden of Proof
- ICSID Arbitration Rules > Rules 33-38 - Written and Oral Procedures > Rule 34
It is generally accepted under international law that a state interference can amount to an expropriation even if the property title remains with the original owner
International Law Rules Applicable to IITs
Relationship of IITs to Domestic Law
Applicability of Domestic Law / Renvoi
Where domestic law defines the parties' rights and obligations under contracts, a tribunal will decide these questions as questions of facts
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
Law of State Responsibility
Attribution of Acts
Attribution of Acts by Organs / Provinces / Municipalities
An action by a state organ is attributable to the state under Article 4 ILC Articles; for attribution, it is irrelevant whether the action may be classified as "commercial" or "acta iure gestionis"
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
The Concept of "Investment"
General Remarks
Advice and expertise alone do not constitute an investment, even if the IIT explicitly mentions "know-how" among the protected investments
Investment “In the Territory”
If an IIT requires an investment to be "in connection with the economic activity" in the host state, the location of the project is decisive, not the source of its funding
Investment “In Accordance With the Legislation”
If the respondent asserts that the registration of an investment according to domestic law was improper, the burden of proof is on the respondent
To exclude an investment on the basis of minor errors, like a failure to observe bureaucratic formalities of domestic law, would be inconsistent with the object and purpose of an IIT
Expropriation and Standards of Protection
Expropriation
General Requirements of an Expropriatory Act
Degree of Interference
An expropriation requires a certain degree of interference with the investment; a substantial deprivation of the investor is necessary
Duration of Interference
Usually, expropriation requires a lasting interference with property rights
Indirect Expropriation / Regulations
Further Problems
It is generally accepted under international law that a state interference can amount to an expropriation even if the property title remains with the original owner
For determining whether an indirect expropriation occurred, it is not relevant whether the claimant could have enforced his or her rights in local courts
Fair and Equitable Treatment
Character and Scope
If an IIT requires the host state "to promote investments and accord fair and equitable treatment", this does not restrict the application of the fair and equitable treatment-standard to a pre-investment period
The protection by the fair and equitable-treatment standard is not limited to protection from discriminatory measures
Case Groups
Legitimate Expectations
The legitimate expectations of the investor can be a relevant factor within the standard of fair and equitable treatment
A claimant may posses a legitimate expectation that the host state will not interfere with his or her contractual relationships
National Treatment
Distinction Between Local and Foreign Investors
In assessing whether a measure is contrary to the standard of national treatment, intent is relevant; bad intent alone, however, does not constitute a breach, as long as no adverse effect on the non-national takes place
Umbrella Clause
Umbrella Clauses and Questions of Attribution of Contracts
The state must conclude the contract; the state has to be the named party
Dispute Settlement Clauses
Further Problems
If an IIT requires the dispute to be "in relation to an investment", a tribunal may focus its analysis on the narrower terms of Article 25 ICSID Convention, which require the dispute to arise directly out of an investment
Contract and Treaty Claims
Distinction of Contract and Treaty Claims
Where domestic law defines the parties' rights and obligations under contracts, a tribunal will decide these questions as questions of facts
Procedural Questions
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.
A tribunal has to distinguish between the burden of proof and the standard of proof; a tribunal has to determine the probative force of the evidence
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
Jurisdiction of the Centre (Articles 25-27)
Article 25
Jurisdiction Ratione Materiae
Investment
Contracts as Investments
When considering whether several contracts constitute an investment, a tribunal has to evaluate the complete project, not the individual agreements in isolation
Loans may qualify as an investment
"Salini" Criteria
The requirement of a contribution to economic development is of little value, as it mostly reflects the consequences of the other criteria, i.e. resources, duration and risk
The Salani test might be useful to exclude overreaching definitions of "investment" in an IIT; in most cases, however, the definition in an IIT should be decisive under Article 25 ICSID Convention
Arbitration (Articles 36-55)
Article 42
General Remarks
Article 42 ICSID Convention is applicable to the merits only
Rules 33-38 - Written and Oral Procedures
Rule 34
A tribunal has to distinguish between the burden of proof and the standard of proof; a tribunal has to determine the probative force of the evidence