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Municipal law may be relevant to the merits, but only as a factual circumstance, not as the governing law
The IIT definition of investment is not a self-standing concept, but refers to a more general concept provided by international law; it is common ground that to be qualified as an investment, a contract must prompt a capital contribution over a significant duration with a shared risk
- 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 > Applicability of IITs > Ratione Materiae – Definition of Investment > The Concept of "Investment" > General Remarks
If no part of a claim has been successful, a tribunal may use its discretion under Article 40 UNCITRAL Rules to order the claimant to reimburse the respondent all of its costs ("costs follow the event")
- Investment Treaty Arbitration > Costs > General Remarks
- UNCITRAL Arbitration Rules 1976 > Article 40
At the jurisdictional stage, a tribunal must establish whether the facts alleged by the claimant, if established, are capable of coming within those provisions of the IIT which the claimant has invoked
To qualify as an investment, a contract has to meet certain minimum requirements, such as duration, contribution and risk
The mere incorporation is insufficient to meet a "seat" requirement in an IIT; the investor has to prove additional elements
The rationale of a waiting clause is to give a state the opportunity to discuss the matter with the other party; as long as the state was given this opportunity, the requirement of the waiting clause is satisfied, even if the investor did not employ the most perfect form when notifying the state
If the IIT requires the investor to prove real economic activities, the investor must substantiate its standing, e.g. by descriptive lists of contracts or witness statements by clients, banks or public officers
In IIT proceedings the rules of international law cannot be disregarded
An IIT's preamble is relevant for its interpretation
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Interpretation in the Context of the Treaty
- Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > Context > General Remarks
The notion of investor and investment are exclusively governed by international law
If an IIT imposes a requirement of having a seat and real economic activity in the host state, this requirement has the purpose of excluding "mailbox" or "paper" companies from IIT protection
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
Relationship of an IIT to Customary International Law
The IIT definition of investment is not a self-standing concept, but refers to a more general concept provided by international law; it is common ground that to be qualified as an investment, a contract must prompt a capital contribution over a significant duration with a shared risk
Law of Treaties
Rules of Interpretation
Interpretation in the Context of the Treaty
An IIT's preamble is relevant for its interpretation
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
The Concept of "Investment"
General Remarks
The IIT definition of investment is not a self-standing concept, but refers to a more general concept provided by international law; it is common ground that to be qualified as an investment, a contract must prompt a capital contribution over a significant duration with a shared risk
Contracts
To qualify as an investment, a contract has to meet certain minimum requirements, such as duration, contribution and risk
Ratione Personae – Protected Investors
Juridical Persons
The mere incorporation is insufficient to meet a "seat" requirement in an IIT; the investor has to prove additional elements
If the IIT requires the investor to prove real economic activities, the investor must substantiate its standing, e.g. by descriptive lists of contracts or witness statements by clients, banks or public officers
If an IIT imposes a requirement of having a seat and real economic activity in the host state, this requirement has the purpose of excluding "mailbox" or "paper" companies from IIT protection
Dispute Settlement Clauses
Waiting Clauses / Duty to Attempt Settlement Before Arbitration
Character of Waiting Clauses
The rationale of a waiting clause is to give a state the opportunity to discuss the matter with the other party; as long as the state was given this opportunity, the requirement of the waiting clause is satisfied, even if the investor did not employ the most perfect form when notifying the state
Applicable Law / Choice of Law Clauses
Municipal law may be relevant to the merits, but only as a factual circumstance, not as the governing law
In IIT proceedings the rules of international law cannot be disregarded
The notion of investor and investment are exclusively governed by international law
Admissibility
Prima Facie Case
At the jurisdictional stage, a tribunal must establish whether the facts alleged by the claimant, if established, are capable of coming within those provisions of the IIT which the claimant has invoked
Costs
General Remarks
If no part of a claim has been successful, a tribunal may use its discretion under Article 40 UNCITRAL Rules to order the claimant to reimburse the respondent all of its costs ("costs follow the event")
Article 31 - General rule of interpretation
Context
General Remarks
An IIT's preamble is relevant for its interpretation
Article 40
If no part of a claim has been successful, a tribunal may use its discretion under Article 40 UNCITRAL Rules to order the claimant to reimburse the respondent all of its costs ("costs follow the event")