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American Manufacturing v. Zaire

Type of decisionAward
Date of decision21 February 1997
Tribunal
Sompong Sucharitkul (President)
Heribert Golsong
Kéba Mbaye (dissenting)
Legal instrumentBIT between USA and Zaire (1984)
Further information

Statements from this decision

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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
Expropriation and Standards of Protection
Full Protection and Security
Character and Scope
The protection and security standard is not inferior to the minimum standard to vigilance and of care required by international law; the state has to take all measures necessary to ensure the full enjoyment of protection and security of its investment
Compensation for Losses in Times of War, National Emergencies etc. Including Necessity Considerations
Application of a “losses due to war" clause
Preservation of Rights Clauses
Preservation of rights clauses are meant to preserve the treatment which would be more favourable than that resulting from the Treaty. It is not meant to give national laws supremacy over the treaty
Dispute Settlement Clauses
Waiting Clauses / Duty to Attempt Settlement Before Arbitration
Character of Waiting Clauses
Should a treaty require a claimant to undertake efforts of negotiation and consultation
Investment Treaty Arbitration
Admissibility
Admissibility – Examination Ex Officio
Tribunal examining question of admissibility sua sponte
Procedural Questions
Rules of Evidence
Remarks regarding res ipsa loquitur
Damages and Interest
Further Problems
In calculating damages, the special circumstances within the country must be taken into consideration
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
ICSID Convention
Jurisdiction of the Centre (Articles 25-27)
Article 25
Ex Officio Examination of Jurisdiction
Prerequisites of ICSID competence have to be addressed by a tribunal
Consent
Consent Based on an IIT
Consent can be based on the IIT
Jurisdiction Ratione Materiae
Investment
Further Problems
A shareholder can bring a claim on its own behalf and need not bring a claim on behalf of the injured company as indirect investments enjoy special protection
Legal Dispute
A legal dispute is a dispute requiring the application of rules of law and calling for legal solutions
Arbitration (Articles 36-55)
Article 36
Article 36(3) ICSID Convention does not prevent the tribunal from examining its own competence under the ICSID Convention
Article 42
General Remarks
The applicable law in cases of a claim based on an IIT is the treaty itself

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