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An IIT without a choice of law-clause does not constitute an agreement on the applicable rules within the meaning of Article 42(1)(1) ICSID Convention
Even if claimants fail to articulate their claim in a precise and consistent way until the substantive hearing, the claim is not made in an untimely fashion and principles of fairness do not require its rejection
An expropriation requires a certain degree of interference with the investment; a substantial deprivation of the investor is necessary
An umbrella clause is breached if a state fails to observe (contractual) commitments; it does not, however, convert the extent or content of such obligations into an issue of international law
Provisions establishing a positive obligation to ensure that any state enterprise acts in accordance with the IIT have to be distinguished from rules concerning the attribution of acts
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of State Responsibility > Attribution of Acts > Attribution of Acts by State Entities
- International Investment Treaties (IITs) > Protection of Investors under IITs > Applicability of IITs > Ratione Personae – Protected Investors > Juridical Persons
A violation of the FET standard requires that the state's actions trespass a certain standard of propriety
An umbrella clause stipulating an obligation for "each party" extents to separate entities only insofar as their conduct can be attributed to the state
A tribunal has to differentiate between questions of jurisdiction and admissibility
A contractual dispute settlement clause should be respected
Res judicata as a principle of general international law
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Other Sources of International Law > Relationship of an IIT to General Principles of International Law > Further Problems
- Investment Treaty Arbitration > Admissibility > Res Judicata / Ne Bis In Idem
Article 61(2) ICSID Convention grants a tribunal a discretionary power to award costs
A university remains an entity that is empowered by state law to exercise governmental authority, even if it is a separate legal entity and has a large degree of autonomy
While different tribunals should seek to act consistently with one another, there is no doctrine of precedent
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 General Principles of International Law
Further Problems
Res judicata as a principle of general international law
Law of State Responsibility
Attribution of Acts
Attribution of Acts by State Entities
Provisions establishing a positive obligation to ensure that any state enterprise acts in accordance with the IIT have to be distinguished from rules concerning the attribution of acts
A university remains an entity that is empowered by state law to exercise governmental authority, even if it is a separate legal entity and has a large degree of autonomy
Protection of Investors under IITs
Applicability of IITs
Ratione Personae – Protected Investors
Juridical Persons
Provisions establishing a positive obligation to ensure that any state enterprise acts in accordance with the IIT have to be distinguished from rules concerning the attribution of acts
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
Fair and Equitable Treatment
Character and Scope
A violation of the FET standard requires that the state's actions trespass a certain standard of propriety
Umbrella Clause
General Remarks
An umbrella clause is breached if a state fails to observe (contractual) commitments; it does not, however, convert the extent or content of such obligations into an issue of international law
Umbrella Clauses and Questions of Attribution of Contracts
An umbrella clause stipulating an obligation for "each party" extents to separate entities only insofar as their conduct can be attributed to the state
Waiver of Rights Under an IIT
A contractual dispute settlement clause should be respected
Distinction Between Jurisdiction and Admissibility
A tribunal has to differentiate between questions of jurisdiction and admissibility
Admissibility
Res Judicata / Ne Bis In Idem
Res judicata as a principle of general international law
Further Problems
Even if claimants fail to articulate their claim in a precise and consistent way until the substantive hearing, the claim is not made in an untimely fashion and principles of fairness do not require its rejection
Arbitration (Articles 36-55)
Article 42
Article 42(1)
Article 42(1)(1) - "rules of law as may be agreed by the parties"
An IIT without a choice of law-clause does not constitute an agreement on the applicable rules within the meaning of Article 42(1)(1) ICSID Convention
Costs of Proceedings (Articles 59-61)
Article 61
Article 61(2) ICSID Convention grants a tribunal a discretionary power to award costs