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A dispute must be deemed to arise directly out of an investment even when it is based on a transaction which, standing alone, would not qualify as an investment under the Convention, provided that the particular transaction forms an integral part of an overall operation that qualifies as an investment
A government owned company should not be disqualified as a national of another Contracting State unless it is acting as an agent of the government or is discharging an essentially governmental function
The state’s consent can also be based on other forms of acceptance, provided that the intention to be bound is clear
Consent can be based on an agreement which does not explicitly provide for dispute settlement by ICSID but does make reference to an IIT doing so within the agreement’s applicable law clause. The fact that the treaty is not in force is irrelevant in this respect.
“Investment” can be interpreted broadly; applying the language of the preamble, an international transaction which contributes to cooperation that is designed to promote the economic development of a Contracting State may be deemed to be an investment as that term is understood in the Convention
Whether there is an investment is subject to a two-part test in treaty-based ICSID proceedings
Whether there is an investment is subject to a two-part test in treaty-based ICSID proceedings
The question of whether the parties have expressed their consent is not answered by reference to national law
In particular, the defence of estoppel requires good faith reliance
States can limit the scope of the Centre’s jurisdiction by making a reservation under Article 25 (4) ICSID Convention
The provisions within an IIT concerning its entry into force must be complied with in order to apply the treaty
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Conclusion of Treaties / Entry into Force
- Vienna Convention on the Law of Treaties > Article 28 - Non-retroactivity of treaties
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
Estoppel
In particular, the defence of estoppel requires good faith reliance
Law of Treaties
Conclusion of Treaties / Entry into Force
The provisions within an IIT concerning its entry into force must be complied with in order to apply the treaty
Article 28 - Non-retroactivity of treaties
The provisions within an IIT concerning its entry into force must be complied with in order to apply the treaty
Jurisdiction of the Centre (Articles 25-27)
Article 25
Consent
General Remarks
The question of whether the parties have expressed their consent is not answered by reference to national law
Consent Based on Other Forms of Unilateral Commitment by the State
The state’s consent can also be based on other forms of acceptance, provided that the intention to be bound is clear
Consent Based on an Agreement Making Reference to a Treaty that is not in Force
Consent can be based on an agreement which does not explicitly provide for dispute settlement by ICSID but does make reference to an IIT doing so within the agreement’s applicable law clause. The fact that the treaty is not in force is irrelevant in this respect.
Jurisdiction Ratione Materiae
Investment
General Remarks
“Investment” can be interpreted broadly; applying the language of the preamble, an international transaction which contributes to cooperation that is designed to promote the economic development of a Contracting State may be deemed to be an investment as that term is understood in the Convention
The Parties’ Consent and “Investment” / Two-Part Test of Investment
Whether there is an investment is subject to a two-part test in treaty-based ICSID proceedings
Whether there is an investment is subject to a two-part test in treaty-based ICSID proceedings
Arising Directly out of an Investment
A dispute must be deemed to arise directly out of an investment even when it is based on a transaction which, standing alone, would not qualify as an investment under the Convention, provided that the particular transaction forms an integral part of an overall operation that qualifies as an investment
Jurisdiction Ratione Personae
Juridical Persons
Further Problems
A government owned company should not be disqualified as a national of another Contracting State unless it is acting as an agent of the government or is discharging an essentially governmental function
Article 25 (4) ICSID Convention
States can limit the scope of the Centre’s jurisdiction by making a reservation under Article 25 (4) ICSID Convention