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The nature of a dispute must be determined on objective grounds
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
Terms should not be interpreted broadly or narrowly, but according to their plain meaning
It is necessary to distinguish the state as a merchant from the state as a sovereign; thus, the umbrella clause in the US-Argentina BIT does not cover breaches of commercial contracts, but additional investment protections contractually agreed by the state as a sovereign
A dispute is a disagreement on a point of law or fact, a conflict of legal views or interest between parties; it must relate to clearly identified issues between the parties
A dispute of contractual nature can still qualify as a legal dispute within the meaning of Article 25 ICSID Convention
Although a tribunal does not have jurisdiction over measures of general state policy, it has jurisdiction to examine specific measures of that policy if they have a direct bearing on the investment
There is no rule of continuous ownership of the investment, i.e. for ICSID jurisdiction it does not matter whether the investment belongs to the investor over the course of the proceedings
A state's consent to arbitration is expressed in the IIT
- Investment Treaty Arbitration > Jurisdiction > Consent by the Parties
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Consent > Consent Based on an IIT
A legal dispute is a dispute requiring the application of rules of law and calling for legal solutions
Decisions of other tribunals are not sources of law and are not legally binding upon another tribunal
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
System of Precedents
Decisions of other tribunals are not sources of law and are not legally binding upon another tribunal
Law of Treaties
Rules of Interpretation
Special Rules of Interpretation
Terms should not be interpreted broadly or narrowly, but according to their plain meaning
Protection of Investors under IITs
Expropriation and Standards of Protection
Umbrella Clause
General Remarks
It is necessary to distinguish the state as a merchant from the state as a sovereign; thus, the umbrella clause in the US-Argentina BIT does not cover breaches of commercial contracts, but additional investment protections contractually agreed by the state as a sovereign
Jurisdiction
Consent by the Parties
A state's consent to arbitration is expressed in the IIT
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
Jurisdiction of the Centre (Articles 25-27)
Article 25
Consent
Consent Based on an IIT
A state's consent to arbitration is expressed in the IIT
Jurisdiction Ratione Materiae
Investment
Further Problems
There is no rule of continuous ownership of the investment, i.e. for ICSID jurisdiction it does not matter whether the investment belongs to the investor over the course of the proceedings
Legal Dispute
The nature of a dispute must be determined on objective grounds
A dispute is a disagreement on a point of law or fact, a conflict of legal views or interest between parties; it must relate to clearly identified issues between the parties
A dispute of contractual nature can still qualify as a legal dispute within the meaning of Article 25 ICSID Convention
A legal dispute is a dispute requiring the application of rules of law and calling for legal solutions
Arising Directly out of an Investment
Although a tribunal does not have jurisdiction over measures of general state policy, it has jurisdiction to examine specific measures of that policy if they have a direct bearing on the investment