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The requirement that the parties be heard does not preclude the tribunal from setting reasonable limits on the timing and scale of the submissions, as long as the tribunal treats the parties equally
"In dubio pro reo" is not applicable in an investor-state-arbitration
- Investment Treaty Arbitration > Procedural Questions > Rules of Evidence
- ICSID Convention > Arbitration (Articles 36-55) > Article 52 > Grounds for Annulment > Serious Departure From a Rule of Procedure
The requirement that the parties be heard is a fundamental rule of procedure
The right to be heard includes the right to make submissions on evidence presented by the opponent
A party forfeits its right to seek annulment under Article 52(1)(d) ICSID Convention if it fails to raise its objection to the tribunal's procedure upon becoming aware of it
- ICSID Convention > Arbitration (Articles 36-55) > Article 52 > Grounds for Annulment > Serious Departure From a Rule of Procedure
- ICSID Arbitration Rules > Rule 27
When examining whether an investment was in accordance with domestic law, a tribunal should give particular consideration to municipal decisions
- International Investment Treaties (IITs) > Protection of Investors under IITs > Applicability of IITs > Ratione Materiae – Definition of Investment > Investment “In Accordance With the Legislation”
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Domestic Law > Applicability of Domestic Law / Renvoi
The annulment ground of "failure to state reasons" relates to the obligations of the tribunal expressed in Article 48(3) ICSID Convention; stating the reasons legitimizes the tribunal's decision and prevents arbitrary decisions
When examining whether a tribunal committed a manifest excess of power by not exercising its jurisdiction, an annulment committee will intervene only where the tribunal's decision was unreasonable
An ICSID tribunal commits an excess of powers not only if it exercises a jurisdiction which it does not have, but also if it fails to exercise a jurisdiction which it possesses
IITs must be interpreted using the rules of interpretation laid down in the VCLT
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
- Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > Further Problems > Articles 31 et seq. Reflect Customary International Law
An annulment committee has to consider the original award in light of the evidence, submissions and record available to the original tribunal, and not on the basis of new materials
A tribunal manifestly excesses its powers if it does not apply the relevant rules of interpretation governing its competence properly
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Further Problems
- Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > General Remarks
- ICSID Convention > Arbitration (Articles 36-55) > Article 52 > Grounds for Annulment > Manifest Excess of Power
Object and purpose of the power to annul an award for a serious departure from a fundamental rule of procedure is to control the integrity of the arbitral procedure
When determining its jurisdiction, a tribunal should consider and analyse the factual records only to the extent necessary to make a decision regarding its jurisdiction
- International Investment Treaties (IITs) > Protection of Investors under IITs > Applicability of IITs > General Remarks
- Investment Treaty Arbitration > Jurisdiction > The Tribunal's Rights and Duties
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > General Remarks
It is not for an annulment committee to decide whether an interpretation by the original tribunal is correct as long as the interpretation in question is a tenable one
An instrument of ratification expresses a state's consent to be bound by a treaty; although it allows the treaty to enter into force, this effect provides no basis for attaching a particular importance to the instrument of ratification and the instrument does not modify the legal effect of 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 14 - Consent to be bound by a treaty expressed by ratification, acceptance or approval
"Fundamental rule of procedure" refers to procedural rules constituting general principles of international arbitral procedure
"Nullum crimen sine lege" is not a rule of procedure, but a determination of the scope of the substantive law
Article 52 ICSID Convention was inspired by Article 35 of the Model Rules on Arbitral Procedure
International Law Rules Applicable to IITs
Relationship of IITs to Domestic Law
Applicability of Domestic Law / Renvoi
When examining whether an investment was in accordance with domestic law, a tribunal should give particular consideration to municipal decisions
Law of Treaties
Conclusion of Treaties / Entry into Force
An instrument of ratification expresses a state's consent to be bound by a treaty; although it allows the treaty to enter into force, this effect provides no basis for attaching a particular importance to the instrument of ratification and the instrument does not modify the legal effect of the treaty
Rules of Interpretation
Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
IITs must be interpreted using the rules of interpretation laid down in the VCLT
Further Problems
A tribunal manifestly excesses its powers if it does not apply the relevant rules of interpretation governing its competence properly
Protection of Investors under IITs
Applicability of IITs
General Remarks
When determining its jurisdiction, a tribunal should consider and analyse the factual records only to the extent necessary to make a decision regarding its jurisdiction
Ratione Materiae – Definition of Investment
Investment “In Accordance With the Legislation”
When examining whether an investment was in accordance with domestic law, a tribunal should give particular consideration to municipal decisions
Jurisdiction
The Tribunal's Rights and Duties
When determining its jurisdiction, a tribunal should consider and analyse the factual records only to the extent necessary to make a decision regarding its jurisdiction
Procedural Questions
Rules of Evidence
"In dubio pro reo" is not applicable in an investor-state-arbitration
The right to be heard includes the right to make submissions on evidence presented by the opponent
Article 14 - Consent to be bound by a treaty expressed by ratification, acceptance or approval
An instrument of ratification expresses a state's consent to be bound by a treaty; although it allows the treaty to enter into force, this effect provides no basis for attaching a particular importance to the instrument of ratification and the instrument does not modify the legal effect of the treaty
Article 31 - General rule of interpretation
General Remarks
A tribunal manifestly excesses its powers if it does not apply the relevant rules of interpretation governing its competence properly
Further Problems
Articles 31 et seq. Reflect Customary International Law
IITs must be interpreted using the rules of interpretation laid down in the VCLT
Jurisdiction of the Centre (Articles 25-27)
Article 25
General Remarks
When determining its jurisdiction, a tribunal should consider and analyse the factual records only to the extent necessary to make a decision regarding its jurisdiction
Arbitration (Articles 36-55)
Article 52
General Remarks
An annulment committee has to consider the original award in light of the evidence, submissions and record available to the original tribunal, and not on the basis of new materials
Grounds for Annulment
Manifest Excess of Power
When examining whether a tribunal committed a manifest excess of power by not exercising its jurisdiction, an annulment committee will intervene only where the tribunal's decision was unreasonable
An ICSID tribunal commits an excess of powers not only if it exercises a jurisdiction which it does not have, but also if it fails to exercise a jurisdiction which it possesses
A tribunal manifestly excesses its powers if it does not apply the relevant rules of interpretation governing its competence properly
It is not for an annulment committee to decide whether an interpretation by the original tribunal is correct as long as the interpretation in question is a tenable one
Article 52 ICSID Convention was inspired by Article 35 of the Model Rules on Arbitral Procedure
Serious Departure From a Rule of Procedure
The requirement that the parties be heard does not preclude the tribunal from setting reasonable limits on the timing and scale of the submissions, as long as the tribunal treats the parties equally
"In dubio pro reo" is not applicable in an investor-state-arbitration
The requirement that the parties be heard is a fundamental rule of procedure
A party forfeits its right to seek annulment under Article 52(1)(d) ICSID Convention if it fails to raise its objection to the tribunal's procedure upon becoming aware of it
Object and purpose of the power to annul an award for a serious departure from a fundamental rule of procedure is to control the integrity of the arbitral procedure
"Fundamental rule of procedure" refers to procedural rules constituting general principles of international arbitral procedure
"Nullum crimen sine lege" is not a rule of procedure, but a determination of the scope of the substantive law
Failure to State Reasons
The annulment ground of "failure to state reasons" relates to the obligations of the tribunal expressed in Article 48(3) ICSID Convention; stating the reasons legitimizes the tribunal's decision and prevents arbitrary decisions
Rule 27
A party forfeits its right to seek annulment under Article 52(1)(d) ICSID Convention if it fails to raise its objection to the tribunal's procedure upon becoming aware of it