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Joseph Charles Lemire v. Ukraine

Type of decisionDecision on Jurisdiction and Liability
Date of decision14 January 2010
Tribunal
Juan Fernández-Armesto (President)
Jan Paulsson
Jürgen Voss (dissenting)
Legal instrumentBIT between Ukraine and USA (1996)
Related decision(s)
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Statements from this decision

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Interpretation of the ICSID Convention should seek compatibility with a parallel IIT
IITs must be interpreted using the rules of interpretation laid down in the VCLT
General remarks regarding the relationship of FET to Public International Law
The FET interpretation by the NAFTA FTC does not necessarily apply to other IITs of the USA
A violation of the FET standard requires that the state's actions trespass a certain standard of propriety
Mere statistic showing that an investor was less successful than his or her competitors are insufficient to prove a breach of the FET standard; however, as they provide an overview of the development of facts, they are not irrelevant either
If the IIT does not provide otherwise, an investor does not have to exhaust local remedies to claim a violation of the FET standard
General remarks on fair and equitable treatment
It is impossible to determine an "ordinary meaning" of the expression "fair and equitable"
The “minimum standard” is a floor below which treatment of foreign investors must not fall
Interpretation of the FET standard must be made in light of the high measure of deference that international law generally extends to the right of domestic authorities to regulate matters within their own borders
While the main purpose of an IIT is the stimulation of foreign investment, this purpose should serve the development of the domestic economy; thus, the right of the host state to act for the public interest has to be given due consideration
The relevance of legitimate expectations follows from an interpretation of the FET standard in light of the context of the IIT
Even if limited sector exceptions exist in an IIT, an investor in a regulated industry can legitimately expect consistent, transparent, fair and reasonable decisions enforced without arbitrariness or discrimination
General remarks regarding discrimination
Definition of arbitrary
Imposition of a 50% national music requirement does not necessarily constitute a prohibited performance requirement that goods or services must be purchased locally
IITs must be interpreted using the rules of interpretation laid down in the VCLT
A reference to the Additional Facility in an arbitration agreement implies a reference to the ICSID Convention, once the latter is available
Interpretation of the ICSID Convention should seek compatibility with a parallel IIT
Requirements imposed by Article 25 ICSID Convention
Arbitration clauses must be interpreted to restore the true intention of the parties
A reference to the Additional Facility in an arbitration agreement implies a reference to the ICSID Convention, once the latter is available
No foreign origin requirement is imposed by Article 25 ICSID-Convention
Whether a dispute concerning the issuance of a license arises directly out of an investment depends on whether the claimant requests additional licenses for an existing investment or enters the market for the first time

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