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The exhaustion of local remedies as a condition to a state’s consent to arbitration can be required within an IIT
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
Application in time of IITs including specific rules regarding disputes or claims which have arisen before its entry into force
- International Investment Treaties (IITs) > Protection of Investors under IITs > Applicability of IITs > Ratione Temporis – Application in Time
- Vienna Convention on the Law of Treaties > Article 28 - Non-retroactivity of treaties
The Contracting State is the correct defendant even where the violations were committed by a state entity
At the jurisdiction phase, a shareholder must prove that he or she is a protected investor who has made an investment; whether he or she can bring the claims in his or her personal capacity will be considered at the merits stage
Based on a functional/structural test, the actions of private juridical persons can in principle be attributed to a state
At the jurisdictional phase, it may be sufficient to establish a prima facie case concerning aspects of the tribunal’s jurisdiction
A clause requiring redress to be sought before local courts for a period of 18 month must be observed
An MFN clause embraces dispute settlement provisions and is in particular applicable to override clauses requiring redress being sought before local courts for a certain period of time
International Law Rules Applicable to IITs
Law of State Responsibility
Attribution of Acts
Attribution of Acts by State Entities
Based on a functional/structural test, the actions of private juridical persons can in principle be attributed to a state
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
The Concept of "Investment"
Shares
At the jurisdiction phase, a shareholder must prove that he or she is a protected investor who has made an investment; whether he or she can bring the claims in his or her personal capacity will be considered at the merits stage
Ratione Temporis – Application in Time
Application in time of IITs including specific rules regarding disputes or claims which have arisen before its entry into force
Expropriation and Standards of Protection
Most-Favoured-Nation Treatment (MFN)
Application to dispute settlement clauses
An MFN clause embraces dispute settlement provisions and is in particular applicable to override clauses requiring redress being sought before local courts for a certain period of time
Dispute Settlement Clauses
Exhaustion of Local Remedies Clauses
A clause requiring redress to be sought before local courts for a period of 18 month must be observed
Admissibility
Prima Facie Case
At the jurisdictional phase, it may be sufficient to establish a prima facie case concerning aspects of the tribunal’s jurisdiction
Article 28 - Non-retroactivity of treaties
Application in time of IITs including specific rules regarding disputes or claims which have arisen before its entry into force
Jurisdiction of the Centre (Articles 25-27)
Article 25
Jurisdiction Ratione Materiae
Legal Dispute
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
Jurisdiction Ratione Personae
Party Status of the Contracting State, Subdivisions or Agencies
The Contracting State is the correct defendant even where the violations were committed by a state entity
Article 26
The exhaustion of local remedies as a condition to a state’s consent to arbitration can be required within an IIT