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Res judicata prohibits a party from reintroducing a new action that is similar regarding the parties, the claims and the factual/legal bases
A tribunal has a broad discretion regarding the allocation of costs and expenses
The outcome of the proceedings is the first factor a tribunal can and must take into account when allocating costs and expenses
Distinction between violation of a contract and a treaty
The "investment" definitions in IITs and Article 25 ICSID Convention are complementary
Investments imply contributions, a certain duration of performance of the contract, participation in the risk of transaction, and contribution to economic development (so called Salini Test)
Tribunals have to decide whether to address an alleged breach of good faith by the claimant at the jurisdictional stage or the merits
A tribunal must rule on all conditions concerning its jurisdiction
- Investment Treaty Arbitration > Jurisdiction > The Tribunal's Rights and Duties
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Ex Officio Examination of Jurisdiction
- ICSID Convention > Arbitration (Articles 36-55) > Article 41
A claimant cannot invoke a breach of contract as a treaty claim based on an umbrella clause while at the same time seeking enforcement of a commercial award, which deemed the same contract null and void
Only defects related to the consent to arbitrate deprive a tribunal of jurisdiction
- Investment Treaty Arbitration > Jurisdiction > Consent by the Parties
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Consent > General Remarks
In case a state rejects settling contractual disputes by commercial arbitration, a breach of contract can constitute an alleged breach of an umbrella clause even if there is exclusive jurisdiction of commercial arbitration for contractual disputes
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > Umbrella Clause > General Remarks
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Further Problems
Whether there is an investment is subject to a two-part test in treaty-based ICSID proceedings
Costs incurred during negotiation do not constitute an investment; after the contract is concluded, this commitment constitutes an investment even according to the "Salini" criteria
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Jurisdiction Ratione Materiae > Investment > Contracts as Investments
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Jurisdiction Ratione Materiae > Investment > "Salini" Criteria
Good faith is a fundamental principle of international law and the law of investments
An allegation of expropriation already implies an unfair and inequitable treatment; thus, an additional allegation of breach of fair and equitable treatment has to be based on another state measure
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > Fair and Equitable Treatment > Character and Scope
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > Relationship of Standards of Protection Within a Single IIT
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
Good Faith
Good faith is a fundamental principle of international law and the law of investments
Protection of Investors under IITs
Expropriation and Standards of Protection
Fair and Equitable Treatment
Character and Scope
An allegation of expropriation already implies an unfair and inequitable treatment; thus, an additional allegation of breach of fair and equitable treatment has to be based on another state measure
Umbrella Clause
General Remarks
A claimant cannot invoke a breach of contract as a treaty claim based on an umbrella clause while at the same time seeking enforcement of a commercial award, which deemed the same contract null and void
In case a state rejects settling contractual disputes by commercial arbitration, a breach of contract can constitute an alleged breach of an umbrella clause even if there is exclusive jurisdiction of commercial arbitration for contractual disputes
Relationship of Standards of Protection Within a Single IIT
An allegation of expropriation already implies an unfair and inequitable treatment; thus, an additional allegation of breach of fair and equitable treatment has to be based on another state measure
Contract and Treaty Claims
Distinction of Contract and Treaty Claims
Distinction between violation of a contract and a treaty
Jurisdiction
Consent by the Parties
Only defects related to the consent to arbitrate deprive a tribunal of jurisdiction
The Tribunal's Rights and Duties
A tribunal must rule on all conditions concerning its jurisdiction
Admissibility
Res Judicata / Ne Bis In Idem
Res judicata prohibits a party from reintroducing a new action that is similar regarding the parties, the claims and the factual/legal bases
Costs
General Remarks
A tribunal has a broad discretion regarding the allocation of costs and expenses
The outcome of the proceedings is the first factor a tribunal can and must take into account when allocating costs and expenses
Jurisdiction of the Centre (Articles 25-27)
Article 25
Ex Officio Examination of Jurisdiction
A tribunal must rule on all conditions concerning its jurisdiction
Consent
General Remarks
Only defects related to the consent to arbitrate deprive a tribunal of jurisdiction
Jurisdiction Ratione Materiae
Investment
The Parties’ Consent and “Investment” / Two-Part Test of Investment
The "investment" definitions in IITs and Article 25 ICSID Convention are complementary
Whether there is an investment is subject to a two-part test in treaty-based ICSID proceedings
Contracts as Investments
Costs incurred during negotiation do not constitute an investment; after the contract is concluded, this commitment constitutes an investment even according to the "Salini" criteria
"Salini" Criteria
Investments imply contributions, a certain duration of performance of the contract, participation in the risk of transaction, and contribution to economic development (so called Salini Test)
Costs incurred during negotiation do not constitute an investment; after the contract is concluded, this commitment constitutes an investment even according to the "Salini" criteria
Further Problems
Tribunals have to decide whether to address an alleged breach of good faith by the claimant at the jurisdictional stage or the merits
In case a state rejects settling contractual disputes by commercial arbitration, a breach of contract can constitute an alleged breach of an umbrella clause even if there is exclusive jurisdiction of commercial arbitration for contractual disputes
Arbitration (Articles 36-55)
Article 41
A tribunal must rule on all conditions concerning its jurisdiction