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General statement regarding the requirements of Article 25 (3) ICSID Convention
Articles 31 to 33 of VCLT are declaratory of existing customary international law
- 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
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
It is the effect of clauses concerning dispute settlement mechanisms foreseen in investment agreements that they cover claims based on contracts, but not such based on IITs (including breaches of those provisions of the IIT guaranteeing fulfilment of contracts signed with foreign investors)
Investment agreement procedure clauses do not only refer to questions of amicable settlement
How to understand the term “entity” within clauses concerning dispute settlement mechanisms foreseen in investment agreements
MFN does not apply to dispute settlement provisions. The clause cannot be used to create the jurisdictional basis for a tribunal to hear contract claims.
Umbrella clauses have to be distinguished from other clauses, in particular clauses which merely commit the State to create a legal framework also apt to guarantee inter alia compliance with undertakings assumed with regard to specific investors
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
Articles 31 to 33 of VCLT are declaratory of existing customary international law
Protection of Investors under IITs
Expropriation and Standards of Protection
Most-Favoured-Nation Treatment (MFN)
Application to dispute settlement clauses
MFN does not apply to dispute settlement provisions. The clause cannot be used to create the jurisdictional basis for a tribunal to hear contract claims.
Umbrella Clause
General Remarks
Umbrella clauses have to be distinguished from other clauses, in particular clauses which merely commit the State to create a legal framework also apt to guarantee inter alia compliance with undertakings assumed with regard to specific investors
Dispute Settlement Clauses
Application of Clauses Concerning Dispute Settlement Mechanisms Foreseen in Investment Agreements
It is the effect of clauses concerning dispute settlement mechanisms foreseen in investment agreements that they cover claims based on contracts, but not such based on IITs (including breaches of those provisions of the IIT guaranteeing fulfilment of contracts signed with foreign investors)
Investment agreement procedure clauses do not only refer to questions of amicable settlement
How to understand the term “entity” within clauses concerning dispute settlement mechanisms foreseen in investment agreements
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
Article 31 - General rule of interpretation
Further Problems
Articles 31 et seq. Reflect Customary International Law
Articles 31 to 33 of VCLT are declaratory of existing customary international law
Jurisdiction of the Centre (Articles 25-27)
Article 25
Jurisdiction Ratione Personae
Party Status of the Contracting State, Subdivisions or Agencies
General statement regarding the requirements of Article 25 (3) ICSID Convention