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If an IIT's applicability is restricted to disputes that have arisen before its entry into force, it does not matter whether the subject-matter of the claim concerns conduct before the IIT's entry into force
An umbrella clause does not elevate pure contractual claims into treaty claims; in case a contract contains an exclusive forum selection clause referring to domestic courts, an IIT based tribunal has no jurisdiction over these contractual claims
An obligation to create and maintain favourable economic and legal conditions does not prohibit changes in legislation
Indirect expropriation requires a radical deprivation and a taking of property; a mere breach of contract is not sufficient
If an IIT deems international law applicable, it covers breaches of any rule of international law, e.g. the customary standard of denial of justice; in elucidating such a standard, a tribunal may seek guidance in international treaties signed by the host state
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Other Sources of International Law > Relationship of an IIT to Other Treaties > General Remarks
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Other Sources of International Law > Further Problems
Overcharged dockets are an explanation, but not an excuse for judicial delays
The fact that an investor was aware of the length of procedures before domestic courts when concluding a contract is not relevant when assessing whether a judicial delay constitutes a denial of justice
Whether there is an investment is subject to a two-part test in treaty-based ICSID proceedings
Conduct of state organs and of entities exercising governmental authority is attributable to the host state if the requirements of the ILC Draft Articles on State Responsibility are met
A tribunal has jurisdiction over a dispute under the ICSID Convention even if the Convention was not applicable at the time the IIT entered into force, provided that the ICSID Convention was applicable at the time the investor accepted the state's offer to arbitrate
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Consent > Consent Based on an IIT
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Jurisdiction Ratione Temporis
A construction contract in which the execution of the works extends over a substantial period of time involves by definition an element of risk as required by 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
A fork-in-the-road-clause requires identity of object, parties and cause of action; contractual claims do not have the same cause of action as IIT claims
Whether a judicial delay constitutes a denial of justice has to be evaluated on the circumstances and the context of the case; the complexity of the matter, the need for celerity of the decision and the diligence of the claimant are relevant factors
The underlying concept of investment in the ICSID Convention implies an economical operation initiated and conducted by an entrepreneur using its own financial means and at its own financial risk, with the objective of making a profit within a given period of time
Distinction between violation of a contract and a treaty
The disruption of negotiations and the refusal to resume them does not necessarily amount to a breach of the FET standard
Exhaustion of local remedies (i.e. judicial finality) is a required substantive element of a claim for denial of justice; it is different from the traditional rule of exhaustion of local remedies, which is a procedural prerequisite
An exclusive jurisdiction clause in a contract cannot prevent an IIT based tribunal from examining the violations of the IIT
- International Investment Treaties (IITs) > Protection of Investors under IITs > Dispute Settlement Clauses > Fork in the Road Clauses
- International Investment Treaties (IITs) > Protection of Investors under IITs > Waiver of Rights Under an IIT
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
Relationship of an IIT to Other Treaties
General Remarks
If an IIT deems international law applicable, it covers breaches of any rule of international law, e.g. the customary standard of denial of justice; in elucidating such a standard, a tribunal may seek guidance in international treaties signed by the host state
Further Problems
If an IIT deems international law applicable, it covers breaches of any rule of international law, e.g. the customary standard of denial of justice; in elucidating such a standard, a tribunal may seek guidance in international treaties signed by the host state
Law of State Responsibility
Attribution of Acts
General Remarks
Conduct of state organs and of entities exercising governmental authority is attributable to the host state if the requirements of the ILC Draft Articles on State Responsibility are met
Protection of Investors under IITs
Applicability of IITs
Ratione Temporis – Application in Time
If an IIT's applicability is restricted to disputes that have arisen before its entry into force, it does not matter whether the subject-matter of the claim concerns conduct before the IIT's entry into force
Expropriation and Standards of Protection
Expropriation
Indirect Expropriation / Regulations
Determining Whether a Regulation Constitutes an Indirect Expropriation
Indirect expropriation requires a radical deprivation and a taking of property; a mere breach of contract is not sufficient
Fair and Equitable Treatment
Character and Scope
The disruption of negotiations and the refusal to resume them does not necessarily amount to a breach of the FET standard
Case Groups
Denial of Justice
Overcharged dockets are an explanation, but not an excuse for judicial delays
The fact that an investor was aware of the length of procedures before domestic courts when concluding a contract is not relevant when assessing whether a judicial delay constitutes a denial of justice
Whether a judicial delay constitutes a denial of justice has to be evaluated on the circumstances and the context of the case; the complexity of the matter, the need for celerity of the decision and the diligence of the claimant are relevant factors
Exhaustion of local remedies (i.e. judicial finality) is a required substantive element of a claim for denial of justice; it is different from the traditional rule of exhaustion of local remedies, which is a procedural prerequisite
Umbrella Clause
General Remarks
An umbrella clause does not elevate pure contractual claims into treaty claims; in case a contract contains an exclusive forum selection clause referring to domestic courts, an IIT based tribunal has no jurisdiction over these contractual claims
Dispute Settlement Clauses
Fork in the Road Clauses
A fork-in-the-road-clause requires identity of object, parties and cause of action; contractual claims do not have the same cause of action as IIT claims
An exclusive jurisdiction clause in a contract cannot prevent an IIT based tribunal from examining the violations of the IIT
Waiver of Rights Under an IIT
An exclusive jurisdiction clause in a contract cannot prevent an IIT based tribunal from examining the violations of the IIT
Further Problems
An obligation to create and maintain favourable economic and legal conditions does not prohibit changes in legislation
Contract and Treaty Claims
Distinction of Contract and Treaty Claims
Distinction between violation of a contract and a treaty
Jurisdiction of the Centre (Articles 25-27)
Article 25
Consent
Consent Based on an IIT
A tribunal has jurisdiction over a dispute under the ICSID Convention even if the Convention was not applicable at the time the IIT entered into force, provided that the ICSID Convention was applicable at the time the investor accepted the state's offer to arbitrate
Jurisdiction Ratione Materiae
Investment
The Parties’ Consent and “Investment” / Two-Part Test of Investment
Whether there is an investment is subject to a two-part test in treaty-based ICSID proceedings
Contracts as Investments
A construction contract in which the execution of the works extends over a substantial period of time involves by definition an element of risk as required by the Salini criteria
"Salini" Criteria
A construction contract in which the execution of the works extends over a substantial period of time involves by definition an element of risk as required by the Salini criteria
The underlying concept of investment in the ICSID Convention implies an economical operation initiated and conducted by an entrepreneur using its own financial means and at its own financial risk, with the objective of making a profit within a given period of time
Jurisdiction Ratione Temporis
A tribunal has jurisdiction over a dispute under the ICSID Convention even if the Convention was not applicable at the time the IIT entered into force, provided that the ICSID Convention was applicable at the time the investor accepted the state's offer to arbitrate