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A party bears the burden of proof in establishing the facts that he or she asserts
The measure of compensation set out as a legality requirement in an IIT is binding only with respect to a lawful taking of property
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > Expropriation > Legality of an Expropriation
- Investment Treaty Arbitration > Damages and Interest > Relationship of Damages and Compensation for Expropriation
Violations of the FET standard may be so severe that they result in a taking of an investor's property, i.e. an expropriation
A tribunal has to differentiate between questions of jurisdiction and admissibility
Due to its sovereign power, a state may expropriate property, subject to the requirements of international law and the IIT
A tribunal has to distinguish between the burden of proof and the standard of proof; a tribunal has to determine the probative force of the evidence
Within the FET standard, it is not the tribunal's role to decide based on its own judgements of fairness
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
The stability of the legal and business framework is an essential element of fair and equitable treatment
If domestic law empowers certain organs to give authoritative and final interpretations of domestic law, it is not appropriate for a tribunal to substitute an opinion of its own unless the organs have acted in an arbitrary, discriminatory, or otherwise shocking manner
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Domestic Law
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Domestic Law > Applicability of Domestic Law / Renvoi
- International Investment Treaties (IITs) > Protection of Investors under IITs > Applicable Law / Choice of Law Clauses
An investor has been discriminated against if he or she has been subjected to unequal treatment in circumstances where there appears to be no reasonable basis for such differentiation; while a discriminatory intent may be relevant, the fact of unequal treatment is key
If an IIT protects from "unjustified discrimination", this language does not shift the burden of proof from the claimants to the respondent regarding the justification of a discriminatory measure
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > Arbitrary and Discriminatory Measures
- Investment Treaty Arbitration > Procedural Questions > Burden of Proof
The full protection and security standard may extend beyond the traditional standard of protection of the physical facilities and personnel
An appropriate interest rate may be based on the deposit rate commonly used in the country of the currency in which payment is to be made
International Law Rules Applicable to IITs
Relationship of IITs to Domestic Law
If domestic law empowers certain organs to give authoritative and final interpretations of domestic law, it is not appropriate for a tribunal to substitute an opinion of its own unless the organs have acted in an arbitrary, discriminatory, or otherwise shocking manner
Relationship of IITs to Domestic Law
Applicability of Domestic Law / Renvoi
If domestic law empowers certain organs to give authoritative and final interpretations of domestic law, it is not appropriate for a tribunal to substitute an opinion of its own unless the organs have acted in an arbitrary, discriminatory, or otherwise shocking manner
Protection of Investors under IITs
Expropriation and Standards of Protection
Expropriation
Indirect Expropriation / Regulations
Right to Regulate
Due to its sovereign power, a state may expropriate property, subject to the requirements of international law and the IIT
Legality of an Expropriation
The measure of compensation set out as a legality requirement in an IIT is binding only with respect to a lawful taking of property
Fair and Equitable Treatment
Character and Scope
Within the FET standard, it is not the tribunal's role to decide based on its own judgements of fairness
Discretion of the State
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
Case Groups
Further Cases
The stability of the legal and business framework is an essential element of fair and equitable treatment
Arbitrary and Discriminatory Measures
An investor has been discriminated against if he or she has been subjected to unequal treatment in circumstances where there appears to be no reasonable basis for such differentiation; while a discriminatory intent may be relevant, the fact of unequal treatment is key
If an IIT protects from "unjustified discrimination", this language does not shift the burden of proof from the claimants to the respondent regarding the justification of a discriminatory measure
Full Protection and Security
Character and Scope
The full protection and security standard may extend beyond the traditional standard of protection of the physical facilities and personnel
Relationship of Standards of Protection Within a Single IIT
Violations of the FET standard may be so severe that they result in a taking of an investor's property, i.e. an expropriation
Applicable Law / Choice of Law Clauses
If domestic law empowers certain organs to give authoritative and final interpretations of domestic law, it is not appropriate for a tribunal to substitute an opinion of its own unless the organs have acted in an arbitrary, discriminatory, or otherwise shocking manner
Distinction Between Jurisdiction and Admissibility
A tribunal has to differentiate between questions of jurisdiction and admissibility
Procedural Questions
Burden of Proof
A party bears the burden of proof in establishing the facts that he or she asserts
A tribunal has to distinguish between the burden of proof and the standard of proof; a tribunal has to determine the probative force of the evidence
If an IIT protects from "unjustified discrimination", this language does not shift the burden of proof from the claimants to the respondent regarding the justification of a discriminatory measure
Damages and Interest
Interest
Interest Absent Explicit Rules
An appropriate interest rate may be based on the deposit rate commonly used in the country of the currency in which payment is to be made
Relationship of Damages and Compensation for Expropriation
The measure of compensation set out as a legality requirement in an IIT is binding only with respect to a lawful taking of property