You are currently viewing the statements in a list. To view them in their context,
click here.
You are currently viewing the statements in their context. To view them in a list, click
here.
Remarks regarding the burden of proof within Article 17 ECT
A "substantial" business activity within the meaning of Article 17(1) ECT requires an activity 'of substance, and not merely of form'
The objection of lis pendens requires an identity of the underlying facts, parties and causes of action
As the obligations within Article 10(1) ECT overlap, a claimant can plead that the same conduct breaches various obligations in circumstances where their content and relationship is not clear
Consent to arbitrate should be unequivocal and must be unconditional
A claimant consents to an arbitration by commencing it
A counterclaim for non-material injury to the respondent's reputation requires a basis in the applicable law; in ECT proceedings, there is no basis for such a claim
Denial of justice constitutes a violation of the standard of fair and equitable treatment
On examining whether judicial decisions denied justice, a tribunal has to decide whether the decisions were clearly improper and discreditable
If there is more than one decision by domestic courts, a tribunal has to consider the decisions in their entirety on examining an alleged denial of justice
On examining an alleged denial of justice, a tribunal has to take the available domestic legal means into account by which errors or injustices could have been addressed
The protection from denial of justice does not turn tribunals into courts of appeal for decisions of local courts
Article 10(1) ECT does not apply to contracts concluded between two domestic legal entities
"Effective means" within the meaning of Article 10(12) ECT requires a constitutional and publicly available legislation for the recognition and enforcement of property and contractual rights; "effective" refers to a systematic, comparative, progressive, and practical standard
Even if an institution is not an organ of a state, its actions are attributable to the state if they are de jure imperii
Article 22(1) ECT does not constitute an obligation of the state to assume liability for any state-owned legal entity; it only imposes a general obligation to make these entities capable of observing the obligations under Part III of the ECT
The claim for costs does not require a counterclaim
- Investment Treaty Arbitration > Counterclaims
- Investment Treaty Arbitration > Costs > General Remarks
A state's consent to arbitration is expressed in the IIT
In Article 1(6) ECT, as well as in most other IITs, the definition of investment consists of three parts; a wide definition illustrated by several rights as well as a clarification and a restriction concerning several types of economic activity
Within Article 1(6) ECT the activity of the investment must be energy related, without needing to satisfy the definition in Article 1(5) ECT; a mere contractual relationship with an entity engaged in an economic activity in the energy sector is not sufficient
There is no general principle that an investor may ignore waiting clauses
If a state party takes the position that a waiting clause has not been complied with, it has to raise this objection immediately as a matter of procedural good faith
A party bears the burden of proof in establishing the facts that he or she asserts
Neither the ECT nor international law contain any principles related to powers of attorney; the burden of proof regarding a lack of the attorney's authority is on the party alleging it
- International Investment Treaties (IITs) > 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 > Further Problems
- Investment Treaty Arbitration > Procedural Questions > Burden of Proof
- Investment Treaty Arbitration > Procedural Questions > Further Problems
A duty to attempt settlement serves the purpose to discuss the dispute by exchanging views over its causes and identifying possible solutions; a party does not need to identify any claims at this point
Article 17 ECT can be subject to arbitration
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
Further Problems
Neither the ECT nor international law contain any principles related to powers of attorney; the burden of proof regarding a lack of the attorney's authority is on the party alleging it
Law of State Responsibility
Attribution of Acts
Attribution of Acts by State Entities
Even if an institution is not an organ of a state, its actions are attributable to the state if they are de jure imperii
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
The Concept of "Investment"
General Remarks
In Article 1(6) ECT, as well as in most other IITs, the definition of investment consists of three parts; a wide definition illustrated by several rights as well as a clarification and a restriction concerning several types of economic activity
Further Problems
Within Article 1(6) ECT the activity of the investment must be energy related, without needing to satisfy the definition in Article 1(5) ECT; a mere contractual relationship with an entity engaged in an economic activity in the energy sector is not sufficient
Ratione Personae – Protected Investors
Juridical Persons
A "substantial" business activity within the meaning of Article 17(1) ECT requires an activity 'of substance, and not merely of form'
Expropriation and Standards of Protection
Fair and Equitable Treatment
Case Groups
Denial of Justice
Denial of justice constitutes a violation of the standard of fair and equitable treatment
On examining whether judicial decisions denied justice, a tribunal has to decide whether the decisions were clearly improper and discreditable
If there is more than one decision by domestic courts, a tribunal has to consider the decisions in their entirety on examining an alleged denial of justice
On examining an alleged denial of justice, a tribunal has to take the available domestic legal means into account by which errors or injustices could have been addressed
The protection from denial of justice does not turn tribunals into courts of appeal for decisions of local courts
Umbrella Clause
Umbrella Clauses and Questions of Attribution of Contracts
Article 10(1) ECT does not apply to contracts concluded between two domestic legal entities
Article 22(1) ECT does not constitute an obligation of the state to assume liability for any state-owned legal entity; it only imposes a general obligation to make these entities capable of observing the obligations under Part III of the ECT
Effective means of asserting claims
"Effective means" within the meaning of Article 10(12) ECT requires a constitutional and publicly available legislation for the recognition and enforcement of property and contractual rights; "effective" refers to a systematic, comparative, progressive, and practical standard
Relationship of Standards of Protection Within a Single IIT
As the obligations within Article 10(1) ECT overlap, a claimant can plead that the same conduct breaches various obligations in circumstances where their content and relationship is not clear
Dispute Settlement Clauses
Waiting Clauses / Duty to Attempt Settlement Before Arbitration
Character of Waiting Clauses
A duty to attempt settlement serves the purpose to discuss the dispute by exchanging views over its causes and identifying possible solutions; a party does not need to identify any claims at this point
Consequences of Failure to Observe the Waiting Period
There is no general principle that an investor may ignore waiting clauses
If a state party takes the position that a waiting clause has not been complied with, it has to raise this objection immediately as a matter of procedural good faith
Jurisdiction
Consent by the Parties
Consent to arbitrate should be unequivocal and must be unconditional
A claimant consents to an arbitration by commencing it
A state's consent to arbitration is expressed in the IIT
Interpreting Provisions Concerning Jurisdiction
Article 17 ECT can be subject to arbitration
Admissibility
Lis Pendens / Parallel Proceedings
The objection of lis pendens requires an identity of the underlying facts, parties and causes of action
Procedural Questions
Burden of Proof
Remarks regarding the burden of proof within Article 17 ECT
A party bears the burden of proof in establishing the facts that he or she asserts
Neither the ECT nor international law contain any principles related to powers of attorney; the burden of proof regarding a lack of the attorney's authority is on the party alleging it
Further Problems
Neither the ECT nor international law contain any principles related to powers of attorney; the burden of proof regarding a lack of the attorney's authority is on the party alleging it
Counterclaims
A counterclaim for non-material injury to the respondent's reputation requires a basis in the applicable law; in ECT proceedings, there is no basis for such a claim
The claim for costs does not require a counterclaim
Costs
General Remarks
The claim for costs does not require a counterclaim