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The distinction between jurisdiction and admissibility is not appropriate in the context of the ICSID Convention
A mere governmental policy does not constitute a measure per se
- International Investment Treaties (IITs) > Protection of Investors under IITs > Applicability of IITs > State Conduct as a ‘Measure’ Violating the Treaty
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Jurisdiction Ratione Materiae > Legal Dispute
A state cannot rely on the Barcelona Traction case to question the jus standi of a shareholder in an investor-state arbitration
- Investment Treaty Arbitration > Correct Claimant
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Further Problems
A shareholder can bring a claim, even if he or she does not control the company or does not own a majority of its shares
Minority shareholdings can constitute investments
An exclusive choice of forum clause in a contract cannot bar a tribunal from examining treaty based claims
A dispute over measures violating the rights of a domestic company constitutes a dispute arising directly out of an investment even if the claimant is a shareholder of that company and the investment in question are his or her shares
All shares are protected, regardless of their origin
State responsibility can also be based on an act of the judiciary
Ancillary claims neither require a new request for arbitration, nor a new six-month period for consultation or negotiation
A fork in the road clause precludes admissibility only if the dispute brought to local courts concerns the same obligation as before the tribunal
Assumed consequences by a tribunal's decision, such as a discrimination of nationals not having rights under an IIT or multiple claims by investors of different nationalities under separate IITs, do not preclude the admissibility of a claim
The deciding factors whether a tribunal is seized with one or more disputes are the claim's subject-matter, the scope of consent of the parties and the tribunal's jurisdiction
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Jurisdiction Ratione Materiae > Legal Dispute
- ICSID Convention > Arbitration (Articles 36-55) > Article 46
- ICSID Arbitration Rules > Rule 40
While Article 42 ICSID Convention generally applies to the merits, the parties can agree to a different choice of law applicable to jurisdictional questions
Although a tribunal does not have jurisdiction over measures of general state policy, it has jurisdiction to examine specific measures of that policy if they have a direct bearing on the investment
International Law Rules Applicable to IITs
Law of State Responsibility
Attribution of Acts
Attribution of Acts by the Judiciary
State responsibility can also be based on an act of the judiciary
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
The Concept of "Investment"
Shares
Minority shareholdings can constitute investments
All shares are protected, regardless of their origin
State Conduct as a ‘Measure’ Violating the Treaty
A mere governmental policy does not constitute a measure per se
Dispute Settlement Clauses
Fork in the Road Clauses
A fork in the road clause precludes admissibility only if the dispute brought to local courts concerns the same obligation as before the tribunal
Waiver of Rights Under an IIT
An exclusive choice of forum clause in a contract cannot bar a tribunal from examining treaty based claims
Distinction Between Jurisdiction and Admissibility
The distinction between jurisdiction and admissibility is not appropriate in the context of the ICSID Convention
Admissibility
Further Problems
Assumed consequences by a tribunal's decision, such as a discrimination of nationals not having rights under an IIT or multiple claims by investors of different nationalities under separate IITs, do not preclude the admissibility of a claim
Correct Claimant
A state cannot rely on the Barcelona Traction case to question the jus standi of a shareholder in an investor-state arbitration
Jurisdiction of the Centre (Articles 25-27)
Article 25
Jurisdiction Ratione Materiae
Investment
Further Problems
A shareholder can bring a claim, even if he or she does not control the company or does not own a majority of its shares
Legal Dispute
A mere governmental policy does not constitute a measure per se
The deciding factors whether a tribunal is seized with one or more disputes are the claim's subject-matter, the scope of consent of the parties and the tribunal's jurisdiction
Arising Directly out of an Investment
A dispute over measures violating the rights of a domestic company constitutes a dispute arising directly out of an investment even if the claimant is a shareholder of that company and the investment in question are his or her shares
Although a tribunal does not have jurisdiction over measures of general state policy, it has jurisdiction to examine specific measures of that policy if they have a direct bearing on the investment
Further Problems
A state cannot rely on the Barcelona Traction case to question the jus standi of a shareholder in an investor-state arbitration
Arbitration (Articles 36-55)
Article 42
General Remarks
While Article 42 ICSID Convention generally applies to the merits, the parties can agree to a different choice of law applicable to jurisdictional questions
Article 46
The deciding factors whether a tribunal is seized with one or more disputes are the claim's subject-matter, the scope of consent of the parties and the tribunal's jurisdiction
Rule 40
Ancillary claims neither require a new request for arbitration, nor a new six-month period for consultation or negotiation
The deciding factors whether a tribunal is seized with one or more disputes are the claim's subject-matter, the scope of consent of the parties and the tribunal's jurisdiction