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Cemex v. Venezuela

Type of decisionDecision on Jurisdiction
Date of decision30 December 2010
Tribunal
Gilbert Guillaume (President)
Georges Abi-Saab
Robert B. von Mehren
Legal instrumentBIT between Netherlands and Venezuela (1991)
Related decision(s)
Further information

Statements from this decision

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International Investment Treaties (IITs)
International Law Rules Applicable to IITs
Law of Treaties
Rules of Interpretation
Special Rules of Interpretation
The principle of effectiveness (effet utile) cannot be applied on interpreting a state's unilateral statement, such as an alleged offer to arbitration
The principle of effectiveness (effet utile) only excludes interpretations which would render the text meaningless when a meaningful interpretation is possible; it does not require that a maximum effect is given to a text
Further Problems
If a national law has effect on the international plane, e.g. a state's unilateral offer to arbitration, that law has to be interpreted according to the rules of interpretation of international law, not the state's national rules of interpretation
On interpreting unilateral declarations, such as a state's offer to arbitration, the VCLT can be applied analogously to the extent it is compatible with the sui generis character of such declarations
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
The Concept of "Investment"
Shares
If a broad definition of investment in an IIT does not include an explicit reference to direct or indirect investments, it covers indirect investments made by indirect investors
Investment Treaty Arbitration
Correct Claimant
If a broad definition of investment in an IIT does not include an explicit reference to direct or indirect investments, it covers indirect investments made by indirect investors
Vienna Convention on the Law of Treaties
Article 31 - General rule of interpretation
General Remarks
If a national law has effect on the international plane, e.g. a state's unilateral offer to arbitration, that law has to be interpreted according to the rules of interpretation of international law, not the state's national rules of interpretation
On interpreting unilateral declarations, such as a state's offer to arbitration, the VCLT can be applied analogously to the extent it is compatible with the sui generis character of such declarations
Further Problems
Special Rules of Interpretation
The principle of effectiveness (effet utile) cannot be applied on interpreting a state's unilateral statement, such as an alleged offer to arbitration
The principle of effectiveness (effet utile) only excludes interpretations which would render the text meaningless when a meaningful interpretation is possible; it does not require that a maximum effect is given to a text
ICSID Convention
Jurisdiction of the Centre (Articles 25-27)
Article 25
Consent
Consent Based on National Legislation
The principle of effectiveness (effet utile) cannot be applied on interpreting a state's unilateral statement, such as an alleged offer to arbitration
A state's interpretation of its unilateral consent to jurisdiction is not binding on the tribunal; the tribunal is always judge of its own competence
If a national law has effect on the international plane, e.g. a state's unilateral offer to arbitration, that law has to be interpreted according to the rules of interpretation of international law, not the state's national rules of interpretation
On interpreting unilateral declarations, such as a state's offer to arbitration, the VCLT can be applied analogously to the extent it is compatible with the sui generis character of such declarations
Arbitration (Articles 36-55)
Article 41
A state's interpretation of its unilateral consent to jurisdiction is not binding on the tribunal; the tribunal is always judge of its own competence

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