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Articles 31 to 33 of VCLT are declaratory of existing customary international law
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
- Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > Further Problems > Articles 31 et seq. Reflect Customary International Law
According to Article 59 VCLT, the IIT between The Netherlands and Slovakia has not been terminated by the accession of Slovakia to the EU, as there is neither evidence of such an intention of the parties, nor are the legal rights of the IIT duplicated or incompatible with EU law
- 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 > IITs and the Law of the European Union
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Further Problems
- Vienna Convention on the Law of Treaties > Article 59 - Termination or suspension of the operation of a treaty implied by conclusion of a later treaty
It may be argued that regarding an intra-EU IIT there is no incompatibility of a "free transfer" provision with EU law
"Same subject matter" within Article 59 VCLT has common features with the notion of "identity" within the doctrine of res judicata; on the other hand, it is not relevant whether, on the facts of a specific case, a claim might be raised under several provisions
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Further Problems
- Vienna Convention on the Law of Treaties > Article 59 - Termination or suspension of the operation of a treaty implied by conclusion of a later treaty
The protection by the standard of prohibition of discrimination in EU law does not cover the protection by the FET standard entirely; thus, the requirements of Article 59 VCLT for a termination of the IIT are not met
- 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 > IITs and the Law of the European Union
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Further Problems
- Vienna Convention on the Law of Treaties > Article 59 - Termination or suspension of the operation of a treaty implied by conclusion of a later treaty
In general, an incompatibility between an IIT and EU law is a question of the applicable law, and as such a matter for the merits; the incompatibility could be a question of jurisdiction only if it were related to the consent to arbitration as expressed in the IIT, but EU law does not prohibit investor-state-arbitration
Neither the protection by the standard of full protection and security nor the protection by prohibition of unlawful expropriation is secured under EU law
The right to bring proceedings before domestic courts of an EU member state cannot be equated with investor-state-arbitration under an IIT
An intra-EU IIT may afford wider protection to investors from specific EU countries; while this may be a violation of the EU's prohibition of discrimination, it is no reason to cancel the investor's rights under the IIT
The ruling by the ECJ in the MOX Plant case is not applicable to investor-state-disputes
The fact that EU law may be among the applicable law does not deprive a tribunal of jurisdiction
While the ECJ has a monopoly on the final and authoritative interpretation of EU law, it has no interpretative monopoly which could preclude a tribunal from considering and applying EU law
A state's consent to arbitration is expressed in the IIT
Jurisdiction is fixed by laws and cannot be created, continued or extended by doctrines of acquiescence, waiver or estoppel
A claimant consents to an arbitration by commencing it
If a tribunal's jurisdiction is disputed on the basis of external rules, such as EU law, the proper framework for the analysis of the arguments is the IIT and public international law
- 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 > Relationship of an IIT to Other Treaties > IITs and the Law of the European Union
- Investment Treaty Arbitration > Jurisdiction > Further Problems
In general, the VCLT does not provide for the automatic termination of treaties; the invalidity or termination must be invoked according to Article 65 VCLT
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Further Problems
- Vienna Convention on the Law of Treaties > Article 65 - Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty
Article 59(1)(a) VCLT requires a broad incompatibility between two treaties
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Further Problems
- Vienna Convention on the Law of Treaties > Article 59 - Termination or suspension of the operation of a treaty implied by conclusion of a later treaty
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 a tribunal's jurisdiction is disputed on the basis of external rules, such as EU law, the proper framework for the analysis of the arguments is the IIT and public international law
IITs and the Law of the European Union
According to Article 59 VCLT, the IIT between The Netherlands and Slovakia has not been terminated by the accession of Slovakia to the EU, as there is neither evidence of such an intention of the parties, nor are the legal rights of the IIT duplicated or incompatible with EU law
It may be argued that regarding an intra-EU IIT there is no incompatibility of a "free transfer" provision with EU law
The protection by the standard of prohibition of discrimination in EU law does not cover the protection by the FET standard entirely; thus, the requirements of Article 59 VCLT for a termination of the IIT are not met
In general, an incompatibility between an IIT and EU law is a question of the applicable law, and as such a matter for the merits; the incompatibility could be a question of jurisdiction only if it were related to the consent to arbitration as expressed in the IIT, but EU law does not prohibit investor-state-arbitration
Neither the protection by the standard of full protection and security nor the protection by prohibition of unlawful expropriation is secured under EU law
The right to bring proceedings before domestic courts of an EU member state cannot be equated with investor-state-arbitration under an IIT
An intra-EU IIT may afford wider protection to investors from specific EU countries; while this may be a violation of the EU's prohibition of discrimination, it is no reason to cancel the investor's rights under the IIT
The ruling by the ECJ in the MOX Plant case is not applicable to investor-state-disputes
While the ECJ has a monopoly on the final and authoritative interpretation of EU law, it has no interpretative monopoly which could preclude a tribunal from considering and applying EU law
If a tribunal's jurisdiction is disputed on the basis of external rules, such as EU law, the proper framework for the analysis of the arguments is the IIT and public international law
Law of Treaties
Rules of Interpretation
Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
Articles 31 to 33 of VCLT are declaratory of existing customary international law
Further Problems
According to Article 59 VCLT, the IIT between The Netherlands and Slovakia has not been terminated by the accession of Slovakia to the EU, as there is neither evidence of such an intention of the parties, nor are the legal rights of the IIT duplicated or incompatible with EU law
"Same subject matter" within Article 59 VCLT has common features with the notion of "identity" within the doctrine of res judicata; on the other hand, it is not relevant whether, on the facts of a specific case, a claim might be raised under several provisions
The protection by the standard of prohibition of discrimination in EU law does not cover the protection by the FET standard entirely; thus, the requirements of Article 59 VCLT for a termination of the IIT are not met
In general, the VCLT does not provide for the automatic termination of treaties; the invalidity or termination must be invoked according to Article 65 VCLT
Article 59(1)(a) VCLT requires a broad incompatibility between two treaties
Jurisdiction
Consent by the Parties
A state's consent to arbitration is expressed in the IIT
A claimant consents to an arbitration by commencing it
Further Problems
The fact that EU law may be among the applicable law does not deprive a tribunal of jurisdiction
Jurisdiction is fixed by laws and cannot be created, continued or extended by doctrines of acquiescence, waiver or estoppel
If a tribunal's jurisdiction is disputed on the basis of external rules, such as EU law, the proper framework for the analysis of the arguments is the IIT and public international law
Article 31 - General rule of interpretation
Further Problems
Articles 31 et seq. Reflect Customary International Law
Articles 31 to 33 of VCLT are declaratory of existing customary international law
Article 59 - Termination or suspension of the operation of a treaty implied by conclusion of a later treaty
According to Article 59 VCLT, the IIT between The Netherlands and Slovakia has not been terminated by the accession of Slovakia to the EU, as there is neither evidence of such an intention of the parties, nor are the legal rights of the IIT duplicated or incompatible with EU law
"Same subject matter" within Article 59 VCLT has common features with the notion of "identity" within the doctrine of res judicata; on the other hand, it is not relevant whether, on the facts of a specific case, a claim might be raised under several provisions
The protection by the standard of prohibition of discrimination in EU law does not cover the protection by the FET standard entirely; thus, the requirements of Article 59 VCLT for a termination of the IIT are not met
Article 59(1)(a) VCLT requires a broad incompatibility between two treaties
Article 65 - Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty
In general, the VCLT does not provide for the automatic termination of treaties; the invalidity or termination must be invoked according to Article 65 VCLT