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Interest should start to accrue from the date of delivery of the award
Interest should be accumulated periodically to the principal
Improper inspections by a regulator for the purpose of intimidation constitute an abuse of power, which can cause extreme stress and have implications for the health of the supervised; thus, it may entitle the supervised to be compensated for moral damages
A state's measure being ultra vires under national law does not necessarily amount to a violation of the fair and equitable treatment-standard
Interest should accrue with LIBOR as the rate of reference, where the rate is increased by an appropriate margin to reflect the surcharge included for loans to customers
Different treatment of foreign and domestic investors is a natural consequence of an IIT
The claimant must show a causal relationship between the host state’s actions and the asserted damages
If an IIT only specifies the calculation of compensation for expropriations, this does not imply that a violation of other treaty standards may be left without redress
Definition of damage suffered by a claimant
If a proposal for the disqualification of an arbitrator is dismissed, the proponent should bear the full costs and expenses incurred by this incident
Exceptions have to be applied restrictively
The standard of compensation according to the fair market value of the asset on expropriation does not apply to breaches of other standards of protection
Reparation can take the form of restitution or compensation
Causal links have a positive and negative aspect; furthermore, one can distinguish pure and transitive causal links
Causation requires that the damage or disadvantage deriving from the state measure is foreseeable and occurs in a normal sequence of events
Claimant must prove damages with reasonable certainty; however, a different standard of certainty has to be applied to the conclusion that damages have been caused and their precise quantification
Recovery of loss of opportunity
There must be a common sense correlation between the amounts invested and the damages claimed
Terms should not be interpreted broadly or narrowly, but according to their plain meaning
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Special Rules of Interpretation
- Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > Further Problems > Special Rules of Interpretation
A settlement agreement can extinguish existing claims; however, the underlying factual occurrences may still be taken into account by a tribunal concerned with different claims
- International Investment Treaties (IITs) > Protection of Investors under IITs > Waiver of Rights Under an IIT
- Investment Treaty Arbitration > Admissibility > Res Judicata / Ne Bis In Idem
Moral damages can be awarded under exceptional circumstances, provided that a state's actions implied physical threat, caused deterioration of health, and were grave or substantial
Dismissing a claim on the basis of a jurisdictional objection not pleaded by the respondent amounts to a serious departure from fundamental rules of procedure
International Law Rules Applicable to IITs
Law of Treaties
Rules of Interpretation
Special Rules of Interpretation
Terms should not be interpreted broadly or narrowly, but according to their plain meaning
Protection of Investors under IITs
Character of IITs
Different treatment of foreign and domestic investors is a natural consequence of an IIT
Expropriation and Standards of Protection
Fair and Equitable Treatment
Character and Scope
A state's measure being ultra vires under national law does not necessarily amount to a violation of the fair and equitable treatment-standard
Exception Clauses
Exceptions have to be applied restrictively
Waiver of Rights Under an IIT
A settlement agreement can extinguish existing claims; however, the underlying factual occurrences may still be taken into account by a tribunal concerned with different claims
Admissibility
Res Judicata / Ne Bis In Idem
A settlement agreement can extinguish existing claims; however, the underlying factual occurrences may still be taken into account by a tribunal concerned with different claims
Costs
General Remarks
If a proposal for the disqualification of an arbitrator is dismissed, the proponent should bear the full costs and expenses incurred by this incident
Damages and Interest
General Remarks
Definition of damage suffered by a claimant
Reparation can take the form of restitution or compensation
There must be a common sense correlation between the amounts invested and the damages claimed
Forms of Damages
Improper inspections by a regulator for the purpose of intimidation constitute an abuse of power, which can cause extreme stress and have implications for the health of the supervised; thus, it may entitle the supervised to be compensated for moral damages
Claimant must prove damages with reasonable certainty; however, a different standard of certainty has to be applied to the conclusion that damages have been caused and their precise quantification
Recovery of loss of opportunity
Moral damages can be awarded under exceptional circumstances, provided that a state's actions implied physical threat, caused deterioration of health, and were grave or substantial
Causation
The claimant must show a causal relationship between the host state’s actions and the asserted damages
Causal links have a positive and negative aspect; furthermore, one can distinguish pure and transitive causal links
Causation requires that the damage or disadvantage deriving from the state measure is foreseeable and occurs in a normal sequence of events
Interest
Interest Absent Explicit Rules
Interest should be accumulated periodically to the principal
Interest should accrue with LIBOR as the rate of reference, where the rate is increased by an appropriate margin to reflect the surcharge included for loans to customers
Date From Which Interest Should be Granted
Interest should start to accrue from the date of delivery of the award
Relationship of Damages and Compensation for Expropriation
If an IIT only specifies the calculation of compensation for expropriations, this does not imply that a violation of other treaty standards may be left without redress
The standard of compensation according to the fair market value of the asset on expropriation does not apply to breaches of other standards of protection
Article 31 - General rule of interpretation
Further Problems
Special Rules of Interpretation
Terms should not be interpreted broadly or narrowly, but according to their plain meaning
Arbitration (Articles 36-55)
Article 52
Grounds for Annulment
Serious Departure From a Rule of Procedure
Dismissing a claim on the basis of a jurisdictional objection not pleaded by the respondent amounts to a serious departure from fundamental rules of procedure