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General remarks on fair and equitable treatment
In case the IIT requires the respondent to refrain from “arbitrary and discriminatory” treatment, a measure must be both arbitrary and discriminatory to violate the IIT
A tribunal must compare the measure to the treatment of domestic investments only; as long as the treatment is identical, a measure is not discriminatory, even if the consequences of the treatment were more severe for the foreign investor
The full protection and security standard is not a strict liability standard
The obligation to provide treatment in conformity with public international law does not broaden the protection of the investor beyond the other more specific standards of protection of the IIT
Definition of an expropriatory act
Expropriation requires an act initiated by the state and the act has to result in a benefit for the state
A statement of a member of a state organ does not constitute a measure as long as the statement has no direct effect on the investment or cannot be attributed to the state
A statement by a state organ does not amount to a measure inasmuch as it refers to the interpretation of law only and does not have any legal effect
Multiple parallel proceedings neither affect the tribunal’s authority nor undermine the parties’ rights; it does not amount to an abuse of process to pursue the rights under a treaty in front of a tribunal, if this tribunal is the only forum to protect them
The claimant’s non-disclosure of a prima facie case that the respondent has breached the treaty does not constitute an abuse of process
Causality requires that the breach is conditio sine qua non and no superseding cause exists
A treaty provision that requires that “the dispute” shall not have been submitted for resolution in accordance to other dispute-settlement procedures, precludes jurisdiction only if the different proceedings concern the same parties and the same dispute
Parallel proceedings neither affect the tribunal’s authority nor undermine the parties’ rights; it does not amount to an abuse of process to pursue the rights under a treaty before a tribunal, if this tribunal is the only forum to protect them
It would be overly formalistic for a tribunal to insist on a waiting period in case the respondent would never have accepted to enter into negotiations
A waiting period is not a jurisdictional provision, but a procedural rule
The waiting period runs from the date at which the state is advised that the breach in question occurred
There is no obligation for a state to intervene in a dispute between two companies; the state’s only duty is to provide a functioning judicial system
Definition of arbitrary
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
Abuse of Process
Multiple parallel proceedings neither affect the tribunal’s authority nor undermine the parties’ rights; it does not amount to an abuse of process to pursue the rights under a treaty in front of a tribunal, if this tribunal is the only forum to protect them
The claimant’s non-disclosure of a prima facie case that the respondent has breached the treaty does not constitute an abuse of process
Protection of Investors under IITs
Applicability of IITs
State Conduct as a ‘Measure’ Violating the Treaty
A statement of a member of a state organ does not constitute a measure as long as the statement has no direct effect on the investment or cannot be attributed to the state
A statement by a state organ does not amount to a measure inasmuch as it refers to the interpretation of law only and does not have any legal effect
Expropriation and Standards of Protection
Expropriation
General Requirements of an Expropriatory Act
Degree of Interference
Definition of an expropriatory act
Further Problems
Expropriation requires an act initiated by the state and the act has to result in a benefit for the state
Fair and Equitable Treatment
Relationship to Public International Law
The obligation to provide treatment in conformity with public international law does not broaden the protection of the investor beyond the other more specific standards of protection of the IIT
Character and Scope
General remarks on fair and equitable treatment
Arbitrary and Discriminatory Measures
In case the IIT requires the respondent to refrain from “arbitrary and discriminatory” treatment, a measure must be both arbitrary and discriminatory to violate the IIT
A tribunal must compare the measure to the treatment of domestic investments only; as long as the treatment is identical, a measure is not discriminatory, even if the consequences of the treatment were more severe for the foreign investor
Definition of arbitrary
Full Protection and Security
Character and Scope
The full protection and security standard is not a strict liability standard
Further Problems
There is no obligation for a state to intervene in a dispute between two companies; the state’s only duty is to provide a functioning judicial system
Dispute Settlement Clauses
Waiting Clauses / Duty to Attempt Settlement Before Arbitration
Character of Waiting Clauses
A waiting period is not a jurisdictional provision, but a procedural rule
Starting Date and Formal Requirements Triggering the Waiting Period
The waiting period runs from the date at which the state is advised that the breach in question occurred
Consequences of Failure to Observe the Waiting Period
It would be overly formalistic for a tribunal to insist on a waiting period in case the respondent would never have accepted to enter into negotiations
The Problem of Parallel Proceedings in Cases Where There is no Explicit Clause Avoiding Such Situations
Parallel proceedings neither affect the tribunal’s authority nor undermine the parties’ rights; it does not amount to an abuse of process to pursue the rights under a treaty before a tribunal, if this tribunal is the only forum to protect them
Admissibility
Lis Pendens / Parallel Proceedings
A treaty provision that requires that “the dispute” shall not have been submitted for resolution in accordance to other dispute-settlement procedures, precludes jurisdiction only if the different proceedings concern the same parties and the same dispute
Damages and Interest
Causation
Causality requires that the breach is conditio sine qua non and no superseding cause exists