You are currently viewing the statements in a list. To view them in their context,
click here.
You are currently viewing the statements in their context. To view them in a list, click
here.
A pre-shipment inspection agreement is an investment because it (1) gives rise to claims for money, (2) is a public law concession, and (3) grants rights given by law and by contract
An IIT may be applicable to disputes arising prior to its entry into force
- International Investment Treaties (IITs) > Protection of Investors under IITs > Applicability of IITs > Ratione Temporis – Application in Time
- Vienna Convention on the Law of Treaties > Article 28 - Non-retroactivity of treaties
The definition of investment within Article 25 ICSID Convention is generally left to the consent of the parties; there is, however, an objective limit to this freedom
At the jurisdictional stage, a tribunal has a limited ability to scrutinize the claims as formulated by the claimant. If the facts asserted by the claimant are capable of being regarded as alleged breaches of the IIT, the claimant should be able to have them considered on their merits
Dispute settlement clauses do not relate to the legal basis of the claim and, therefore, cannot serve as a basis for jurisdiction
In the absence of a clause prohibiting parallel proceedings, such proceedings are possible
A contractual dispute settlement clause should be respected
Even if the procedures required before the initiation of arbitration proceedings are not properly complied with, the consequences would be too far-reaching if – solely on this ground – a tribunal would be prevented from examining the case
The option of raising IIT claims before other fora has no impact on an ICSID tribunal’s jurisdiction over treaty claims
IIT proceedings need not be stayed until contract claims are addressed in another forum
Where there is no clear and persuasive evidence that it was the intention of the Contracting parties to treat breaches of contracts as such of the IIT the clause in question must be denied such an effect
Protection of Investors under IITs
Applicability of IITs
Ratione Temporis – Application in Time
An IIT may be applicable to disputes arising prior to its entry into force
Expropriation and Standards of Protection
Umbrella Clause
General Remarks
Where there is no clear and persuasive evidence that it was the intention of the Contracting parties to treat breaches of contracts as such of the IIT the clause in question must be denied such an effect
Dispute Settlement Clauses
Waiting Clauses / Duty to Attempt Settlement Before Arbitration
Consequences of Failure to Observe the Waiting Period
Even if the procedures required before the initiation of arbitration proceedings are not properly complied with, the consequences would be too far-reaching if – solely on this ground – a tribunal would be prevented from examining the case
Wide Dispute Settlement Clauses
Dispute settlement clauses do not relate to the legal basis of the claim and, therefore, cannot serve as a basis for jurisdiction
The Problem of Parallel Proceedings in Cases Where There is no Explicit Clause Avoiding Such Situations
In the absence of a clause prohibiting parallel proceedings, such proceedings are possible
Waiver of Rights Under an IIT
A contractual dispute settlement clause should be respected
Contract and Treaty Claims
Impact of Contract Claims on IIT Claims
The option of raising IIT claims before other fora has no impact on an ICSID tribunal’s jurisdiction over treaty claims
IIT proceedings need not be stayed until contract claims are addressed in another forum
Admissibility
Prima Facie Case
At the jurisdictional stage, a tribunal has a limited ability to scrutinize the claims as formulated by the claimant. If the facts asserted by the claimant are capable of being regarded as alleged breaches of the IIT, the claimant should be able to have them considered on their merits
Article 28 - Non-retroactivity of treaties
An IIT may be applicable to disputes arising prior to its entry into force
Jurisdiction of the Centre (Articles 25-27)
Article 25
Jurisdiction Ratione Materiae
Investment
The Parties’ Consent and “Investment” / Two-Part Test of Investment
The definition of investment within Article 25 ICSID Convention is generally left to the consent of the parties; there is, however, an objective limit to this freedom
Contracts as Investments
A pre-shipment inspection agreement is an investment because it (1) gives rise to claims for money, (2) is a public law concession, and (3) grants rights given by law and by contract