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SGS v. Pakistan

Type of decisionDecision of the Tribunal on Objections to Jurisdiction
Date of decision6 August 2003
Florentino P. Feliciano (President)
André Faurès
Christopher Thomas
Legal instrumentBIT between Pakistan and Switzerland (1995)
Further information

Statements from this decision

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An IIT may be applicable to disputes arising prior to its entry into force
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
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
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
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
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
An IIT may be applicable to disputes arising prior to its entry into force
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
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


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