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A state's consent to arbitration is expressed in the IIT
An umbrella clause cannot only be breached by actions that a commercial counterparty cannot take; i.e., an abuse of state power is not required
The performance of an agreement regarding the provision of comprehensive import supervision services cannot be regarded as outside the territory as long as a substantial and non-severable aspect of the overall service is provided within the host state.
The fact that a contract, which constitutes an investment within the IIT, could not be registered as such under domestic law does not affect an "in accordance with the law" requirement
Without any textual limitations, an umbrella clause may apply to all kind of commitments by a state
An exclusive jurisdiction clause in a contract does not bar a tribunal from examining a contract breach as a breach of an umbrella clause
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > Umbrella Clause > General Remarks
- International Investment Treaties (IITs) > Protection of Investors under IITs > Waiver of Rights Under an IIT
A state cannot rely on its national legislation to question the jurisdiction of a treaty based tribunal
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Domestic Law > Supremacy of Public International Law
- Vienna Convention on the Law of Treaties > Article 27 - Internal law and observance of treaties
Distinction between violation of a contract and a treaty
The definition of investment within Article 25 ICSID Convention is generally left to the consent of the parties; the consent serves as a lex specialis with regard to Article 25 ICSID Convention
A contract qualifies as an "asset" under the investment definition of an IIT
A state's non-payment under a contract is capable of giving rise to a breach of the FET standard
An exclusive choice of forum clause in a contract cannot bar a tribunal from examining treaty based claims
International Law Rules Applicable to IITs
Relationship of IITs to Domestic Law
Supremacy of Public International Law
A state cannot rely on its national legislation to question the jurisdiction of a treaty based tribunal
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
The Concept of "Investment"
Contracts
A contract qualifies as an "asset" under the investment definition of an IIT
Investment “In the Territory”
The performance of an agreement regarding the provision of comprehensive import supervision services cannot be regarded as outside the territory as long as a substantial and non-severable aspect of the overall service is provided within the host state.
Investment “In Accordance With the Legislation”
The fact that a contract, which constitutes an investment within the IIT, could not be registered as such under domestic law does not affect an "in accordance with the law" requirement
Expropriation and Standards of Protection
Fair and Equitable Treatment
Character and Scope
A state's non-payment under a contract is capable of giving rise to a breach of the FET standard
Umbrella Clause
General Remarks
An umbrella clause cannot only be breached by actions that a commercial counterparty cannot take; i.e., an abuse of state power is not required
Without any textual limitations, an umbrella clause may apply to all kind of commitments by a state
An exclusive jurisdiction clause in a contract does not bar a tribunal from examining a contract breach as a breach of an umbrella clause
Waiver of Rights Under an IIT
An exclusive jurisdiction clause in a contract does not bar a tribunal from examining a contract breach as a breach of an umbrella clause
An exclusive choice of forum clause in a contract cannot bar a tribunal from examining treaty based claims
Contract and Treaty Claims
Distinction of Contract and Treaty Claims
Distinction between violation of a contract and a treaty
Jurisdiction
Consent by the Parties
A state's consent to arbitration is expressed in the IIT
Article 27 - Internal law and observance of treaties
A state cannot rely on its national legislation to question the jurisdiction of a treaty based tribunal
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; the consent serves as a lex specialis with regard to Article 25 ICSID Convention