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SGS v. Philippines

Type of decisionDecision of the Tribunal on Objections to Jurisdiction
Date of decision29 January 2004
Tribunal
Ahmed Sadek El-Kosheri (President)
Antonio Crivellaro
James R. Crawford
Legal instrumentBIT between Philippines and Switzerland (1997)
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While different tribunals should seek to act consistently with one another, there is no doctrine of precedent
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 IIT is at least applicable to disputes which are continuing at the date of the entry into force and the failure to pay sums due under a contract is an example of a continuing breach
A clause which provides that each contracting party shall observe any obligation it has assumed with regard to specific investments makes it a breach of the IIT for the host state to fail to observe binding commitments, including contractual commitments, which it has assumed regarding such investments
Wide dispute settlement clauses cannot be interpreted so as to exclude claims arising outside of the IIT
A binding exclusive jurisdiction clause in a contract should be respected, unless it is overridden by another valid provision. Neither the applicable IIT nor Article 26 ICSID Convention override such a clause. Accordingly, a decision by a tribunal on the question of the scope or extent of the contractual obligations would be premature unless earlier clarified by the dispute settlement mechanism provided for in the exclusive jurisdiction clause
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 exclusive jurisdiction clause within a contract may require the stay of proceedings as a consequence of a lack of admissibility
The IIT is at least applicable to disputes which are continuing at the date of the entry into force and the failure to pay sums due under a contract is an example of a continuing breach
Article 26 ICSID Convention does not override an exclusive jurisdiction clause within an investor-state contract

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