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Article 26 ICSID Convention does not override an exclusive jurisdiction clause within an investor-state contract
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
- 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
While different tribunals should seek to act consistently with one another, there is no doctrine of precedent
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
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
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.
An exclusive jurisdiction clause within a contract may require the stay of proceedings as a consequence of a lack of admissibility
Wide dispute settlement clauses cannot be interpreted so as to exclude claims arising outside of the IIT
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
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
System of Precedents
While different tribunals should seek to act consistently with one another, there is no doctrine of precedent
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
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.
Ratione Temporis – Application in Time
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
Expropriation and Standards of Protection
Umbrella Clause
General Remarks
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
Dispute Settlement Clauses
Wide Dispute Settlement Clauses
Wide dispute settlement clauses cannot be interpreted so as to exclude claims arising outside of the IIT
Waiver of Rights Under an 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
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
Stay of Proceedings as a Consequence of a Lack of Admissibility
An exclusive jurisdiction clause within a contract may require the stay of proceedings as a consequence of a lack of admissibility
Article 28 - Non-retroactivity of treaties
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
Jurisdiction of the Centre (Articles 25-27)
Article 26
Article 26 ICSID Convention does not override an exclusive jurisdiction clause within an investor-state contract