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If a practice exists between a treaty's parties that treaties are amended only by later treaties explicitly referring to the earlier one, one cannot presume that the parties would tacitly amend or extend an earlier treaty, at least if the later treaty is capable of operating independently
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Other Sources of International Law > Relationship of an IIT to Other Treaties > General Remarks
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Conclusion of Treaties / Entry into Force
- Vienna Convention on the Law of Treaties > Article 39 - General rule regarding the amendment of treaties
A state's consent to arbitration is expressed in the IIT
Even if certain management activities of a company in its country of incorporation only serve to fulfil that country's minimum legal requirements, the very same management activity can still be an indication of effective management of the company in that country as required by an IIT
If an IIT requires approval and registration of the investment, the approval under a party's general national law is sufficient unless the party makes it clear to potential investors that separate procedures exist
A claimant does not need to exhaust local remedies, if the IIT does not provide otherwise
If the IIT requires both incorporation and effective management in one country, both requirements have to be met regardless of the country's local law
A requirement of effective management of the investing company at the place of incorporation avoids "protection shopping"
There is a presumption that effective management, once established, is not readily lost
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
Relationship of an IIT to Other Treaties
General Remarks
If a practice exists between a treaty's parties that treaties are amended only by later treaties explicitly referring to the earlier one, one cannot presume that the parties would tacitly amend or extend an earlier treaty, at least if the later treaty is capable of operating independently
Law of Treaties
Conclusion of Treaties / Entry into Force
If a practice exists between a treaty's parties that treaties are amended only by later treaties explicitly referring to the earlier one, one cannot presume that the parties would tacitly amend or extend an earlier treaty, at least if the later treaty is capable of operating independently
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
Approval of the Investment
If an IIT requires approval and registration of the investment, the approval under a party's general national law is sufficient unless the party makes it clear to potential investors that separate procedures exist
Ratione Personae – Protected Investors
Juridical Persons
Even if certain management activities of a company in its country of incorporation only serve to fulfil that country's minimum legal requirements, the very same management activity can still be an indication of effective management of the company in that country as required by an IIT
If the IIT requires both incorporation and effective management in one country, both requirements have to be met regardless of the country's local law
A requirement of effective management of the investing company at the place of incorporation avoids "protection shopping"
There is a presumption that effective management, once established, is not readily lost
Dispute Settlement Clauses
Exhaustion of Local Remedies Clauses
A claimant does not need to exhaust local remedies, if the IIT does not provide otherwise
Jurisdiction
Consent by the Parties
A state's consent to arbitration is expressed in the IIT
Article 39 - General rule regarding the amendment of treaties
If a practice exists between a treaty's parties that treaties are amended only by later treaties explicitly referring to the earlier one, one cannot presume that the parties would tacitly amend or extend an earlier treaty, at least if the later treaty is capable of operating independently