Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 183-204
Keyword(s):  
Public Interest ◽  
Economic Loss ◽  
Content Type ◽  
Legitimate Expectation ◽  
Fair And Equitable Treatment ◽  
Municipal Law ◽  
Legal Security ◽  
Equitable Treatment ◽  
Domestic Law ◽  
Full Protection

183Procedure — Provisional measures — Confidentiality — ICSID Convention, Article 47 — ICSID Arbitration Rule 39(1) — Whether confidentiality measures were needed to ensure orderly disposition and procedural integrity of the arbitration — Whether the parties may engage in general public discussion — Whether the parties may apply for restrictions to be liftedProcedure — Amicus curiae — ICSID Arbitration Rule 37(2) — Public interest — Whether there was a public interest in the arbitration — Whether the non-parties’ proposed submission had reasonable potential to assist the tribunal in determining a legal or factual matter by bringing a perspective different from the parties to the dispute — Whether the non-parties would address a matter within the scope of the dispute — Whether the non-party had a significant interest in the proceeding — Whether the non-party submission would disrupt the proceedings or unfairly burden or prejudice either party to the dispute — Whether non-parties should be granted access to key arbitral documents — Whether non-parties should be permitted to attend oral hearingsJurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Salini test — Whether the elements of the Salini test were mandatory legal requirements — Whether the BIT contained a broad and flexible definition of investmentJurisdiction — Consent — ICSID Convention, Article 25 — Corporate formalities — Whether the claimant was barred from proceeding with the arbitration in the absence of proof of a formal resolution approving the arbitrationJurisdiction — Municipal law — Consent — ICSID Convention, Article 25 — Whether a tribunal may exercise jurisdiction over claims arising under domestic law calling for parties to agree an acceptable dispute resolution mechanism, but where no agreement had been reachedJurisdiction — Municipal law — Consent — ICSID Convention, Article 25 — Whether a State’s consent to ICSID arbitration in a BIT implied consent to ICSID arbitration for claims arising under domestic lawJurisdiction — Cooling-off period — Whether a claimant’s failure to strictly observe a BIT’s six-month cooling-off period was a bar to jurisdictionExpropriation — Contract — Cumulative acts — Public purpose — Economic loss — Whether a party’s interest in a lease contract was an asset capable of being expropriated — Whether a State’s breach of contractual rights was relevant to the determination of expropriation claims under a BIT — Whether the cumulative effects of multiple acts can constitute an expropriation — Whether typically commercial activities can form the basis for a claim of expropriation when carried out by the State or its agencies — Whether 184economic loss was relevant to the question of a State’s liability for interference with an investor’s rightsFair and equitable treatment — Expropriation — Whether conduct constituting expropriation necessarily constituted a violation of the standard of fair and equitable treatmentFair and equitable treatment — Legitimate expectation — Whether the appointment of a non-independent regulator in violation of a legitimate expectation that regulators would be independent violated the standard of fair and equitable treatment where the breach had no negative impact on the investmentFair and equitable treatment — Contract — State-owned entity — Change of circumstances — Whether the State’s failure to ensure that government agencies paid their water bills could be distinguished from a commercial actor’s failure to pay bills and constituted a breach of the standard of fair and equitable treatment — Whether a State-owned entity had an obligation to renegotiate contracts based on changed circumstances — What facts a claimant must prove to demonstrate change of circumstancesArbitrary or discriminatory measures — Reasonableness — Whether the requirement that States must not impair investments through unreasonable or discriminatory measures implied the same reasonableness standard as fair and equitable treatmentArbitrary or discriminatory measures — Political motivations — Whether public statements, withdrawal of tax exemptions and seizure of property were arbitrary and unreasonable when motivated by political considerationsFull protection and security — Physical security — Commercial and legal security — Whether the standard of full protection and security applied only to physical security or extended to commercial and legal securityFree transfer — Availability of funds — Whether a State’s actions that destroyed the value of an investment, thereby depriving an investor of funds, constituted a violation of the protection of free transfer of fundsRemedies — Damages — Whether a State caused an investor’s damages where the value of the investment was already in jeopardy prior to the challenged actsCosts — Whether costs should be awarded to a claimant who prevailed on the merits but was unable to prove damages resulting from the challenged State conduct

AES Corporation and Tau Power BV v. Republic of Kazakhstan

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 610-629
Keyword(s):  
Public Interest ◽  
Competition Law ◽  
The State ◽  
Content Type ◽  
Legislative Reform ◽  
Legitimate Expectation ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Municipal Law ◽  
Equitable Treatment

610Jurisdiction — Consent — Revocation — Municipal law — ICSID Convention, Article 25 — Whether a State may revoke consent to arbitration by repealing municipal lawJurisdiction — Investment — ICSID Convention, Article 25 — Municipal law — Whether investments were excluded from jurisdiction by express exceptions under municipal lawJurisdiction — Consent — Temporality — Municipal law — Whether the revocation of consent to arbitration through the repeal of municipal law affected investments made prior to repealAdmissibility — Fork-in-the-road clause — Judicial act — Competition law — Whether claims for breach of competition law before municipal courts were the same as the investment treaty claimsAdmissibility — Domestic litigation requirement — Whether the exhaustion of local remedies was required — Whether the question was best left to the merits stageContract — Legitimate expectation — Legal stability — Competition law — Whether an agreement between the claimants and the State gave rise to a legitimate expectation that the State would not amend competition lawMunicipal law — Stabilisation clause — Legitimate expectation — Legal stability — Adverse effect — Whether the claimants had a legitimate expectation to be protected by a stabilisation clause that had been repealed — Whether the claimants had a legitimate expectation to be protected against legislative reform — Whether the claimants demonstrated any adverse effect from legislative reform — Whether it was predictable that the State would undertake reform of its competition lawFair and equitable treatment — Legitimate expectation — Arbitrariness — Denial of justice — Legal stability — Whether changes to competition law were in breach of the investment treaties — Whether alleged harassment and coercion were in breach of the standard of fair and equitable treatment — Whether the claimants were denied justice in the application of competition law by municipal courtsUmbrella clause — Municipal law — Contract — Legal stability — Whether a breach of municipal law could give rise to an investment treaty breach — Whether there was a breach of municipal law — Whether the State agreed not to reform competition lawFair and equitable treatment — Legitimate expectation — Free transfer — Proportionality — Public interest — Whether the claimants had an expectation to make and have the right to dispose of a reasonable return on their 611investment — Whether the requirement to reinvest all profits was in breach of legitimate expectations — Whether the measure was a proportionate response in the public interestRemedies — Restitution — Whether restitution was a feasible remedy in the circumstancesRemedies — Damages — Burden of proof — Quantum — Whether the claimants had established the scope of damage they suffered as a result of treaty breachRemedies — Damages — Future damages — Whether the claim for future loss was premature

Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 446-484
Keyword(s):  
Due Process ◽  
The State ◽  
State Responsibility ◽  
Responsibility Attribution ◽  
Content Type ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Municipal Law ◽  
Equitable Treatment ◽  
Debt Recovery

446Jurisdiction — Investment — Derivative transactions — Interpretation — Claims to money used to create an economic value — Claims to money associated with an investment — Whether a hedging agreement constituted an investment under the BITJurisdiction — Investment — Territorial requirement — Derivative transactions — Whether a hedging agreement satisfied the condition of territorial nexus to the host StateJurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Derivative transactions — Salini test — Contribution to economic development — Regularity of profit and return — Whether a hedging agreement constituted an investment — Whether all five elements of the Salini test were legal criteria for an investment under ICSID jurisdictionJurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Derivative transactions — Ordinary commercial transaction — Contingent liability — Whether a hedging agreement was an ordinary commercial transaction or a contingent liabilityJurisdiction — Contract — State-owned entity — Municipal law — Whether a hedging agreement was void because the transaction was outside a State-owned entity’s statutory authorityState responsibility — Attribution — Judicial acts — ILC Articles on State Responsibility, Article 4 — Whether a superior court was an organ of the host StateState responsibility — Attribution — Central bank — ILC Articles on State Responsibility, Article 4 — Whether a central bank was an organ of the host StateState responsibility — Attribution — State-owned entity — ILC Articles on State Responsibility, Article 4 — ILC Articles on State Responsibility, Article 5 — ILC Articles on State Responsibility, Article 8 — Whether a State-owned entity was an organ of the State — Whether actions of a State-owned entity were attributable to the State as an exercise of governmental authority — Whether a State-owned entity was acting under instructions or the direction and control of the StateFair and equitable treatment — Judicial acts — Due process — Interim order — Political motive — Whether court orders violated the standard of fair and equitable treatment — Whether public statements of a senior judge evidenced the political motive of court ordersFair and equitable treatment — Autonomous standard — Interpretation — Minimum standard of treatment — Whether the standard of fair and equitable treatment was materially different from customary international law447Fair and equitable treatment — Government investigation — Due process — Bad faith — Transparency — Whether a central bank’s investigation violated the standard of fair and equitable treatmentExpropriation — Indirect expropriation — Contract — Derivative transaction — Substantial deprivation — Debt recovery — Municipal law — Whether the subsistence of a contractual debt and the possibility to claim under the chosen law of a third State prevented a finding of expropriation — Whether the possibility of recovery in a third State was to be assessed as a prerequisite in the cause of action of expropriation or as a matter of causation and quantumExpropriation — Indirect expropriation — Contract — Substantial deprivation — Legitimate regulatory authority — Proportionality — Whether an interference with contractual rights was an exercise of the host State’s legitimate regulatory authority — Whether the regulatory measures were proportionateRemedies — Damages — Causation — Contract — Debt recovery — Whether the claimant suffered damages if it had the possibility to recover a contractual debt in the courts of a third StateCosts — Indemnity — Egregious breach — Bad faith — Whether the egregious nature of the host State’s breaches of its international obligations meant the claimant was entitled to full recovery of its costs, legal fees and expenses

MNSS BV and Recupero Credito Acciaio NV v. Montenegro

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 749-773
Keyword(s):  
International Law ◽  
Financial Institutions ◽  
Financial Institution ◽  
The State ◽  
State Responsibility ◽  
Breach Of Contract ◽  
Content Type ◽  
Fair And Equitable Treatment ◽  
Municipal Law ◽  
Equitable Treatment

749Jurisdiction — Consent — ICSID Additional Facility — Contract — Waiver — Whether a waiver must be explicit and entered freely — Whether a waiver must be consistent with the public interest pursued by the parties to the BITJurisdiction — Consent — ICSID Additional Facility — Municipal law — Whether municipal law on foreign investment contained an offer of consent to arbitrationJurisdiction — Foreign investor — Corporate nationality — Good faith — Whether the BIT excluded claims by shell companies — Whether assuming corporate nationality for the purposes of obtaining treaty protections breached good faith requirements — Whether the claimants obtained protection after the disputeJurisdiction — Investment — ICSID Additional Facility — Interpretation — Whether the meaning of investment under the ICSID Convention applied in ICSID Additional Facility arbitrationJurisdiction — Investment — Loans — ICSID Convention, Article 25 — Salini test – Whether loans qualified as protected investmentsJurisdiction — Investment — Legality — Municipal law — General principle of international law — Whether a legality requirement was implied by the BIT — Whether a legality requirement was a general principle of investment lawJurisdiction — Domestic litigation requirement — Whether a requirement that domestic remedies be exhausted could be implied into the BIT — Whether a requirement that domestic remedies be exhausted existed as a matter of customary international lawFair and equitable treatment — Interpretation — Minimum standard of treatment — Breach of contract — Whether the treaty standard of fair and equitable treatment required a lower threshold for breach than the customary minimum standard of treatment — Whether breach of contract may result in State responsibility for breach of fair and equitable treatmentFair and equitable treatment — Financial institutions — Whether States were under a duty to warn investors of the condition of the financial system or of a specific bank — Whether the State acted reasonably in its regulatory supervision of financial institutionsState responsibility — Attribution — Central bank — Financial institutions — ILC Articles on State Responsibility, Article 8 — Direct control — Whether the conduct of a private financial institution was attributable to the State — Whether the supervision of a private financial institution by a central bank rendered its conduct under the direct control of the State750 Fair and equitable treatment — Contract — Whether refusal by a State to reduce the workforce was a breach of contract or a breach of the standard of fair and equitable treatment — Whether a refusal by the State to allow a company to scrap obsolete machinery was a breach of contract or a breach of the standard of fair and equitable treatment — Whether the refusal by the State to approve refinancing proposals was a breach of contract or a breach of the standard of fair and equitable treatment — Whether delays associated with governmental approval of transfers of funds amounted to a breach of contract or a breach of the standard of fair and equitable treatmentFair and equitable treatment — Labour dispute — Whether the support by the State to a labour union amounted to a breach of the standard of fair and equitable treatment — Whether the State was under an obligation to publicly support a restructuring plan to which it had agreed — Whether the refusal to approve financing proposals was a matter for the State in its capacity as shareholder or in a public capacity — Whether the State failed to maintain a stable legal and business environmentState responsibility — Attribution — Bankruptcy administrator — Whether the conduct of a bankruptcy administrator was attributable to the StateFull protection and security — Interpretation — Whether the standard of most constant protection and security was equivalent to the standard of full protection and security under international law — Whether the provision of no or inadequate police presence breached the standard — Whether claimants proved loss from breachMost-favoured-nation treatment — Like circumstances — Whether the standard applied to investments only or also to investors — Whether investors in different industries were in like circumstances — Whether investors in like circumstances were treated more favourablyFree transfer — Whether refusal by the State to approve payments constituted a breach of the treaty standardExpropriation — Indirect expropriation — Whether the conduct constituted a deprivation of the economic use and benefit of the investmentsExpropriation — Direct expropriation — Judicial act — Whether transfer of title by a bankruptcy administrator constitutes a direct expropriation — Whether a court decision may constitute a judicial expropriation in the absence of a denial of justiceCosts — ICSID Additional Facility — Whether parties should bear their own costs when the State was successful in some jurisdictional objections and the claimants proved breach but no loss

Gavazzi and Gavazzi v. Romania

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 728-748
Keyword(s):  
Public Policy ◽  
Sufficient Evidence ◽  
Debt Restructuring ◽  
Content Type ◽  
Applicable Law ◽  
Fair And Equitable Treatment ◽  
Municipal Law ◽  
Bank Accounts ◽  
Equitable Treatment ◽  
Arbitration Award

728Jurisdiction — Investment — Shares — ICSID Convention, Article 25 — Salini test — Municipal law — Whether domestic formalities on investment registration were relevant to jurisdiction — Whether the purchase of shares satisfied the criteria of contribution, duration, risk and economic developmentJurisdiction — Investment — Claims to money — Arbitration award — ICSID Convention, Article 25 — Whether an arbitration award was a claim to money and thus a covered investmentJurisdiction — Time-bar — Applicable law — Whether time limitations under municipal law were relevant to jurisdictionCounterclaim — Contract — Jurisdiction — ICSID Convention, Article 42 — ICSID Convention, Article 46 — Applicable law — Whether the BIT permitted free-standing counterclaims based on breach of contract — Whether the applicable law of the contractual counterclaim was relevant to jurisdictionAdmissibility — Res judicata — Issue estoppel — Whether a related contractual arbitration and judicial review of the award under Romanian law precluded claims regarding breach of the BITFair and equitable treatment — Debt restructuring — Freezing bank accounts — Whether the State’s failure to restructure the acquired company’s debts on agreed terms and its acts and omissions in relation to the acquired company’s bank accounts breached the standard of fair and equitable treatment — Whether the breaches of fair and equitable treatment caused the bankruptcy of the acquired companyExpropriation — Debt restructuring — Contract — Whether the State’s failure to restructure the acquired company’s debts on agreed terms was a measure having similar effect to expropriation without compensation — Whether the claimants were entitled to suspend their agreed additional investments in the acquired companyFair and equitable treatment — Denial of justice — Public policy — Whether the State failed to provide effective means of asserting claims and enforcing rights — Whether a wrong decision was a denial of justice in breach of international law — Whether the judicial annulment of a commercial arbitration award on grounds of public policy was discriminatory or in bad faithRemedies — Damages — Valuation method — Evidence — Equitable principles — Whether the acquired company was a going concern — Whether it was appropriate to use past cash flow in valuation — Whether there was sufficient evidence to use an unlevered income approach to valuation — Whether quantum of damages could be determined according to equitable objective 729principles – Whether any reduction should be made for contributory negligence — Whether moral damages were appropriateRemedies — Interest — Whether it was appropriate to award compound interest

Enkev Beheer BV (of the Netherlands) v. Republic of Poland

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 630-648
Keyword(s):  
Due Process ◽  
The State ◽  
Third Party ◽  
Waiting Period ◽  
Content Type ◽  
Fair And Equitable Treatment ◽  
Just Compensation ◽  
Default Rules ◽  
Equitable Treatment ◽  
Almost All

630Procedure — Addition of a party — Conditional application — UNCITRAL Rules, Article 22 — UNCITRAL Rules, Article 17 — Whether the UNCITRAL Rules or lex loci arbitri allowed for applications to be made conditional on a tribunal’s future decision — Whether the application was consistent with the State’s procedural rights — Whether the amendment to a claim under Article 22 of the UNCITRAL Rules allowed for the addition of a third party as claimantJurisdiction — Investment — Shares — Whether an investor’s shares and rights derived from those shares were protected investments under the BITJurisdiction — Investment — Assets of subsidiary — Whether profits, goodwill or know-how of a local subsidiary constituted investments of the investor protected by the BITJurisdiction — Consent — Cooling-off period — Premature claims — Whether the investor had communicated its own claims rather than those of its local subsidiary — Whether the investor’s failure to comply with a waiting period of six months under the BIT required a tribunal to deny jurisdiction or admissibility — Whether the negotiation of a local subsidiary’s dispute in good faith was relevant to jurisdiction over a foreign investor’s claimsInterpretation — Cooling-off period — VCLT, Article 31 — Object and purpose — Whether the object and purpose of the BIT required a tribunal not to adopt a strict or formalistic interpretation of the waiting period of six monthsRemedies — Declaratory award — Interpretation — Just compensation — Whether the tribunal had jurisdiction under the BIT to make a declaratory award on the interpretation and application of the term “just compensation”Jurisdiction — Dispute — Whether the tribunal had jurisdiction under the BIT to advise the parties of an imminent disputeExpropriation — Direct deprivation — Shares — Rights derived from shares — Whether the State directly deprived the investor of its rights as a shareholder in its local subsidiaryExpropriation — Indirect deprivation — Shares — Rights derived from shares — Whether the shares had lost all or almost all significant commercial value — Whether the measures were adopted in the public interest — Whether due process had been followed — Whether there were any undertakings by the StateExpropriation — Interpretation — “Just compensation” — Whether there was any difference between the terms of the BIT and general international law — Whether the meaning of just compensation could be determined in the abstract631Fair and equitable treatment — Whether the impending expropriation constituted a breach of the standard of fair and equitable treatment — Whether the claim concerned the investor’s rights derived from sharesFull protection and security — Whether the State failed to protect an investment from expropriation by local authorities — Whether the claim concerned the investor’s rights derived from sharesUmbrella clause — Whether there was any assurance directed at the investor that created any legal obligations — Whether the claim concerned the investor’s rights derived from sharesCosts — Arbitration costs — Variation by agreement — UNCITRAL Rules — Whether the terms of the BIT varied the default rules for the allocation of arbitration costs

Part II The International Law Framework of Investment Protection and Political Risk, 6 The Substantive Law of Contemporary International Investment Protection

2020 ◽  
Author(s):  
Rubins Noah ◽  
Papanastasiou Thomas-Nektarios ◽  
Kinsella N Stephan
Keyword(s):  
International Law ◽  
Transition Economy ◽  
International Investment ◽  
Investment Protection ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Substantive Law ◽  
Equitable Treatment ◽  
National Investment ◽  
Domestic Law

Investors increasingly rely on the substantive protections provided in a growing number of investment treaties. This chapter covers the modern international law of investment protection as embodied in multilateral and bilateral investment treaties, including principles such as fair and equitable treatment, and full protection and security. The substantive protections investment treaties described in this chapter are often echoed in the national investment laws of developing and transition-economy countries. In particular, many recent national investment codes place limitations on the State’s authority to expropriate foreign assets, sometimes granting rights superior to those provided at customary international law. International investment treaties also guarantee proper application of domestic law by government authorities, national treatment, repatriation of profits, compensation for breach and other standards of treatment.

Part IV Law and Applicable Principles, 19 Principles of Investment Protection in International Mining Disputes

2017 ◽  
Author(s):  
Burnett Henry G ◽  
Bret Louis-Alexis
Keyword(s):  
Foreign Investment ◽  
Developing Economies ◽  
Most Favored Nation ◽  
National Treatment ◽  
Foreign Investors ◽  
Investment Protection ◽  
Secure Access ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Full Protection

In an effort to attract foreign investment many countries, especially developing economies, have created favorable investment conditions by setting up domestic and international guarantees for foreign investors. In addition to adopting foreign investment laws, many countries have concluded bilateral and multilateral investment treaties aimed at promoting and protecting foreign investment. These treaties provide a number of guarantees concerning foreign investment, which typically include the protection from expropriation; fair and equitable treatment (FET); full protection and security; the protection against arbitrary or discriminatory measures, national treatment, and most favored nation treatment; and, for some of them the observance of other undertakings entered into by contracting States with investors. This chapter examines each of these guarantees as well as the means to maximize investment protection and secure access to international arbitration.

Part III Substantive Rights, 7 Treatment of Investors

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
Integrated Approach ◽  
International Investment ◽  
National Treatment ◽  
Treatment Standards ◽  
Investment Protection ◽  
Fair And Equitable Treatment ◽  
General Rules ◽  
Equitable Treatment ◽  
Full Protection

Chapter 7 examines central treaty provisions on the treatment of investors. It begins with a discussion of the basis and character of treatment obligations, paying attention to the rule of law in international investment protection, the structure of investor treatment provisions within investment treaties, the historical evolution of the treatment standards, and the use of general rules in their interpretation. It then considers how the treatment standards have been developed and applied in contemporary arbitral awards. It conducts a detailed analysis of the principal treaty protections of fair and equitable treatment, full protection and security, national treatment, and most-favoured-nation treatment. It concludes by offering an integrated approach to the determination of contested rights.

3 Fair And Equitable Treatment

2009 ◽  
Author(s):  
Gallagher Norah ◽  
Shan Wenhua
Keyword(s):  
Bilateral Investment Treaties ◽  
National Treatment ◽  
Standard Format ◽  
Foreign Investors ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Equitable Treatment ◽  
Full Protection

Like other bilateral investment treaties (BITs), Chinese BITs establish a set of general standards of treatment accorded to foreign investors by the host state. The most commonly found general standards of treatment include fair and equitable treatment (FET), (full) protection and security (PNS), most favoured nation treatment (MFN), and national treatment (NT). The first two belong to the group of non-contingent standards (or so-called “absolute standard of treatment”), whilst the latter two are forms of contingent standards (or “relative standards of treatment”). Absolute standards do not depend on treatment granted to other investors. In contrast, the relative standards are contingent on treatment given to other categories of investors, nationals of the host state in the case of NT and investors from third states for the MFN. This chapter begins with an examination of the FET standard, focusing on the different approaches of interpretations that have been developed in theory and in arbitration practice. It then analyzes the standard under Chinese BITs and assesses the implications of its standard format and any variations.

scholarly journals What Roles Can Constitutional Law Play in Investment Arbitration?

2014 ◽  
Vol 15 (5-6) ◽  
pp. 862-888
Author(s):  
Laurence Boisson de Chazournes ◽  
Brian McGarry
Keyword(s):  
Constitutional Law ◽  
Dispute Settlement ◽  
Case Law ◽  
Recent Case ◽  
Treaty Ratification ◽  
Investment Arbitration ◽  
Fair And Equitable Treatment ◽  
Per Se ◽  
Equitable Treatment ◽  
Domestic Law

Interplays between international and domestic legal spheres have attracted increased attention in investor-State dispute settlement. From the treaty ratification process to award execution, constitutional norms play recurring roles before, during and after investment arbitrations. This contribution deals with the manner in which parties to such disputes can rely upon constitutional law or, more broadly speaking, domestic law. Notably, major hurdles to the application of domestic law in transnational fora have not necessarily constrained the arbitral profile of constitutional principles. This is because they may gain prominence through informal paths. Rather than directly applying constitutional law per se, tribunals may utilize other paths such as deferring to domestic interpretations of constitutional principles, or to constitutional procedures that appear, for example, to protect fair and equitable treatment. Reexamining recent case law through this lens of informal application, we can then envision other synergies that intermingle these regimes.

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