Fakes v. Republic of Turkey

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 279-302
Keyword(s):  
International Law ◽  
Burden Of Proof ◽  
Content Type ◽  
Customary International Law ◽  
Applicable Law ◽  
Host State ◽  
Diplomatic Protection ◽  
Heavy Burden ◽  
Legal Fees ◽  
Necessary And Sufficient

279Jurisdiction — Foreign investor — Nationality — ICSID Convention, Article 25 — Dual nationality — Effective nationality — Whether an effective nationality test must be read into Article 25 of the ICSID Convention — Whether the explicit exclusion from jurisdiction of dual nationals who held the nationality of the host State was the only jurisdictional bar related to a natural person’s nationality under the ICSID ConventionApplicable law — Customary international law — Diplomatic protection — Effective nationality — ICSID Convention, Article 27(1) — Whether the rules of customary international law applicable in the context of diplomatic protection applied to determine nationality in investor–State arbitrationJurisdiction — Investment — ICSID Convention, Article 25 — Salini test — Legality — Whether the four elements of the Salini test must necessarily be met to determine the existence of an investment — Whether the three objective criteria of contribution, duration and risk were both necessary and sufficient to define an investment within the framework of the ICSID Convention — Whether the applicable BIT imposed further limits on protected investments — Whether the investment fell within the scope of the requirement of legality under municipal lawJurisdiction — Investment — Shares — Evidence — Burden of proof — Whether the share certificates were valid under the law of the host State — Whether the heavy burden of proof of alleged impropriety was met — Whether the claimant held legal title over the share certificates said to constitute the investmentEvidence — Burden of proof — Impropriety — Whether the burden of proof of any allegations of impropriety was particularly heavyCosts — Frivolous proceedings — ICSID Convention, Article 61(2) — ICSID Arbitration Rule 28 — Whether an arbitral tribunal had discretion in frivolous proceedings to allocate the arbitration costs and the legal fees and expenses between the parties by ordering the losing party to bear in full the costs of the arbitration and the entirety of the legal fees and expenses incurred by both parties

Romak SA (Switzerland) v. Republic of Uzbekistan

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 255-278
Keyword(s):  
International Law ◽  
Investment Risk ◽  
Short Term ◽  
Content Type ◽  
Customary International Law ◽  
Applicable Law ◽  
Arbitral Award ◽  
Objective Meaning ◽  
Contractual Rights ◽  
Limited Duration

255Applicable — Customary international law — Interpretation — Whether the BIT contained an agreement as to applicable law — Whether the VCLT was applicable where the BIT entered into force before the State’s accession to the VCLT — Whether the VCLT codified customary international lawInterpretation — Customary international law — VCLT, Article 31 — VCLT, Article 32 — Whether the list of investments under the BIT determined the existence of a protected investment — Whether the interpretation of the BIT should be guided by arbitral awards of other investment tribunalsJurisdiction — Investment — Interpretation — Salini test — Territoriality — Whether there was an objective meaning of investment — Whether the concept of investment differed depending on whether the investor resorted to ICSID or UNCITRAL arbitration — Whether the four elements of the Salini test were mandatory legal requirements — Whether the BIT contained further limits on the scope of protected investments regarding territorialityJurisdiction — Investment — Contract — Sale of goods — Duration — Risk — Whether one-off transactions relating to the sale of goods satisfied the criteria of contribution, duration and risk — Whether short-term projects were deprived of their status as investments solely by virtue of their limited duration — Whether there was a difference between pure commercial risk and investment riskJurisdiction — Investment — Arbitral award — Whether the embodiment or crystallisation of contractual rights in the form of an arbitral award transformed the underlying transaction into an investmentCosts — Costs follow the event — Whether costs should reflect the relative success and failure in the arbitration — Whether there was a justification to shift the arbitral costs against the losing party

Abaclat and Others (Case Formerly Known as Giovanna a Beccara and Others) v. Argentine Republic

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 364-423
Keyword(s):  
Economic Development ◽  
Due Process ◽  
Burden Of Proof ◽  
Third Party ◽  
Foreign Investor ◽  
Content Type ◽  
Host State ◽  
Sovereign Bonds ◽  
Investment Treaty ◽  
Made In

364Jurisdiction — Investment — Contract — Whether a dispute arising out of and in relation to sovereign bonds was an investment treaty dispute rather than a mere contractual dispute — Whether forum selection clauses influenced the place where the alleged investment was deemed to have been madeJurisdiction — Investment — Sovereign bonds — Contribution — Interpretation — Whether security entitlements derived from sovereign bonds constituted obligations or public securities within the definition of investment under the BIT — Whether the investors had made contributions leading to the creation of value that the contracting parties intended to protect under the BITJurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Salini test — Contribution — Whether the Salini test was the right approach to determine whether an investment had been made — Whether protection of security entitlements derived from sovereign bonds was consistent with the spirit and aim of the ICSID Convention — Whether the ICSID Convention sets the outer limits of consent given under the BITJurisdiction — Investment — Sovereign bonds — Legality — Whether the investment was made in compliance with municipal lawJurisdiction — Investment — Sovereign bonds — Territory — Economic development — Whether the investment was made in the territory of the host State — Whether it was sufficient for the invested funds to have supported the host State’s economic development — Whether it was necessary for investments of a purely financial nature to be linked to a specific economic enterprise or operation taking place in the territory of the host StateJurisdiction — Foreign investor — Nationality — Timing — Whether the investors held the nationality of the home State — Whether natural and juridical persons met certain requirements prior to the registration of the request for arbitrationJurisdiction — Foreign investor — Mass claim — Burden of proof — Whether the investors bore the burden to prove each of them met the requirements of jurisdictionJurisdiction — Foreign investor — Sovereign bonds — ICSID Convention, Article 25 — Whether a party that has purchased security entitlements derived from sovereign bonds through layers of intermediaries may still be classified as the party having made an investmentJurisdiction — Consent — Fraud — Whether the State may invoke the investor’s allegedly fraudulent consent to challenge the validity of the agreement to arbitrate the dispute365Jurisdiction — Consent — Mass claim — Procedure — Whether specific consent was required in regard to the procedure for arbitration in the form of collective proceedings or collective mass claimsJurisdiction — Consent — Prior consultation — Domestic litigation requirement — Whether prior consultation and domestic litigation requirements in the dispute resolution clause of a BIT were relevant to whether the host State consented to arbitrationAdmissibility — Mass claim — ICSID Convention — Denial of justice — Whether the mass aspect of a dispute was admissible under the current ICSID framework — Whether to deny the admissibility of mass claims would be a denial of justiceAdmissibility — Prior consultation — Domestic litigation requirement — Whether the failure to meet the requirements of prior consultation and domestic litigation rendered the claims inadmissible — Whether municipal courts would have resolved the dispute within 18 monthsProcedure — Mass claim — ICSID Convention — ICSID Arbitration Rules — Interpretation — Whether the silence of the ICSID framework in respect of collective proceedings was to be interpreted as a gap — Whether a tribunal may adapt the ICSID Arbitration Rules to enable the group examination of claims in accordance with the object and purpose of the ICSID Convention — Whether the claims of multiple claimants were identical or sufficiently homogeneous to allow for their group examination — Whether group examination would meet standards of due processProcedure — Withdrawal — Mass claim — ICSID Institution Rule 8 — Whether certain investors had withdrawn their consent prior to registration of the request for arbitrationProcedure — Discontinuance — Mass claim — ICSID Arbitration Rule 44 — Whether the request of certain investors for discontinuance should be granted — Whether discontinuance of some investors required the termination of the arbitrationAdmissibility — Abuse of rights — Agent — ICSID Arbitration Rule 18 — Whether the ulterior interests of a third party acting as agent in the arbitration constituted an abuse of rights by the investorsProcedure — Evidence — ICSID Arbitration Rule 25 — Request for arbitration — ICSID Convention, Article 36(2) — Whether updated annexes to the request for arbitration containing information related to each investor were admissible — Whether the introduction of evidence violated the requirements of the request for arbitration by unilaterally updating the identity of the parties366 Costs — Discontinuance — Whether investors who discontinued their participation in the proceeding should bear their own legal costs and a share of the arbitration costsInterpretation — ICSID Convention — Policy — Whether policy considerations were relevant to determine whether the tribunal had jurisdiction over claims arising from sovereign bonds — Whether policy considerations were relevant to determine whether mass claims were admissible

Kazakhstan Ministry of Finance and National Bank of Kazakhstan v. Ascom Group SA, Anatolie Stati, Gabriel Stati, Terra Raf Trans Traiding Ltd

2021 ◽  
Vol 195 ◽  
pp. 387-413
Keyword(s):  
United Nations ◽  
Central Bank ◽  
International Law ◽  
The State ◽  
Content Type ◽  
Customary International Law ◽  
State Immunity ◽  
National Bank ◽  
United Nations Convention ◽  
Ministry Of Finance

387State immunity — Immunity from execution — Customary international law — United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004 — Articles 19 and 21 — Whether property of a State central bank immune from measures of constraintArbitration — Post-Award enforcement — Attachment — Whether property of a State central bank immune from attachment in satisfaction of an arbitral award rendered against the State — The law of Sweden

Jurisdiction and Applicable Law

2012 ◽  
Vol 25 (2) ◽  
pp. 471-479 ◽  
Author(s):  
JAMES R. CRAWFORD
Keyword(s):  
International Law ◽  
Related Question ◽  
Customary International Law ◽  
Applicable Law ◽  
International Court ◽  
The Us ◽  
Treaty Law ◽  
Multilateral Treaty

AbstractThis article provides a reappraisal of the International Court of Justice's approach to jurisdiction and applicable law inNicaragua, 25 years later. In the first phase of the proceedings arising from the US support of the activities of the Contras against the Sandinista government, the Court robustly asserted its jurisdiction despite the US reliance on its multilateral treaty reservation and the subsequent attempted modification of its Optional Clause declaration. At the same time, the Court approached the related question of applicable law with a wide, if not effusive, reliance on multilateral customary international law operating conjunctively with treaty law. The Court's dismissal of negotiations as a procedural precondition for invoking its jurisdiction inNicaraguais contrasted with its recent findings inGeorgiav.Russia.

METHODS FOR THE IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW IN THE INTERNATIONAL COURT OF JUSTICE'S JURISPRUDENCE: 2000–2009

2011 ◽  
Vol 60 (3) ◽  
pp. 681-712 ◽  
Author(s):  
Alberto Alvarez-Jiménez
Keyword(s):  
International Law ◽  
Case Law ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
Large Measure ◽  
Customary International Law ◽  
Diplomatic Protection ◽  
International Court ◽  
International Rule

‘Sometimes the most important historical events are the non-events: the things that did not occur,’ says the British historian Niall Ferguson.1Such a statement may well describe in large measure the International Court of Justice's case-law regarding the methods for the identification of rules of customary international law during the period 2000–2009. The previous two decades had been marked by two milestones in this domain: the eighties by the judgment on the merits inNicaragua,2and the nineties by the Court's advisory opinion inNuclear Weapons.3There was, though, no single decision by the Court of comparative significance regarding methods of customary international law during the first decade of the new millennium. Further, some of the most important determinations in this domain were those in which the Court did not declare the existence of a customary international rule. However, this is not to say that the above-mentioned conclusion applies to all of the Court's jurisprudence related to customary international law. The conclusion is limited to the Court's decisions regarding the methods for the recognition of norms of this character. In fact, the Court made very important pronouncements as to the content of customary international law in many domains, such as the use of force, territorial occupation, diplomatic protection, and international humanitarian law.

Apotex Holdings Inc. and Apotex Inc. v. United States of America

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 649-689
Keyword(s):  
Due Process ◽  
Effective Means ◽  
Burden Of Proof ◽  
Minimum Standard ◽  
National Treatment ◽  
Content Type ◽  
Customary International Law ◽  
Res Judicata ◽  
Municipal Law ◽  
Minimum Standard Of Treatment

649Procedure — Amicus curiae — ICSID Arbitration (Additional Facility) Rules, Article 41(3) — Whether the non-disputing party’s submission provided assistance to the tribunal — Whether the non-disputing party’s submission addressed matters within the scope of the dispute — Whether the non-disputing party had a significant interest in the arbitration — Whether there was public interest in the subject matter of the arbitration — Whether the non-disputing party’s submission created disruption, burden or prejudice affecting the disputing parties — Whether the non-disputing party complied with disclosure requirementsProcedure — Seat of arbitration — Lex loci arbitri — Whether the tribunal was bound to select a seat of arbitration in the State of either party — Whether the tribunal should consider laws of the proposed seat of arbitration regarding arbitrator immunity or quorum requirements — Whether municipal law regarding deference to executive interpretation of treaty law in the event of judicial review of an arbitral award weighed against a proposed seat of arbitrationJurisdiction — Investment — Foreign investor — Meaning of “relating to” — NAFTA, Article 1101 — NAFTA, Article 1116 — NAFTA, Article 1117 — NAFTA, Article 1139 — Whether the challenged measure related to an investment or an investor — Whether “relating to” required a legally significant connection under municipal law or merely an effect in fact — Whether the claimants’ ability to sell other products was relevant to assessment of jurisdictionJurisdiction — Investment — Applicable law — Res judicata — NAFTA, Article 1139 — NAFTA, Article 1136(1) — Whether the concept of res judicata was applicable to NAFTA arbitrations — Whether the conditions were met for res judicata — Whether res judicata could create issue estoppel based on the reasoning of a prior award or only the operative parts of the prior award — Whether distinctions existed between the investment at issue in the prior award and the present arbitrationJurisdiction — Investment — NAFTA, Article 1139 — Intangible property — Whether a marketing authorisation was an investment made in the territory of the host StateEvidence — Burden of proof — Most-favoured-nation treatment — National treatment — Document production — Whether the evidential burden of proof can shift from the claimant to the respondent due to limited document productionNational treatment — NAFTA, Article 1102 — Whether the domestic comparators had been afforded more favourable treatment — Whether the domestic comparators were in like circumstances to the claimants650Most-favoured-nation treatment — NAFTA, Article 1103 — Whether foreign comparators had been afforded more favourable treatment — Whether foreign comparators were in like circumstances — Whether the claimants had been targeted by authorities for political reasons — Whether the conduct of the claimants distinguished their circumstances from foreign comparatorsMinimum standard of treatment — NAFTA, Article 1105 — Customary international law — Public health — Due process — Whether the minimum standard of treatment under customary international law required regulatory due process — Whether there was evidence of State practice in favour of regulatory due process forming part of the minimum standard of treatment — Whether an international tribunal should defer to regulatory bodies responsible for protecting public health — Whether regulatory conduct met the required threshold of severity and gravityMost-favoured-nation treatment — NAFTA, Article 1103 — Minimum standard of treatment — NAFTA, Article 1105 — Non-impairment — Effective means of protection — Whether importing standards of non-impairment and effective means of protection from a BIT would provide more favourable protection than the minimum standard of treatment — Whether a standard of non-impairment would have produced a different outcome for the claimants — Whether the standard of effective means of protection in judicial proceedings applied to a regulatory contextCosts — Loser pays — Whether the tribunal should apply the principle that the loser pays — Whether any party had increased costs by proposing or resisting bifurcation

scholarly journals Abuse of Diplomatic Privileges and the Balance between Immunities and the Duty to Respect the Local Laws and Regulations under the Vienna Conventions: The Recent Indian Experience

2017 ◽  
Vol 3 (2) ◽  
pp. 182-233 ◽  
Author(s):  
S. R. Subramanian
Keyword(s):  
United Nations ◽  
Special Reference ◽  
International Law ◽  
Vienna Convention ◽  
Diplomatic Relations ◽  
Legal Process ◽  
Customary International Law ◽  
Diplomatic Protection ◽  
Indian Experience ◽  
Laws And Regulations

Abstract The successful adoption of the Vienna Convention on Diplomatic Relations is hailed as the ‘landmark of the highest significance in the codification of international law’. It represented the first significant codification of any international instrument since the United Nations was established. However, despite the codification of the above rules, which is largely based on the pre-existing customary international law, the scope of diplomatic protection was not free from issues and controversies. In recent times, unfortunately, there is a growing tendency amongst the diplomats to abuse their diplomatic status to commit acts prohibited by law and still claim immunity from legal process. The States-parties also aggravate this situation by selectively interpreting the rules in their favor, ignoring the fact that reciprocity is the basis for the successful functioning of the diplomatic protection. In this connection, this paper addresses the problem of abuse of immunities and privileges and its adverse implications on the balance between immunities and the duty to respect the local laws and regulations, especially with special reference to the recent Indian experience. It explores the two recent Indian diplomatic confrontations, namely, the arrest of Devyani Khobragade and the travel ban on Daniele Mancini. Based on the study, it highlights the need for a well-balanced and equitable enforcement of the Vienna Conventions in the interest of maintenance of cordial diplomatic relations in the international community.

16 The Consequences of Treaty Violations

2015 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
State Responsibility ◽  
Vienna Convention ◽  
Customary International Law ◽  
Host State ◽  
Investment Treaty ◽  
The Law ◽  
Investment Treaties

This chapter examines the consequences of treaty violations for states and the remedies available to an investment when a host state fails to provide the treatment it has promised. It first considers the fact that most investment treaties do not specifically state the consequences of a state’s breach of treaty provisions. However, on issues not specifically covered by treaty, all investment treaties authorize tribunals to apply customary international law in making decisions, including determining compensation for investments affected by the breach of treaty provisions. The chapter then discusses the application of customary international law on state responsibility and investment treaty remedies in general, citing the Draft Articles on Responsibility of States for Internationally Wrongful Acts and the Vienna Convention on the Law of Treaties in particular. Finally there is a discussion of valuation techniques used to determine the amount of damages.due to injured investors.

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