“You Cannot Lose What You Never Had”: The Law Applicable to Property Determinations in ICSID Arbitration

2018 ◽  
Vol 17 (1) ◽  
pp. 271-285 ◽  
Author(s):  
Laura Yvonne Zielinski
Keyword(s):  
International Law ◽  
Case Law ◽  
Bilateral Investment Treaties ◽  
Applicable Law ◽  
Host State ◽  
The Law ◽  
Investment Treaties ◽  
Domestic Law ◽  
Discretionary Powers

Abstract ICSID arbitration is witnessing a debate over the competing spheres of application between host State and international law: Under the second sentence of Article 42(1) of the ICSID Convention (and under similarly worded applicable law provisions contained in investment contracts or bilateral investment treaties), arbitral tribunals possess large discretionary powers over the decision of which law to apply to which aspect of a dispute. However, the recent partial annulment of the Mobil v. Venezuela award, on the basis of the original tribunal’s manifest failure to apply domestic law to certain aspects of the case, redefines the contours of this discretion by requiring the application of domestic law to proprietary determinations of investments. This article reviews the different approaches to the dichotomy between domestic and international law and the tribunals’ discretionary powers in this respect, and analyzes the limits imposed in the field of property determinations by the case law.

The International Tribunal for the Law of the Sea and General International Law

2007 ◽  
Vol 22 (3) ◽  
pp. 351-367 ◽  
Author(s):  
Michael Wood
Keyword(s):  
International Law ◽  
Case Law ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Applicable Law ◽  
The Law

AbstractAfter addressing some preliminary points, the presentation first stresses the importance of distinguishing clearly between jurisdiction and applicable law. Then it considers how a court or tribunal whose jurisdiction ratione materiae is largely con fined to the interpretation and application of a particular treaty may nevertheless refer to general international law. The author suggests six possible ways in which recourse may be had to general international law and analyzes the case-law of the International Tribunal for the Law of the Sea in that regard. He then points out the relevance of expertise in general international law for the composition of the Tribunal. By way of conclusion, the author suggests that when any court or tribunal acting under a limited conferral of jurisdiction has recourse to general international law, it should—in the interest of transparency and so as to avoid the appearance of an excess of jurisdiction— explain the basis on which it is doing so. In his view, the Tribunal has made an important contribution to the law of the sea and to certain issues of general international law while acknowledging that the law of the sea can only be properly understood within the context of international law as a whole.

The Legality of the Killing of Osama bin Laden

2013 ◽  
Vol 107 ◽  
pp. 47-51 ◽  
Author(s):  
John Cerone
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Major Obstacle ◽  
Applicable Law ◽  
The Law ◽  
Osama Bin Laden ◽  
Extraterritorial Jurisdiction ◽  
Domestic Law

In assessing the legality of the killing of Osama bin Laden one is reminded of a saying about the situation in Lebanon. If you think you understand it, it has not been properly explained to you.Of course, one major obstacle is that we do not have all the facts. However, we also do not have all the law.The complexity of analyzing the legality of the killing begins with the threshold issue of applicable law. Is the conduct to be analyzed according to domestic law or international law? If domestic law, then which country’s domestic laws are applicable? Certainly that of the United States and Pakistan would be applicable. Saudi law might also apply (e.g., on the basis of nationality), in addition to the laws of those countries that have another basis under their domestic law for exercising extraterritorial jurisdiction (e.g., on the universality principle).

Internationally Wrongful Acts in Domestic Courts

2007 ◽  
Vol 101 (4) ◽  
pp. 760-799
Author(s):  
André Nollkaemper
Keyword(s):  
International Law ◽  
Case Law ◽  
International Obligation ◽  
Domestic Courts ◽  
International Responsibility ◽  
The Law ◽  
Domestic Law ◽  
Domestic Case

This article explores the relevance of the law of international responsibility to the practice of domestic courts. In addition to proposing analytical distinctions that allow us to systematize and differentiate domestic case law pertaining to international responsibility, the article essentially advances three arguments. First, in certain circumstances domestic courts may find that a breach of an international obligation by the forum state constitutes an internationally wrongful act. Principles of international responsibility may be applicable to such a wrong. Second, domestic courts may contribute to the implementation of the international responsibility of states by ensuring that principles of cessation and reparation are given effect. Third, international law leaves much leeway to states and their courts in applying principles of international responsibility in a specific domestic legal and factual context. The application of such principles will be colored by their interaction with domestic law and will vary among states.

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.

11 Treatment of State Obligations (the ‘Umbrella Clause’)

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
The Other ◽  
Host Countries ◽  
Foreign Investors ◽  
International Treaty ◽  
Host State ◽  
Treaty Obligation ◽  
State Obligations ◽  
Investment Treaties ◽  
Domestic Law

This chapter explores umbrella clauses. In order to protect investor–state commitments and obligations from obsolescence, many investment treaties contain a clause defining the treatment that the host state will give to obligations it has made to investors or investments covered by the treaty. Known commonly as ‘umbrella clauses’, such provisions generally stipulate that ‘each Contracting Party shall observe any obligation it may have entered into with regard to the investments of investors of the other Contracting Party’. The umbrella clause creates an exception to a well-established principle of international law concerning state contracts with, and obligations to, foreign investors. Its intent is to impose an international treaty obligation on host countries that requires them to respect obligations they have entered into with respect to investments protected by the treaty. This places such obligations under the protective umbrella of international law, not just the domestic law that would otherwise normally apply exclusively. The chapter then looks at the formulations and application of the umbrella clause.

8 Settlement Of Investor–State Disputes

2009 ◽  
Author(s):  
Gallagher Norah ◽  
Shan Wenhua
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Ad Hoc ◽  
Bilateral Investment Treaties ◽  
International Arbitration ◽  
Applicable Law ◽  
Host State ◽  
Different Types ◽  
Investment Treaties ◽  
Made In

The dispute-resolution provisions in bilateral investment treaties (BITs) have become the “ultimate” investor protection in modern investment treaties. This chapter reviews the different types of dispute-resolution provisions of the Chinese BITs. It first looks at the choice of arbitrations made in its treaties, ICSID, ad hoc, or other arbitration rules. It then continues to review the two main types of investor-state dispute-resolution clauses in China's BITs: restrictive—where the BIT permits international arbitration of disputes on the amount of compensation for expropriation only; and more liberal or expansive—which allows access to international arbitration for all disputes between the investor and host state. It then considers a topic of particular interest right now for investors and potential investors in China: the application of the MFN clause to dispute resolution. Finally, it looks at the applicable law to dispute settlement and the requirement to exhaust domestic remedies.

scholarly journals Il Regolamento (UE) n. 1259/2010 sulla legge applicabile al divorzio e alla separazione personale nella recente prassi giurisprudenziale italiana = Recent Italian case-law concerning EU Regulation on the law applicable to divorce and legal separation

2018 ◽  
Vol 10 (1) ◽  
pp. 568 ◽  
Author(s):  
Federica Falconi
Keyword(s):  
European Union ◽  
International Law ◽  
Case Law ◽  
Private International Law ◽  
The European Union ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Italian Case ◽  
The Law ◽  
Article 5

Riassunto: Il presente contributo propone una breve analisi della prassi applicativa italiana in relazione al regolamento (UE) n. 1259/2010 in tema di legge applicabile al divorzio e alla separazione personale. Solo in un ristretto numero di casi le parti si sono avvalse della facoltà di optio legis loro concessa dall’art. 5 del regolamento, accordando preferenza alla legge nazionale comune. Più spesso, in mancanza di un accordo delle parti, la legge applicabile è individuata in applicazione dell’art. 8: ciò conduce nella maggior parte delle ipotesi all’applicazione della legge dello Stato di residenza abituale dei coniugi, con il risultato di favorire l’integrazione sociale e ripristinando altresì la corrispondenza tra forum e jus.Parole chiave: Regolamento (UE) n. 1259/2010, divorzio e separazione personale, conflitti di leggi, diritto internazionale privato dell’Unione europea, optio legis, legge applicabile in mancanza di scelta.Abstract: This article offers a brief analysis of the Italian case-law concerning Regulation (EU) No 1259/2010 on the law applicable to divorce and legal separation. Only in a few cases, spouses have chosen the applicable law according to Article 5, by designating the law of their State of nationality. More frequently, absent a valid choice by the spouses, the law applicable to divorce or legal separation has been determined in accordance with Article 8: this usually leads to the application of the law of the country where the spouses are habitually resident, thereby promoting social integration and also restoring the correspondence between forum and jus.Keywords: Regulation (EU) No 1259/2010, divorce and legal separation, conflict-of-laws rules; private international law of the European Union, choice of law agreement, applicable law in the absence of a choice by the parties.

Applicable Law in Investment Agreements

2019 ◽  
Author(s):  
Catharine Titi
Keyword(s):  
International Law ◽  
Relative Weight ◽  
Applicable Law ◽  
Host State ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
Municipal Law ◽  
The Law ◽  
Default Rules

The law applicable to investment disputes is of paramount importance because it can be a determinant of the outcome of the dispute. Disputing parties can choose the law applicable to their dispute. This derives from the principle of party autonomy in international arbitration. The parties’ choice of the applicable law often takes place in tandem with or as part of their consent to arbitration. Treaty partners can insert a clause on applicable law in the investment treaty or indirectly incorporate the provisions on applicable law of various arbitration rules, such as when offering arbitration according to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) or the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). When an investor accepts the host state’s offer to arbitrate, it also accepts its choice of applicable law as expressed in the treaty and/or in the arbitration rules under which the investor selects to bring the dispute. There are also other ways in which disputing parties can choose the applicable law. For instance, their choice of applicable law can be crystallized in a compromis drafted once a dispute has arisen. In the absence of an express choice of applicable law, the latter is determined on the basis of the default rules found in the arbitration rules which govern the dispute. As an illustration, Article 42(1) of the ICSID Convention provides that, if the parties do not agree on the applicable law, the tribunal shall apply the law of the host state, including its conflict of law rules, “and such rules of international law as may be applicable.” Debates about the identification of the applicable law have often revolved around the relative weight to be accorded to the municipal law of the host state and to international law. Sometimes the tribunal’s failure to apply primarily the investment treaty has been at the heart of debate. Failure to apply the proper law constitutes a ground for annulment under the ICSID Convention (as manifest excess of powers). In non-ICSID Convention arbitration, awards can also be set aside for failure to apply the applicable law (e.g., when the tribunal is perceived to overstep its mandate). However, such annulment or set-aside concerns the effect of failure to apply the applicable law. This is a separate issue and as such it is not covered in the present article.

Judicial Notice and Reception Theory: Thoughts on the Contribution of Ronald St. John Macdonald

2003 ◽  
Vol 40 ◽  
pp. 251-264
Author(s):  
Gibran van Ert
Keyword(s):  
International Law ◽  
Case Law ◽  
Theoretical Framework ◽  
Recent Case ◽  
Reception Theory ◽  
Expert Evidence ◽  
The Law ◽  
The Relationship ◽  
Domestic Law

SummaryOn the occasion of a conference in honour of Ronald St. John Macdonald, the author revisits Macdonald’s important 1974 article “The Relationship between International Law and Domestic Law in Canada.” Macdonald’s discussion of the judicial notice of international law by Canadian courts is considered in light of recent case law. In particular, the practice of international lawyers giving expert evidence on international law is criticized as inconsistent with the doctrine of judicial notice. Finally, the author reflects on Macdonald’s view that a theoretical framework is needed to explain the reception of international law in the law of Canada

scholarly journals The Principle of Directive-Compliant Development of the Law and the Contra Legem Limit

2020 ◽  
Vol 16 (4) ◽  
pp. 465-488
Author(s):  
Thomas M.J. Möllers
Keyword(s):  
Case Law ◽  
Third Party ◽  
Broad Term ◽  
Legal Texts ◽  
Classical Methodology ◽  
The Law ◽  
Legal Methodology ◽  
The Relationship ◽  
Further Development ◽  
Domestic Law

AbstractThe Europeanisation of domestic law calls for a classical methodology to ‘update’ the established traditions of the law. The relationship between European directives and national law is difficult, since directives do apply, but European legal texts need to be implemented into national law. Whilst directives are not binding on private individuals, there is no direct third-party effect, but only an ‘indirect effect’. This effect is influenced by the stipulations of the ECJ, but is ultimately determined in accordance with methodical principles of national law. The ECJ uses a broad term of interpretation of the law. In contrast, in German and Austrian legal methodology the wording of a provision defines the dividing line between interpretation and further development of the law. The article reveals how legal scholars and the case-law have gradually shown in recent decades a greater willingness to shift from a narrow, traditional boundary of permissible development of the law to a modern line of case-law regarding the boundary of directive-compliant, permissible development of the law.

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