Distinction between Treaty and Contract The Principle of Proportionality in State Contractual Actions in Investment Arbitration

2013 ◽  
pp. 1019-1054
Author(s):  
Srikanth Hariharan
Keyword(s):  
International Law ◽  
General Principle ◽  
Breach Of Contract ◽  
Host State ◽  
Investment Arbitration ◽  
International Obligation ◽  
Ex Ante ◽  
Principle Of Proportionality ◽  
Contractual Rights ◽  
Discretionary Powers

This paper argues the possibility of application of principle of proportionality, as a general principle of international law, for actions of the Host-State in pursuance of the contract with the investor, without abrogating the distinction between contract and treaty-based rights and obligations. The task would be to probe whether breach of contract with investor entails an international obligation of balancing the excess of exercise of contractual authority by the State with the investor’s contractual rights and delimit the ex ante discretionary powers of Host-State, which principle of proportionality seeks to promote.

Good Faith and the Exercise of Treaty-based Discretionary Powers

2020 ◽  
pp. 259-273
Author(s):  
Ulf Linderfalk
Keyword(s):  
International Law ◽  
Good Faith ◽  
International Organization ◽  
Discretionary Power ◽  
International Obligation ◽  
International Court ◽  
The Law ◽  
Legal Consequences ◽  
Arbitrary Fashion ◽  
Discretionary Powers

This chapter addresses the significance of the requirement of good faith laid down in common Article 26 of the 1969 and 1986 Vienna Conventions on the Law of Treaties. Whereas colleagues have repeatedly stressed the foundational value of the concept of good faith in the law of treaties, much remains to be said about its particular legal consequences. Commenting upon the significance of good faith generally, international lawyers typically emphasize the importance of rationality and reason for the application of international law: when you hold an international right, or owe an international obligation, you are required to act in a reasonable and non-arbitrary fashion. As this chapter will rather put it, good faith stands for the idea of international law as a purposive endeavour. So interpreted, not only does good faith form, implicitly, a part of every treaty in force, but it also provides an exception to any treaty rule that confers a discretionary power, whether on a state, on an international court or tribunal, or an organ of an international organization. This chapter explores the further implications of this idea for the application of treaties generally and for the concept of international law.

“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.

Judicial Review and Investigations

2021 ◽  
pp. 201-222
Author(s):  
Amichai Cohen ◽  
David Zlotogorski
Keyword(s):  
International Law ◽  
Judicial Review ◽  
Humanitarian Law ◽  
Policy Review ◽  
Specific Policy ◽  
Ex Post ◽  
Alternative Approach ◽  
Ex Ante ◽  
Principle Of Proportionality ◽  
The Military

This chapter focuses on the external review of the application of the principle of proportionality. The chapter first considers judicial review of the application of proportionality. Two kinds of review are compared: the ex ante review applied by courts before an action is taken and the ex post review, including criminal investigations. The authors suggest that both kinds of judicial review are ineffective ways to apply the principle of proportionality. An alternative approach is then considered: creating permanent Humanitarian Law Commissions, with the authority to investigate possible violations of the principle of proportionality. Humanitarian Law Commissions could monitor the propriety of criminal or disciplinary investigations conducted by the military; but, more importantly, they could also engage in policy review—that is, they could review ex post whether a specific policy or operation was conducted in accordance with international law, and issue recommendations for future military actions. Such recommendations may help clarify for the military some of the more complex norms they are required to implement.

The Emergence of the Concept of ‘General Principle of International Law’ in Investment Arbitration Case Law

2020 ◽  
Vol 11 (2) ◽  
pp. 194-216
Author(s):  
Patrick Dumberry
Keyword(s):  
International Law ◽  
Empirical Analysis ◽  
General Principle ◽  
Burden Of Proof ◽  
Case Law ◽  
Res Judicata ◽  
Investment Arbitration ◽  
The Empirical Analysis ◽  
Further Development ◽  
The Way

Abstract This article examines the concept of ‘general principle of international law’ and the way it has so far been used by tribunals in investment cases. It will first outline the nature and meaning of these principles emerging on the international plane and distingue them from other general principles grounded in States’ domestic laws. The empirical analysis of four general principles (burden of proof, estoppel, res judicata and abuse of rights) shows that many tribunals have explicitly recognized them as general principles of international law. The reasoning of other tribunals, the expressions they have used and the international law material they have referred to strongly suggest that they have also come to the same conclusion. Finally, this article considers the reasons why this concept is important to the further development of investment arbitration.

Risk Assessment vs. Right to Privacy: The Access to Health Information on the Insurance Candidate through Questionnaires and the Right to Privacy

2013 ◽  
Vol 20 (1) ◽  
pp. 63-78
Author(s):  
Maria Inês de Oliveira Martins
Keyword(s):  
International Law ◽  
Health Information ◽  
Personal Information ◽  
Relevant Information ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Access To Health ◽  
Health Related ◽  
Principle Of Proportionality ◽  
The Right

Abstract The need of private insurers for information on the candidate’s health risks is recognized by the law, which places pre-contractual duties of disclosure upon the candidates. When the risks are influenced by health factors, e.g. in the case of life- and health insurances, it implies the provision of health information by the candidates, who thus voluntarily limit their right to privacy. This consent, however, often happens in a context of factual coercion to contract. Next to this, from a legal standpoint, the collection of personal information must respond to the principle of proportionality. Against this background, this article assesses the compatibility of questionnaire techniques that rely on open-ended health related questions with the right to privacy, as protected by Portuguese and international law. It then analyses the extent of pre-contractual duties of disclosure as defined by the Portuguese Insurance Act, which requires the candidate to volunteer all the relevant information independently of being asked for it. In doing so, the article also refers to some other European countries. It concludes that the relevant Portuguese legislation is incompatible both with Portuguese constitutional law and with international law.

Requirements for Amicus Curiae Participation in International Investment ArbitrationA Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15

2013 ◽  
Vol 12 (3) ◽  
pp. 365-390 ◽  
Author(s):  
Christian Schliemann
Keyword(s):  
International Law ◽  
International Investment ◽  
Recent Attempt ◽  
Arbitral Tribunal ◽  
Amicus Curiae ◽  
Legal Rules ◽  
Investment Arbitration ◽  
Legal Standard ◽  
Investment Law

Abstract The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.

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