Pleas of illegality and the application of domestic law in investment treaty arbitration

2020 ◽  
Vol 9 (1) ◽  
pp. 96-116
Author(s):  
Giorgio Risso ◽  
Anna Chiara Amato
Keyword(s):  
Case Law ◽  
State Law ◽  
Host State ◽  
Investment Treaty ◽  
Alternative Approach ◽  
Domestic Law ◽  
Investment Treaty Arbitration

It is generally accepted that State Parties can rely on ‘in accordance with the host State law’ clauses (or legality clauses) with a view to curtailing arbitral tribunals' jurisdiction to disputes arising from lawful investments. Given the increasing attention dedicated to legality in modern investment treaty practice, it is likely that ‘in accordance with the host State law’ clauses will continue playing an important role in arbitration proceedings. In light of the foregoing, this article examines how arbitral tribunals interpret and apply domestic law when dealing with jurisdictional challenges based on pleas of illegality. Drawing upon the limitations to legality clauses elaborated by the case law, the authors demonstrate that tribunals tend to adopt an ‘international’ approach in interpreting and applying domestic law. The authors explain why this international approach is fundamentally flawed and suggest an alternative approach to use in future disputes.

Revisiting the risk of undesired appeal in investment treaty arbitration: is deference to the tribunal’s award still less likely in the ICSID context?

2021 ◽  
Author(s):  
Alexander J Marcopoulos
Keyword(s):  
Ad Hoc ◽  
De Novo ◽  
Case Law ◽  
Court Decisions ◽  
Investment Treaty ◽  
Investment Treaty Arbitration ◽  
The Way

Abstract Although they are generally not subject to appeal the way court decisions typically are, investor-State arbitration awards can be reviewed—and potentially set aside—in a number of ways and on various bases. In this respect, investor-State arbitration under the auspices of ICSID is notable in that it provides a self-contained system for the review of arbitral awards by ICSID-appointed ad hoc committees. In the period 2000–2010, this feature of the ICSID system attracted criticism as ad hoc committees appeared to be overreaching in their review of arbitral awards, exercising less deference to the tribunal’s decisions than what would be expected given the narrow bases for setting aside an award under the ICSID Convention. This article revisits the issue 10 years later, exploring whether ICSID practice has evolved in these areas and whether there remains a greater risk of unexpected de novo review by ICSID ad hoc committees. Looking at recent ICSID annulment decisions as well as the case law of arbitration-friendly jurisdictions, the article concludes that although the ICSID ad hoc committees have recently shown more restraint, they continue to interfere more with the tribunal’s reasoning and decisions than many courts exercising the same function.

THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS AND INVESTMENT TREATY ARBITRATION: A LIMITED RELATIONSHIP

2015 ◽  
Vol 64 (4) ◽  
pp. 905-933
Author(s):  
Jarrod Hepburn
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Applicable Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Domestic Law ◽  
Investment Treaty Arbitration

AbstractThe UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers the use of the Principles by investment tribunals on questions of both domestic law and international law. It suggests that reference to the Principles can play an important legitimating role on questions of domestic law, but that this should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

Part III Guide to Key Jurisdictional Issues, 17 Counterclaims in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Clodfelter Mark A ◽  
Tsutieva Diana
Keyword(s):  
International Trade ◽  
United Nations ◽  
Case Law ◽  
The Core ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Treaty Arbitration

The last decade has seen an increase in the efforts of respondent States to have their own claims against investor-claimants heard in investor-State proceedings commenced against them. The investment arbitration case law has revealed a host of legal and practical difficulties in admitting counterclaims. Most of these stem from the core requirement that parties must consent to submit their differences to investment arbitration. The applicable arbitration rules have also been cited as a bar to counterclaims. This chapter explores the functionality of applicable procedural rules as bases for an investment tribunal’s authority to hear counterclaims under the two main investment law regimes: the International Centre for Settlement of Investment Dispute (ICSID) Convention and Arbitration Rules and the United Nations Commission on International Trade Law Arbitration Rules. A review of the milestone cases under these two regimes reveals the major problems that have arisen.

The Legal Basis for Bilateral and Multilateral Police Deployments

2011 ◽  
Vol 15 (1-2) ◽  
pp. 7-38 ◽  
Author(s):  
James Watson ◽  
Mark Fitzpatrick ◽  
James Ellis
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal Framework ◽  
State Law ◽  
Legal Basis ◽  
The Rule Of Law ◽  
Host State ◽  
Legal Regimes ◽  
Domestic Law

This paper recognises the complexity of the legal framework in which international police deployments take place. The personnel, and often the mission itself, are subject to a number of different legal regimes: international law, host State law and sending State law. After briefly discussing the nature and purpose of overseas police deployments, the paper identifies the legal regimes applicable to such deployments and discusses the significance of international and domestic law to police deployments. Ultimately, this paper argues that compliance with all applicable legal regimes is essential to ensure the rule of law on overseas police deployments.

Abuse of Process: An Impossible Dialogue Between ICJ and ICSID Tribunals?

2020 ◽  
Vol 11 (1) ◽  
pp. 47-68
Author(s):  
Carlotta Ceretelli
Keyword(s):  
Case Law ◽  
Criminal Proceedings ◽  
Present Contribution ◽  
International Courts ◽  
International Convention ◽  
Investment Treaty ◽  
Treaty Shopping ◽  
International Court ◽  
Improper Use ◽  
Investment Treaty Arbitration

Abstract In the backdrop of the proliferation of international courts, the abuse of process revealed its protean nature. Still a foreigner in the International Court of Justice’s (ICJ or the Court) jurisprudence, in investment treaty arbitration it has been shaped in different ways to face multiple forms of the improper use of judicial system. Recently, the cases Immunities and Criminal Proceedings and Application of the International Convention on the Elimination of All Forms of Racial Discrimination have offered two precious occasions of dialogue between ICJ and the tribunals established under the auspices of the International Centre for the Settlement of Investments Disputes (ICSID). Once compared the arguments made on the matter of abuse of procedure in the cases at hand with ICSID case law on treaty shopping and parallel proceedings, the scope of the present contribution will be to understand whether the abuse of process can really become the protagonist of a fruitful interaction between judicial organs.

Environmental Claims by States in Investment Treaty Arbitration

2020 ◽  
Vol 5 (1) ◽  
pp. 412-425
Author(s):  
Gaurav Sharma
Keyword(s):  
International Law ◽  
Paradigm Shift ◽  
Public Discourse ◽  
Critical Role ◽  
Case Law ◽  
New Era ◽  
Investment Treaty ◽  
Local Resources ◽  
Investment Treaty Arbitration

Recent years have witnessed a number of counterclaims by State parties in investment treaty arbitrations based on environmental concerns and the need to protect local resources and safeguard the associated human rights of local communities. This article charts the development of the case law in this context, starting with the Urbaser v. Argentina award of December 2016, before examining its impact on the cases that followed in its wake, notably including the respective 2017 and 2018 awards in Burlington v. Ecuador and Aven v. Costa Rica. It concludes by considering whether these recent cases mark the beginning of a new era of international law claims which finds a parallel in the broader paradigm shift in public discourse on the critical role of all stakeholders in the conservation of the environment, and which may one day result in investors facing standalone claims as the respondent in future investment treaty claims brought by States.

Illegal Investments in Investment Treaty Arbitration

2012 ◽  
Vol 11 (2) ◽  
pp. 281-323 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
International Investment ◽  
Foreign Investor ◽  
Considerable Potential ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law ◽  
Investment Treaty Arbitration

Abstract Investment treaty tribunals on numerous occasions have had to deal with the impact of breaches of domestic law by a foreign investor on the investment’s protection under an international investment treaty. In this context, tribunals had to interpret different “in accordance with host State law”-clauses contained in investment treaties, but also dealt with the effect of illegality in the absence of such clauses. The present article traces this increasingly complex jurisprudence and frames it as an issue of the relationship between domestic law and international investment law. Although different approaches exist, most importantly as to the effect of domestic illegality on the jurisdiction of investment treaty tribunals, the article suggests that there is considerable potential for convergence in arbitral jurisprudence, thus unveiling the contours of a doctrinal structure for dealing with illegal investments in international investment law and arbitration.

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