- •In addition, an iia should display a commitment to flexibility for development. In this context, flexibility denotes:
- •In that the shorter the period between the governmental act that needs to be disclosed and the date of such disclosure, the greater the extent of the obligation. 108
- •In the Barcelona Traction case, Judge Jessup, in his Separate Opinion, 133 stated the following:
- •Igbokwe, vc, ‘Determination, Interpretation and Application of Substantive Law in Foreign Investment Treaty Arbitration’, 23 j Int'l Arb 267 (2006)
- •Igbokwe, vc, ‘Determination, Interpretation and Application of Substantive Law in Foreign Investment Treaty Arbitration’, 23 j Int'l Arb 267 (2006)
- •Very detailed, technical aspects such as sanitary and phytosanitary measures and intellectual property rights.
- •Interest and Public Purpose (Ottawa, cd Howe Institute, Policy Study 44, The Border Papers, 2006)
- •Van Hecke, g, ‘Contracts between States and Foreign Private Law Persons’, 1 epil 814 (1992)
- •Interest and Public Purpose (Ottawa, cd Howe Institute, Policy Study 44, The Border Papers, 2006)
- •Van Hecke, g, ‘Contracts between States and Foreign Private Law Persons’, 1 epil 814 (1992)
- •1. In the event of any inconsistency between this Agreement and the specific trade obligations set out in:
- •Investment treaty practice of the usa and Canada. 66 For example, the us-Uruguay bit of 25 October 2004 states, by Article 3(1):
- •In this respect, the wto Appellate Body and the International Court of Justice remind us of the principle of effectiveness in treaty interpretation. 21 It is not
- •Impairment” standards, when] (I) similar cases are (II) treated differently (III) and without reasonable justification’. 84
- •Vicu?a, f Orrego, ‘Regulatory Authority and Legitimate Expectations’, 5 Intl Law Forum, 188m 193 (2003)
- •Vicu?a, f Orrego, ‘Regulatory Authority and Legitimate Expectations’, 5 Intl Law Forum, 188m 193 (2003)
- •In order to avoid possible free-riding behaviour within the gatt framework, the Protocol to the 1992 us-Russia bit provides for a specific exception which reads as follows:
- •In addition, the distinction between breach of contract and expropriation has become relevant in the related jurisdictional debate about contract versus treaty
- •It is on the whole undisputed that the prohibition of expropriation of foreign property, both under customary international law and under applicable treaty law, covers
- •In addition, other investment relevant instruments speak of ‘expropriations or other measures affecting property rights’. 81
- •In the recent Occidental case, the arbitral tribunal confirmed that:
- •Is required is at least a ‘substantial loss of control or value’ 181 or ‘severe economic impact’. 182 The difficulty again lies in establishing the exact level of interference.
- •In Phelps Dodge , the Iran-us Claims Tribunal expressly stated that even acceptable motivations would not change its view that certain measures had an expropriatory effect:
- •In the doctrines of necessity and force majeure, if they view compliance with either doctrine to be essentially empty.
- •In the doctrines of necessity and force majeure, if they view compliance with either doctrine to be essentially empty.
- •In one of the early nafta cases—Metalclad Corporation V The United Mexican States84—the arbitral tribunal was required to address this issue, essentially as
- •5. Review and Appeal
- •5. Review and Appeal
- •In this kind of provision, when a dispute settlement forum is selected, this choice is made to the exclusion of any other (electa una via, non datur recursus ad alteram).
- •In a subsequent request for participation as amicus curiae, the tribunal found that it could not open up the hearings to the petitioners without the parties' consent:
- •In addition to the provisions of nafta, disputing parties are also bound by the arbitration rules that the investor selects. 64 When bringing a claim against a
- •In the Notes of Interpretation of Certain Chapter Eleven Provisions issued by the Free Trade Commission on 31 July 2001, the Commission declared that:
- •In determining whether to accept a written submission, the Free Trade Commission recommends in paragraph 6 that a tribunal consider the extent to which:
- •In practice, there is also no doubt whatever that users of commercial arbitration in England place much importance on privacy and confidentiality as essential features of English arbitration. 122
- •Increased transparency and public participation may impact upon the principles of confidentiality and privacy that have traditionally been respected in international
- •Is real, and experience shows that facts relating to such relationships should be disclosed even when they arise in the course of the arbitration and not at the time of appointment.
- •Investment disputes in respect of the implementation of the provisions of this Law shall be settled in a manner to be agreed upon with the investor, or within the framework of the
- •In Ronald s Lauder V The Czech Republic , 69 the bit between the Czech Republic and the usa provided as follows: ‘At any time after six months from the date on
- •Vandevelde, kj, United States Investment Treaties: Policy and Practice (Deventer, Netherlands, Kluwer Law and Taxation, 1992)
- •Vandevelde, kj, United States Investment Treaties: Policy and Practice (Deventer, Netherlands, Kluwer Law and Taxation, 1992)
- •It will be recalled that under Article 25(2)(b) a ‘juridical’ national is:
- •In Tokios , the tribunal was faced with an objection to jurisdiction founded on the argument that the control test was the appropriate test for the purposes of Article 25.
- •Vicu?a, Francisco Orrego, ‘Changing Approaches to the Nationality of Claims in the Context of Diplomatic Protection and International Dispute Settlement’, 15 icsid Rev-filj 340 (2000)
- •Vicu?a, Francisco Orrego, ‘Changing Approaches to the Nationality of Claims in the Context of Diplomatic Protection and International Dispute Settlement’, 15 icsid Rev-filj 340 (2000)
- •In the end, however, the tribunal did not apply the clause and therefore it considered that there was no need to express any definitive conclusion as to whether the
- •In Eureko V Poland , 106 the Tribunal saw and addressed this problem briefly when it concluded:
- •In the cme case, the tribunal quoted the tribunal in The Mox Plant Case , 29 which stated that:
- •Identity of Parties
- •Interim or Injunctive Relief
- •Ila Committee on International Commercial Arbitration, Final Report on ‘Lis Pendens and Arbitration’(Toronto, 2006)
- •Ila Committee on International Commercial Arbitration, Final Report on ‘Lis Pendens and Arbitration’(Toronto, 2006)
- •It would be within the logic of the npv/dcf approach to disregard the fact that an investment may only be in its early stages. In these early stages, there will always
- •In conventional international law, in particular in icj jurisprudence, equitable circumstances play a role not only, for example, in boundary determinations, 231 but
- •Investor of the other party to the treaty concerning inter alia an alleged breach of the treaty itself.
- •If the award is annulled, the dispute may be decided by a new arbitration tribunal constituted in accordance with section 2 of Chapter IV of the Treaty. 40
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (icsid Secretariat, Discussion Paper, 22 October 2004)
- •Veeder, VV, ‘The Necessary Safeguards of an Appellate System’, in f Ortino, a Sheppard, and h Warner (eds), Investment Treaty Law: Current Issues—Vol I (London, biicl, 2006)
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (icsid Secretariat, Discussion Paper, 22 October 2004)
- •Veeder, VV, ‘The Necessary Safeguards of an Appellate System’, in f Ortino, a Sheppard, and h Warner (eds), Investment Treaty Law: Current Issues—Vol I (London, biicl, 2006)
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (icsid Secretariat, Discussion Paper, 22 October 2004)
- •Veeder, VV, ‘The Necessary Safeguards of an Appellate System’, in f Ortino, a Sheppard, and h Warner (eds), Investment Treaty Law: Current Issues—Vol I (London, biicl, 2006)
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (icsid Secretariat, Discussion Paper, 22 October 2004)
- •Veeder, VV, ‘The Necessary Safeguards of an Appellate System’, in f Ortino, a Sheppard, and h Warner (eds), Investment Treaty Law: Current Issues—Vol I (London, biicl, 2006)
- •Van den Berg, aj, ‘Some Recent Problems in the Practice of Enforcement under the New York and icsid Conventions’, 2 icsid Rev-filj 439 (1987)
- •Van den Berg, aj, ‘Some Recent Problems in the Practice of Enforcement under the New York and icsid Conventions’, 2 icsid Rev-filj 439 (1987)
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (Discussion Paper, 22 October 2004)
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (Discussion Paper, 22 October 2004)
- •In the context of investment arbitration, there is not necessarily always an arbitration agreement in
Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (icsid Secretariat, Discussion Paper, 22 October 2004)
Legum, B, ‘Visualizing an Appellate System’, in F Ortino, A Sheppard, and H Warner (eds), Investment Treaty Law: Current Issues—Vol I (London, BIICL, 2006)
OECD, Proposals for Improving Mechanisms for the Resolution of Tax Treaty Disputes (Paris, OECD, 2006)
end p.1169
Qureshi, A (ed), Perspectives in International Economic Law (The Hague, Kluwer Law International, 2002)
__ , ‘Sovereignty Issues in the WTO Dispute Settlement—A “Development Sovereignty” Perspective’, in W Shan (ed), Redefining Sovereignty (Oxford, Hart Publishing, 2007)
Schneider, M, ‘Does the WTO Confirm the Need for a More General Appellate System in Investment Disputes?’, in F Ortino, A Sheppard, and H Warner (eds), Investment Treaty Law: Current Issues—Vol I (London, BIICL, 2006)
Tams, C, ‘Is There a Need for an ICSID Appellate Structure’, Paper delivered at Conference on ICSID held at Frankfurt University in Frankfurt (April 2006)
UNCTAD, Dispute Settlement (Investor-State) (Geneva, United Nations, 2003)
__ , World Investment Report (Geneva and New York, United Nations, 2003)
Veeder, VV, ‘The Necessary Safeguards of an Appellate System’, in f Ortino, a Sheppard, and h Warner (eds), Investment Treaty Law: Current Issues—Vol I (London, biicl, 2006)
Wellens, K, Economic Conflicts and Disputes before the World Court (1922–1995): A Functional Analysis (The Hague and Boston, Kluwer Law International, 1996) Footnotes 87 Brown, above n 82 at 28. 1 See eg James Crawford, ‘Is There a Need for an Appellate System?’ in F Ortino, A Sheppard, and H Warner (eds) Investment Treaty Law: Current Issues—Vol I (London, BIICL, 2006). 2ICSID Secretariat, ‘Possible Improvements of the Framework for ICSID Arbitration’, Discussion Paper (22 October 2004). 3 See eg the 7 May 2004 Conference organized by the British Institute of International and Comparative Law in London on the subject of the feasibility and implications of the establishment of a mechanism for the hearing of appeals from investment. The conference proceedings have been published in Ortino et al, above n 1, and Conference on ICSID held at the University of Frankfurt in April 2006. 4 See generally, Ortino et al, above n 1. 5 Burton Legum, ‘Visualizing an Appellate System’ in Ortino et al, above n 1 at 121. 6 See eg Doak Bishop, ‘The Case for an Appellate Panel and its Scope of Review’, in Ortino et al, above n 1 at 15. 7 ICSID Discussion Paper, above n 2 at para 6. 8 See eg VV Veeder QC, ‘The Necessary Safeguards of an Appellate System’ in Ortino et al, above n 1 at 9–11; and Christian J Tams, ‘Is There a Need for an ICSID Appellate Structure’, Paper delivered at Conference on ICSID held at Frankfurt University, April 2006. 9 See eg MD Goldhaber, ‘Wanted: A World Investment Court’, The American Lawyer/Focus Europe (summer 2004), see <http://www.americanlawyer.com/focuseurope/investmentcourt04.html>. 10 See Bishop, above n 6 at 17. 11 See Veeder, above n 8 at 9. Also see Schreuer and Weiniger, ‘A Doctrine of Precedent?’ Ch 30 this volume. 12 See ICSID Discussion Paper, above n 2, at para 21. 13 Bishop, above n 6 at 15. 14 See Annex 10-F of the Central American FTA. 15ICSID Discussion Paper, above n 2 at para 20. 16 Ibid at para 21. 17 See UNCTAD, World Investment Report (Geneva and New York, United Nations, 2003). 18 See OECD, Proposals for Improving Mechanisms for the Resolution of Tax Treaty Disputes (Paris, OECD, 2006). 19 ICSID Discussion Paper, above n 2 at para 21. 20 Ibid, Annex para 1. 21 Ibid at para 3. 22 Ibid . 23 Ibid . 24 Ibid . 25 Ibid at para 6. 26 Ibid at para 7. 27 Ibid at para 9. 28 Ibid at para 10. 29 See US—Import Prohibition of Certain Shrimp and Shrimp Products, DS58/AB/R, circulated 12 October 1998. 30Doha Declaration (14 November 2001) at para 22: ‘In the period until the Fifth Session, further work in the Working Group on the Relationship Between Trade and Investment will focus on the clarification of: … consultation and the settlement of disputes between members. Any framework should reflect in a balanced manner the interests of home and host countries, and take due account of the development policies and objectives of host governments as well as their right to regulate in the public interest. The special development, trade and financial needs of developing and least-developed countries should be taken into account as an integral part of any framework, which should enable members to undertake obligations and commitments commensurate with their individual needs and circumstances. Due regard should be paid to other relevant WTO provisions. Account should be taken, as appropriate, of existing bilateral and regional arrangements on investment.’ 31 Ibid . 32 See ‘Consultation and Dispute Settlement Between Members’, Note by the WTO Secretariat WT/WGTI/W/134 (7th August 2002) at paras 3 and 4. 33 Paper submitted by India to Working Group on the Relationship between Trade and Investment (October 2002) at para 4. 34 See A Qureshi, ‘Sovereignty Issues in the WTO Dispute Settlement—A “Development Sovereignty” Perspective’ in W Shan (ed), Redefining Sovereignty (Oxford, Hart Publishing, 2007). 35 See eg Michael Schneider, ‘Does the WTO Confirm the Need for a More General Appellate System in Investment Disputes?’ in Ortino et al, above n 1 at 103. 36 See generally, WT/WGTI/W/134, above n 32. 37 See AV Ganeson, ‘Strategic Options Available to Developing Countries with Regard to a Multilateral Agreement on Investment’ UNCTAD Paper No 134 (1998). 38WT/WGTI/W/134 (7th August 2002), above n 32 at para 5. 39 Ibid . 40WT/DS308/AB/R. 41 Ibid . 42 See WT/WGTI/W/134 (7th August 2002), above n 32, Part V. 43 Ibid at para 76. 44 It should be noted, however, that if the arbitration procedure of Art 25 of the DSU is used, the arbitration report cannot be appealed. 45UNCTAD, Dispute Settlement (Investor-State), UNCTAD Series on Issues in International Investment Agreements (Geneva, United Nations, 2003). 46 See Asif H Qureshi (ed), Perspectives in International Economic Law (The Hague, Kluwer Law International, 2002) at ch 1 (on which this section is based). 47 eg the Corfu Channel Case [Merits] ICJ (1949); and the Case Concerning Right of Passage Over Indian Territory [Merits] ICJ (1960). 48 See eg North Sea Continental Shelf Cases ICJ (1967); Fisheries Jurisdiction Case ICJ (1974); Aegean Sea Continental Shelf Case ICJ (1978); Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area ICJ (1984); Case Concerning certain Phosphate Lands in Nauru ICJ (1992). 49 See K Wellens, Economic Conflicts and Disputes before the World Court (1922-1995): A Functional Analysis (The Hague and Boston, Kluwer Law International, 1996) at 62 where the author lists ILA, ICAO, UNESCO, IMO, IMF, UNIDO IDA, and IFC. 50 eg Case of the Free Zones of Upper Savoy & the District of Gen PCIJ (1929), (1930), and (1931). 51Ahmadou Sadio Diallo [Republic of Guinea v Democratic Republic of the Congo] ICJ Press Communiqu? 2000/28. 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