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Part VI The Post-Award Phase, 30 A Practical Guide: Research Tools in International Investment Law 第六部分:评奖后阶段，30，实用指南:国际投资法的研究工具
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0030
F. Julien
{"title":"Part VI The Post-Award Phase, 30 A Practical Guide: Research Tools in International Investment Law","authors":"F. Julien","doi":"10.1093/law/9780198758082.003.0030","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0030","url":null,"abstract":"This chapter aims to help the new investment arbitration practitioner identify and find the main legal sources for dealing with international investment law issues. Three different topics need to be addressed in order to cover, as extensively as possible, the legal issues generally raised during an arbitration based on an international investment agreement. First, even though the stare decisis rule does not exist in international arbitration, including investment arbitration, previous rulings are often used and analyzed by arbitrators. Second, when dealing with investment arbitration, it is likely that the claim will be treaty based. Finally, and most importantly, in international investment disputes, arbitral tribunals rely on all the sources of public international law identified in Article 38(1) of the Statute of the International Court of Justice, which provides for the Court to apply.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124892084","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 4 The Role of Precedent in Investment Treaty Arbitration 第1部分:投资条约与投资争端的解决:框架;第4部分:先例在投资条约仲裁中的作用
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0004
Paulsson Jan
{"title":"Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 4 The Role of Precedent in Investment Treaty Arbitration","authors":"Paulsson Jan","doi":"10.1093/law/9780198758082.003.0004","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0004","url":null,"abstract":"This chapter examines the role of precedent in investment treaty arbitration. The technical rules of precedent are practice rules developed within legal systems. A system that enforces the rule of precedent requires a supreme court authorised both to impose a rule on inferior courts and to modify it when it sees fit. However, there is nothing like it in the international realm, and even less so in the context of arbitration. Nonetheless, it is possible to imagine the development of an international ‘law on investment protection’ by something akin to the common-law process of developing authoritative rules by case-by-case accretion, though this type of precedent must be qualified by the word ‘persuasive’ rather than ‘binding’.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130478386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Part III Guide to Key Jurisdictional Issues, 11 The Meaning of ‘Investment’ in Investment Treaty Arbitration 第三部分:关键司法问题指南，11投资条约仲裁中“投资”的含义
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/LAW/9780198758082.003.0011
Yannaca-Small Katia, Katsikis Dimitrios
{"title":"Part III Guide to Key Jurisdictional Issues, 11 The Meaning of ‘Investment’ in Investment Treaty Arbitration","authors":"Yannaca-Small Katia, Katsikis Dimitrios","doi":"10.1093/LAW/9780198758082.003.0011","DOIUrl":"https://doi.org/10.1093/LAW/9780198758082.003.0011","url":null,"abstract":"Despite the growing number of investor-state arbitrations and resulting jurisprudence, there is still no consensus on the criteria of investment. This chapter first examines the way ‘investment’ is ‘defined’ in bilateral investment treaties and other international investment agreements, as well as the meaning of investment in the International Centre for Settlement of Investment Dispute (ICSID) Convention. It then considers aspects of the arbitral jurisprudence on certain types of assets constituting an investment; the ‘objective’ and ‘subjective’ approach to interpreting definitions of ‘investment’; the characteristics that have been considered to be criteria of an investment; and the requirements that, to be protected, an ‘investment’ must be (i) made in accordance with the host State’s law and (ii) in the territory of the host State.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130341005","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Part III Guide to Key Jurisdictional Issues, 14 Attribution: State Organs and Entities Exercising Elements of Governmental Authority 第三部分:关键管辖权问题指南，14归属:行使政府权力要素的国家机关和实体
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0014
Petrochilos Georgios
{"title":"Part III Guide to Key Jurisdictional Issues, 14 Attribution: State Organs and Entities Exercising Elements of Governmental Authority","authors":"Petrochilos Georgios","doi":"10.1093/law/9780198758082.003.0014","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0014","url":null,"abstract":"This chapter discusses the issue of attribution in investment treaties. Attribution is the legal operation by which the allegedly wrongful deed is connected to the State as the doer. This is a necessary operation, serving as it does the needs of the unitary conception of the State in international law: the conduct of the multitude of persons and entities through whom the State in fact operates must be funnelled through the rules on attribution. The vast majority of investment treaties do not contain special rules of attribution, so they are to be read in the light of general international law in that respect. Arguably, however, exceptions setting forth a lex specialis may be found in the NAFTA Agreement, the Energy Charter Treaty, and certain U.S. bilateral investment treaties which contain provisions in respect of State enterprises and monopolies.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133747923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 2 The Energy Charter Treaty 第一部分:投资条约与投资争端的解决:框架;第二部分:能源宪章条约
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0002
G. Emmanuel, McNeill Mark
{"title":"Part I Investment Treaties and the Settlement of Investment Disputes: The Framework, 2 The Energy Charter Treaty","authors":"G. Emmanuel, McNeill Mark","doi":"10.1093/law/9780198758082.003.0002","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0002","url":null,"abstract":"The landscape of investment arbitration has shifted dramatically, with Europe — and the Energy Charter Treaty (ECT) — playing important roles in that transition. As the number of investment treaty arbitrations continues to mount, the ECT remains the most frequently invoked investment agreement with over 100 publicly known arbitrations filed to date. This chapter begins with some brief remarks on the genesis of the ECT. Each subsequent section focuses on a different aspect of the Treaty’s investment-related features, including the definitions of ‘Investor’ and ‘Investment’ in Article 1 of the ECT; the denial of benefits provision in Article 17(1), the Treaty’s substantive investment protections in Part III; and the dispute resolution mechanisms in Articles 26 and 27. Where useful, the chapter compares the Treaty’s text with analogous provisions in other investment agreements and addresses relevant arbitral decisions under the ECT.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"1231 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124545634","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Part VI The Post-Award Phase, 27 Annulment of ICSID Awards: Is it Enough or Is Appeal around the Corner? 第六部分裁决后阶段，27 ICSID裁决的撤销:是否足够或上诉即将来临?
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/LAW/9780198758082.003.0027
Yannaca-Small Katia
{"title":"Part VI The Post-Award Phase, 27 Annulment of ICSID Awards: Is it Enough or Is Appeal around the Corner?","authors":"Yannaca-Small Katia","doi":"10.1093/LAW/9780198758082.003.0027","DOIUrl":"https://doi.org/10.1093/LAW/9780198758082.003.0027","url":null,"abstract":"The International Centre for Settlement of Investment Dispute (ICSID) Convention prevents domestic courts from reviewing any decisions issued by ICSID panels. ICSID awards are therefore immune from challenges brought before national courts which may have a local bias or be subject to the influence of the host government. This chapter discusses (i) the scope and application of annulment of ICSID awards under the ICSID Convention; (ii) the grounds for annulment; (iii) the stay of enforcement as a requirement that often accompanies an application for annulment; and, (iv) the proposals related to the creation for an appeal mechanism for investment disputes as a response to the mounting criticism of the investor-state dispute settlement system and the quest to improve legitimacy and consistency.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122130714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Part III Guide to Key Jurisdictional Issues, 10 Who is Entitled to Claim?: The Definition of Nationality in Investment Arbitration 第三部分主要司法管辖权问题指南，10谁有权提出索偿?投资仲裁中国籍的界定
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/LAW/9780198758082.003.0010
Yannaca-Small Katia
{"title":"Part III Guide to Key Jurisdictional Issues, 10 Who is Entitled to Claim?: The Definition of Nationality in Investment Arbitration","authors":"Yannaca-Small Katia","doi":"10.1093/LAW/9780198758082.003.0010","DOIUrl":"https://doi.org/10.1093/LAW/9780198758082.003.0010","url":null,"abstract":"One of the main elements setting the scope of application ratione persona of international investment agreements is the definition of the investor. An investment agreement applies only to investors who qualify for coverage under its relevant provisions; only they can submit a claim against the host State. The definition identifies the group of investors whose foreign investment the home country is seeking to protect through the agreement as its ‘nationals’, as well as the ‘clients’ and the investments the host country wishes to attract. This chapter deals with the nationality of the investor, whether a natural or legal person; the criteria used by investment agreements to attribute this nationality, and the arbitral awards that support this qualification. For natural persons, the issues are usually not problematic, although some may arise in particular with regard to dual nationality. For legal persons, the debate remains far more complex.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124745402","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Part III Guide to Key Jurisdictional Issues, 17 Counterclaims in Investment Treaty Arbitration 第三部分:关键管辖权问题指南，17投资条约仲裁中的反诉
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/LAW/9780198758082.003.0017
Clodfelter Mark A, Tsutieva Diana
{"title":"Part III Guide to Key Jurisdictional Issues, 17 Counterclaims in Investment Treaty Arbitration","authors":"Clodfelter Mark A, Tsutieva Diana","doi":"10.1093/LAW/9780198758082.003.0017","DOIUrl":"https://doi.org/10.1093/LAW/9780198758082.003.0017","url":null,"abstract":"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.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"141 12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120998931","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Part III Guide to Key Jurisdictional Issues, 16 The Umbrella Clause: Is the Umbrella Closing? 第三部分关键司法问题指南，16“保护伞条款”:保护伞是否关闭?
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0016
Yannaca-Small Katia
{"title":"Part III Guide to Key Jurisdictional Issues, 16 The Umbrella Clause: Is the Umbrella Closing?","authors":"Yannaca-Small Katia","doi":"10.1093/law/9780198758082.003.0016","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0016","url":null,"abstract":"‘Umbrella clauses’ are inserted in treaties to provide additional protection to investors and are directed at covering investment agreements that host countries frequently conclude with foreign investors. Inclusion of umbrella clauses in investment treaties provides a mechanism to make host States’ promises ‘enforceable’ and comes as an additional protection of investor-state contracts, which raises the controversial issue of whether the umbrella clause seeks to elevate contractual breaches to treaty breaches. For a better understanding of the clause, this chapter (i) gives an overview of its history; (ii) briefly discusses the significance of the language included in a number of bilateral investment treaties; and (iii) looks at the effect, scope and conditions of application of the umbrella clause as interpreted by arbitral tribunals.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122027206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Part III Guide to Key Jurisdictional Issues, 13 Burden and Standard of Proof at the Jurisdictional Stage 第三部分:关键管辖权问题指南，13管辖权阶段的举证责任与标准
Arbitration Under International Investment Agreements Pub Date : 2018-07-19 DOI: 10.1093/law/9780198758082.003.0013
S VasaniBaiju, L FodenTimothy, Z. Hafsa
{"title":"Part III Guide to Key Jurisdictional Issues, 13 Burden and Standard of Proof at the Jurisdictional Stage","authors":"S VasaniBaiju, L FodenTimothy, Z. Hafsa","doi":"10.1093/law/9780198758082.003.0013","DOIUrl":"https://doi.org/10.1093/law/9780198758082.003.0013","url":null,"abstract":"This chapter considers a situation where a respondent party argues that the tribunal is without jurisdiction to hear the claims or counterclaims in the first place. In this case, does the respondent party, as the ‘moving party’, have to prove the lack of jurisdiction? Or is it the claimant who is in fact claiming jurisdiction, who has to prove its existence? Or in light of the fact that jurisdiction is a matter for the tribunal to decide for itself, even sua sponte, does neither party hold the burden of proof on this issue? Recent decisions in international arbitration law demonstrate that the burden of proof at the jurisdictional phase is an issue in flux. Despite a long line of decisions holding, perhaps simplistically, that the burden lies with the claimant, many recent cases have suggested that it can lie with either party, depending on which party is asserting the particular fact.","PeriodicalId":364330,"journal":{"name":"Arbitration Under International Investment Agreements","volume":"340 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122753789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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