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date: 27 June 2019

(p. 1245) Index

(p. 1245) Index

abuse of rights
good faith, principle of 284–7
theory of 284
admissibility
arbitrability contrasted 927–8
contract claims and treaty claims 924–7
jurisdiction contrasted 919–27
stay of jurisdiction 928
admission, right of
delimitation 237
development of 229
entry of FDI, regulation of 228
establishment and market access distinguished 229–30
existing legal approaches, whether good policy 253
host country considerations 232–3
international investment agreements, under
controlled entry model 240–2
EC-type 247–9
full liberalization model 242–5, 251, 253–4
future governments, commitments binding 252
models of 240
mutual-national-treatment model 247–9
negative list 254
positive list approach 245–7
provisions, agreement of 239
regional industrialization 250
regulatory discretion, balancing 250–6
investor considerations 233–5
national and regional economy, impact in 228
national investment laws, under 236–9
national security concerns 255
policy considerations 232–5
protectionist policies, justification 253–4
public policy exclusions 255–7
regulatory discretion, balancing 250–6
screening 238–9
short term investment, for 231–2
state discretion 256
temporary 230
trade-distorting 238–9
agency agreements
corruption 593
dispute settlement 610–14
illicit activities, agreement on 609–10
intermediaries, prohibition 607–9, 614
public policy values 613
remedies 610
severability doctrine 611
standard of proof 612–13
validation requirement 608
Agreement on Government Procurement (AGP)
discrimination, prohibition 204
investment-related aspects of 204
non-market access provisions 205
Agreement on Subsidies and Countervailing Measures (SCM)
investment issues, relevant to 205–6
Agreement on Trade-Related Aspects of Intellectual Property Law (TRIPS)
GATT, integration into 198
investment, importance for 199
multilateral negotiations 197
other treaties, conditioned by 199
subject-matter 198
Agreement on Trade-Related Investment Measures (TRIMs)
central provision 201
codification of law 199
debate on 203
(p. 1246) foreign investment provisions 123
GATT rules, clarification of application of 200–1
Illustrative List 202, 238
mandate for negotiations 125
measures in violation of 202–3
multilateral investment rules, relationship with 136
negotiations
limited outcome 128
trigger 200
performance requirements, prohibited 32–3, 145
quantitative restrictions 239
scope of 124, 201–2
specific obligations in 202
trade-distorting effects, prohibiting 238
uniform obligations in 203–4
applicable law
approach to 93
arbitral tribunal, before 1215–17, 1221
choice of 93
consent to arbitration, interpretation of 864–6
contract claims
ICSID 103–5
national law, application of 105
outside ICSID 106
vertical approach 98–9, 103–5
different systems of law, relationship of 116
disregarding 1234–6
horizontal approach 96
host state, of 100
internationalization
expansion of 107–10
international law standards 98
minimum degree of 94–9
need for 95
situating 92–4
minimum degree of internationalization 94–9
national courts, in 696
pacta sunt servanda
choice-of-law principle 96
direct approach 97
outside ICSID 106
party autonomy 99–102
principle of 94–6
vertical approach 98–9, 103–5
treaty claims
bilateral investment treaties, breach of rights conferred by 110
ICSID 108–10
international law, resolution on basis of 107–9
internationalization, expansion of 107–10
municipal law issues 108
national law, role for 110–15
arbitration
access to hearings before 772–5
ad hoc 710–12
judicial review 1173
adversarial system, as 1211–12
amicus curiae briefs, submission of advantages of public participation by 777–80
analysis of 777
conflicts of interest, potential 783
costs 781
deadlines for 785
delay, causing 781
disadvantages of public participation by 780–4
greater transparency, leading to 779
higher quality decisions, leading to 778–9
impaired confidentiality by 782
implementation of decisions 780
laws of evidence, complications as to 783
page limits 786
procedural fairness 782
process, undermining 784
protection of interests by 779
public interest matters, raising 779
recommendations 785–6
rules for 784–5
single 786
state control, frustration of 784
subject matter limits 786
(p. 1247) third parties, information to be provided to 786
unequal access 783
appellate process
arguments against introduction of 1158
call for, basis of 1155–9
choice of 1159–65
consistency and coherence, for 1157–8, 1169
corrective mechanism, as 1157
development perspective 1168
existing adjudicative systems, added to 1160
ICSID facility 1160–1
justification 1168
legal norms, interpretation of 1158–9, 1168–9
locus of 1159
need to accommodate 1155
option 1159
Supreme Investment Court, proposal for 1165–7
US case for 1155–6
WTO, in 1162–5
applicable law see applicable law
applicable rules 763–4
arbitrability 927–8
arbitrators see arbitrators
Argentina, reluctance of to accept 394–6
awards
adverse, compliance with 1173
annulment 91
annulment standards, uniform interpretation of 1227
case-law, body of 792
causation, discussion of 1094
challenge to 776, 824
conflicting 1011
enforcement 311, 776
finality of 1151–2
grounds for contesting 1152
inconsistent or contradictory, avoiding 1040–1
international obligations, compliance with 1185
non-compliance, remedies for 1173–4
private nature of 738
recognition, enforcement and execution see recognition, enforcement and execution of awards below
setting aside, classical reason for 1151
validity and enforceability of 1226–30
basis of law, decided on 92
briefs and submissions, timely public disclosure of 770–2
burden of proof 1224–5
violation of rule 1232
choice of rules and institutions 763–6
concession contracts, clauses in 725
confidentiality and privacy, principles of
advantage of 751
Australian courts, in 753–5
English courts, recognition and enforcement in 751–3
rejection, circumstances for 755
transparency as erosion of 761
US courts, in 753
conflicts of interest, IBA Guidelines 821–2
consensual nature of 1211
consent to see consent to arbitration
consolidation see consolidation of claims
contract claims and treaty claims distinguished
characterization 971–3
debate 964
ICSID tribunals, jurisdiction of 968–71
modern-classic approach 964–8
triple identity test 967–7
Vivendi case 965–6
corruption, issue of 591–3
definition 1128
denial of justice concept 1186
equitable circumstances, role of 1103–5
expropriatory taxation, jurisprudence 347–52
foreign law as fact in 1212–13
Host-Government Agreement, clauses in 725, 728
indirect expropriation,findings of 451–6
institutional 707–12
institutions 831
inter-State investment 718
International Chamber of Commerce see International Chamber of Commerce
international commercial 725–6
international decisions, revision of
appellation 1134–5
background 1127–36
cassation 1134–5
current systems 1135–6
forms of 1130–1
historical background 1131–4
new facts, taking account of 1130
international, treaty-based right to 43
investment
classification 1129
existing rules as model for 823
expansion of 1009
fair, efficient and effective, expected to be 1172
growth of 725
increasing use of 725–6
institutions 730–41
investor-State 727–8
law, development of 1172
notion of 1128–30
process 728–30
public interest in 726
rules 730–41
State-to-State 726–7
surge in 102
treaty provision 102–3
Iran-US Claims Tribunal see Iran-US Claims Tribunal
jurisdiction
admissibility contrasted 919–27
challenge to 933
jurisdictional requirements 941
prescription 941
review of case to establish 941–2
stay of 928
legal entrepreneurship, call for 90
lis alibi pendens, recognition and application of 1022–4
main institutions 708
mixed 725
most-favoured-nation standard, case-law
procedural matters 387–401
substantive treatment 381–7
nationality of corporation, determining 77–8
notice of 763
parallel proceedings see parallel proceedings
party autonomy 90
basis of 101–2
pacta sunt servanda, and 99–102
principle of 99, 101–2
Permanent Court of Arbitration 709–10
place, designation of 765
precedent in
cautious attitude to 1195
examination of rules 1193
inconsistent decisions 1196–8
investment treaty tribunals, practice of 1191–5
prima facie test of jurisdiction
application of 934
BIT tribunals, application by 945, 951
breach, raising questions of 947
broader perspective, allegations considered in 948–9
contract claims and treaty claims 948–50
extent of determination 943
facts of case 951–2, 961
(p. 1249) failure to meet 954–7
formulation of claims, acceptance of 946–8
general economic policy, no consideration of questions of 946
legal foundation of came 951–2, 961
objective issues, application to 961
relief sought 951–2, 961
threshold test, as, 960
tribunals, applied by 941–54
private procedure, as 927
procedural developments during 769–70
procedural irregularity 1229
procedural rules 1152
public international law, role of 550
public participation
amicus submissions see amicus curiae briefs above
conflicts of interest, potential 783
costs 781
delay, causing 781
democratic values 779
demonstration of 780
greater transparency, leading to 779
impaired confidentiality by 782
implementation of decisions 780
laws of evidence, complications as to 783
legitimacy, providing 780
need to increase 787
procedural fairness 782
process, undermining 784
protection of interests by 779
state control, frustration of 784
unequal access 783
pure umpire, role of 1213
recognition, enforcement and execution of awards
AIG Partners case 1181–2
Benvenuti & Bonfant case 1177–9
challenge to 1173, 1176
denial of justice, effect of 1186
domestic courts, approach of 1186
ICSID awards 1175–6
impossibility 1186
issues of 1185
LETCO case 1179–80
procedural issues 1172–3
resistance to 1185
Sedelmayer case 1182–5
SOABI case 1178–9
sovereign immunity arguments 1180–5, 1187
ultimate remedy 1186
reported jurisprudence 792
res judicata, recognition and application of 1015–17
review of awards
appellation 1134–5
arguments against 1150
background 1126
cassation 1134–5
current systems 1135–6
defect, in case of 1127
excess of power, in case of 1228–9
fair hearing, lack of 1229
forms of 1130–1
historical background 1131–4
ICSID Convention rules, under 1136
introduction of, advocates of 1149
investment disputes, in 1135–51
jurisprudence 1174
merits, on 1153, 1227–8
mixed views on 1150–1
national court. power of 1142
new facts, taking account of 1130
procedural irregularity, in case of 1229
systems for 1174
UNCITRAL Model Law, on basis of 1143–5
uniformity of rules, lack of 1136
rules
applicable law 1215–17, 1221
burden of proof 1224–5
choice of 768–9
conduct, as to 1221–6
default of party, provision for 1222
failure of party to appear, adverse inferences from 1222–4
fair hearing, grant of 1225–6, 1229
impartiality 1225
issue of 1222
nature of claim, jurisdiction limited to 1214–15
power of tribunal, as to 1214–21
(p. 1250) rulings, timely disclosure of 775–6
settlement discussions, access to 775
situation of 92–4
standards of treatment 260–1
state responsibility see state responsibility
substantive sphere, in 1159
tax, OECD proposal 311–12
transparency
access to hearings before arbitration 772–5
advantages of 761–2
appointment of tribunal 766
arbitrators, choice of 766–8
briefs and submissions, timely public disclosure of 770–2
challenge to awards 776
choice of rules and institutions 763–6
consideration of 758–61
disadvantages of 762
enforcement of awards 776
minimum standards 765
need for 756–8
need to increase 787
notice, disclosure of 763
principle of confidentiality, erosion of 761
procedural developments 769–70
public participation leading to 779
rules, choice of 768–9
rulings, timely disclosure of 775–6
settlement discussions, access to 775
transcripts, disclosure of 775
tribunal
additional information, requiring 1224
applicable law 1215–17, 1221
applicable rules of international law, disposal on basis of 273–4
appointment 766
arbitrability, decision on 1217, 1219
arguments by parties, practice in 1209
conduct, rules on 1221–6
constraints 1243
contract, modification and adaptation of 599
decisions ex bono et aequo 1217–19
domestic and international arbitration, new legal argumentation in 1239–41
ex officio application of law 1239–41
excess of power, award in 1228–9
exclusion of relief, agreement on 1220
factual scope of dispute before 1219–20
failure of party to appear, adverse inferences from 1222–4
fair hearing, grant of 1225–6, 1229
functions 683
guidelines as to role of 1230
impartiality 1225
independent evaluation of evidence and arguments by 1242
inviting parties to comment 1241–2
invoked facts, deciding on 1233–4
legal arguments before 91–2
legal arguments, developing 1236–9
minimum standard provision, application of 274
misuse of powers 1242–3
national law, deciding questions of 112–13
nature and scope of IIA obligations, narrow interpretation of 683
nature of claim, jurisdiction limited to 1214–15
new remedies, introducing 1238–9
new sources of law, raising 1237
non-ICSID 1210–13
power, rules on 1214–21
power, scope of 1209
powers conferred by parties, not to exceed 1208
procedural framework 90–2
questions of fact, power as to 1230–4
questions of law, power as to 1234–41
regulatory fairness 277–83
stability, need for 279
stare decisis, not observing rules of 267
transparency, consideration of 758–61
umpire or inquisitor, as 1209–13
uncontested evidence, requiring additional information to undermine 1230–3
(p. 1251) UNCITRAL Rules 41
US investor protection agreements, motion to dismiss in 957–60
waiver of access to 984–5
arbitrators
AAA/ABA Code of Ethics 822–3
appointment, objections to 792–3, 797
challenges to
counsel, having represented parties as 802–4
forfeiture of right 803–4
ICSID precedents 794–800
judicial recourse 824
lack of independence, for 800–1
law firm acting in different case, relationship with 806
merits, assessment on 805
precedents 800–7
preliminary determination, comment on 801–2
president, to 798
reform, need for 828
request for disqualification 795–800
UNCITRAL proceedings 802–3
choice of 766–8
conflicts of interest, IBA Guidelines 821–2
disclosure requirements
disclosure requirements
England and Wales, in 818–19
France, in 816–18
ICSID precedents 794–800
ICSID provisions 793–4
obligation of 828
precedents 800–7
Switzerland, in 819–20
United States, in 820
freedom of expression 828–9
general code of conduct, need for 821, 827
ICSID Arbitration Rules 790–1
independence and impartiality of
analysis of 790
case-law and rules, practice as to 806
challenges see challenges to above
civil servants, appointment of 810
counsel, acting as 825
counsel, having represented parties as 802–4
current treatment of 792–807
dual role, having 803–5
England and Wales, in 818–19
France, in 816–18
ICC rules 808–10
ICSID Discussion Paper 790–1, 825–6
ICSID precedents 794–800
issue of 790
justified doubts as to 804
law firm acting in different case, relationship with 806
LCIA rules 810–11
legal articles by 825
legal articles, publication of 810
NAFTA code of conduct 814
national court, decision by 825
national laws 816, 824
overview 791
parties, involvement with 828
precedents 800–7
preliminary determination, comment on 801–2
professional associations, contribution of 821–3
professional relationship with law firms involved 810
public positions, taking 802
standards of, 824
Switzerland, in 819–20
terms distinguished 807
UNCITRAL proceedings 802–3
UNCITRAL rules 807
United States, in 820
WTO code of conduct 815–16
proposal to disqualify 795–800
ASEAN Investment Area
Framework Agreement, most-favoured-nation standard 380, 398–9
bank guarantees
investments, as 879–80
bilateral investment treaties
all disputes concerning investments, conflicting meanings of 1197
backlash against 683
balanced interpretation, need for 979
(p. 1252) consent to arbitration see consent to arbitration
consolidation of claims, provision for 1035
contract claims and treaty claims distinguished
breach of treaty 975
characterization 971–3
debate 964
ICSID tribunals, jurisdiction of 968–71
modern-classic approach 964–8
triple identity test 967–7
Vivendi case 965–6
controlled entry model 240–1
corporate nationality, definition of 898–900
corruption see corruption
denial of benefit clauses 917–19
developing countries
favoured by 131
use between 17
with 528
dispute settlement see dispute settlement
economic analysis 60
economic emergency measures 498
economic values, undermining 639
entry into 726
environmental and labour standards 146–7
essential security exceptions 492–6, 521
exculpatory provisions 462–3
fair and equitable treatment obligation, including 628
federal states, provision for 574
foreign investment, current regime for 122–4
forum decisions 1009
fundamental functions of 635
increase in number of 460
individual rights to commence proceedings 1002–3
interpretation
appeals procedures 1201–3
institutionalized mechanisms 1200–5
interpretative statements by States 1199–1200
official 1200
preliminary rulings 1203–5
introduction of 639
investment, definition 55–8, 877–8
investor
definition 70
direct relationship with 1002
expectations of 631
nationality 69–86 see also investor
juridical regime 16
jurisdiction
admissibility contrasted 922–4
investor element 51
legitimate expectations, protection standard based on 640
models regulating rights and international obligations, relationship of 161
most favoured nation clauses 190
dispute settlement, and 1197–8
most-favoured-nation standardsee most-favoured-nation standard
national treatment standard 17, 22, 24
non-compliance with obligations, excuse for 461
number of 1009
own identity, having 1193–4
public order exceptions 492–4, 521
self-judging 503–5, 521
source of individual rights, as
applicable procedural law 998
challenge and enforcement of awards 1001–2
channelling of interests 996–7
claims by investor, control over 994
damages claimed 1001
economic disputes, in 991–3
fork in the road provisions 998–1000
local remedies, exhaustion of 1000
nationality of claims 994–7
options under 996
relationship with investor 990–1
states, between 463
(p. 1253) taxation, treatment of see taxation
transparency see transparency
treaties replacing 403
umbrella clauses
assimilation of breach 978
attribution of conduct to states 576
breach of contract 579–80
breach, compensation for 1090–3
broad interpretation 976
commitment to observe obligations 577–8
contract disputes, not transforming to investment disputes 975
contractual and treaty claims 576–7
contractual rights, conversion to treaty tights 575
divergent interpretation of 1197
elevation of contractual issues, differing views on 1005–6
examples of 576
formulation of 1031
forum selection clauses, and 980
future of 979–83
inclusion of 575
inconsistent approach 979
international tribunals, application by 974–83
interpretation 580
‘it’ problem 578–81
limitation of scope 982
main approaches to 981
nature of contract, effect on 581
origin, analysis of 981
overview of cases 977
parallel proceedings, regulation or prevention of 1030–1, 1046
qualification of scope 976
reluctance to apply 978
requirement to observe obligations 976
wording and application 575
United States, by 623–6
US model, regulating relationship of rights and international obligations 160
waiver of protection granted by conclusion 1006
individual as subject of international law 985–90
international arbitration, access to 984–5
possibility of 1003–4
source of individual rights 990–1002
valid, criteria for 1004–5
capital
commitment of 62
cross-border movement 61–2
origin of 59–60
transfer of 58–62
Charter of Economic Right and Duties of States
adoption of 527
common law
precedent, doctrine of 1189
compensation
breach of standards of treatment, for
approaches to 1115–16
denial of justice 1088
legitimate expectation 1088–9
national treatment see national treatment standard
precedent, lack of 1082
proper approach 1083
burden of proof, allocation of 1110–11
business reputation, losses for 1112
causation, concept of 1093–5
contractual breaches, for
approaches to 1090
contractual damages perspective 1091–3
expropriation/international law perspective 1091–3
umbrella clauses 1090–3
currency of 1106
direct and derivative damage, for 1101–3
economic analysis 1054
egregiousness of breach 1100
elements enhancing 1099–1101
elements reducing
contributory negligence 1096
damage mitigation 1096–7
excessive profits 1095, 1097–8
inability to pay 1098
(p. 1254) unjust enrichment 1099
equitable circumstances, role of 1103–5
events after unlawful act, consideration of 1095
evidentiary rules 1111–12
expropriation, for see expropriation
functions of 1053
influences on 1112
interest
date of accrual 1108–9
Islamic law, implication of 1110
post-award 1109–10
pre-award 1109–10
rate of 1107–8
simple or compound 1107
uniform practice, lack of 1106
variables 1106
least intrusive remedy, as 1059
legal obligations between states, for breach of 1057
management, legal and expert costs 1112–13
modern law and practice of 1114
multiple claims 1101–3
one of several remedies, as 1055
parties agreeing on 1062
practical primacy over restitution, rationale 1058–62
questions of 1051
risk, issue of 1064–7
stabilization clause, effect of 1099–1100
table of cases 1116–19
tax issues 1113–14
terminology 1052
unusual or excessive costs 1113
valuation, modern law and practice of 1114–15
conciliation
ICSID 702–4
consent to arbitration
application ratione temporis 856–61
basis of 831
bilateral investment treaties, through application ratione temporis 856–61
clauses 835
direct agreement, by 832
host state legislation, through
acceptance by investor 834
acceptance by investor 836–7
all disputes, to 837–9
amicable settlement, waiting periods for 843–6
domestic remedies, exhaustion of 846–8
fork-in-the-road provisions 848–9
limited expression of 843
offer by host state 833–4, 836
procedural requirements 835, 843–9
scope of 834–5, 837–43
umbrella clauses 839–43
interpretation
applicable law 864–6
balanced approach 863
extensive 861–4
ICSID Convention, in spirit of 862
restrictive 861–4
means of giving 831
most favoured nation clauses, under 851–5
multilateral treaties, through 850–1
practice 866
procedural requirements 866
scope of 866
temporal issues 855–61
time of 855–6
valid, existence of 866
consolidation of claims
arguments against 1041–5
arguments for 1038–41
civil procedure rules for 1032
commercial arbitration, in case of 1032
consensus, attempt to reach 1046
consent of parties 1042–3, 1046
costs, apportionment of 1045
court-ordered 1033
de facto 1032, 1037–8, 1047
decision, making 1035–6
efficiency, for 1039–40
inconsistent or contradictory awards, avoiding 1040–1
international rules 1034–6
investment arbitration, in 1033
(p. 1255) jurisprudence 1036–8
procedural device of 1032
rationale 1038–41
roots of 1046
State practice 1034–6
stricto sensu 1036–7
substantive rights, infringement of 1043–5
tribunal, participation in appointment of 1043
construction contract
investment, whether 67
consumer protection
UN Norms, standards in 661
contract
breach of
expropriation of contractual rights, and 417–20
international responsibility for 418
corruption see corruption
forum selection clauses 980, 984
indirect expropriation rendering worthless 452
pacta sunt servanda
choice-of-law principle 96
direct approach 97
ICSID 103–5
outside ICSID 106
party autonomy 99–102
principle of 94–6
vertical approach 98–9, 103–5
rights, interference with 452
traditional claims 103
corporate governance
international corporate social responsibility, and 645
OECD Principles 677–8
corporate social responsibility
agreements, evolution of 681
defining 643–5
employment issues 648–50
environmental issues
awareness of 662
customary international law, implications of 667–8
damage, compensation for 668
hard obligations 666–7
host country, imposition of performance requirements 670
IIAs, effect on national policy 669–70
lowering of standards 671–2
OECD Guidelines 666
substantive content 662
transboundary escapes 669
voluntary codes 662–4
ILO definition 647
industrial relations issues 651–2
international
breach of standards 682–3
calls for 641–2
commitments to 682
corporate governance, and 645
defining 643–5
environmental issues 662–73
human rights 654–62
interpretation of obligations 683
labour rights 646–54
monitoring and enforcement 673–80
movers for reform 642
obligations on which resting 641
overview 681
substantive contrast, contributions to 682
investor responsibilities debate 638–42
labour rights 646–54
legal implications 638
legally binding international standards 7
list of issues 643–4
monitoring and enforcement 673–80
safety and health standards 651
substantive standards
developments in 37–8, 645–73
environmental issues 662–73
human rights 654–62
labour rights 646–54
transparency 675–8
treaty-based and national regulatory standards, relationship of 681–2
vocational training and guidance policies 649
workers' grievances 652
corporation
nationality
control, and 77–9
(p. 1256) effective seat of management 75–7, 79
ICSID Convention, for purposes of 75–7
owners and controllers, of 79–80
place of incorporation, based on 75–7, 79
principal place of business 75
reality, in 79–81
treaty-based arbitration, for 77–8
transnational see transnational corporations
corruption
agency agreements, as to 593
dispute settlement 610–14
illicit activities, agreement on 609–10
intermediaries, prohibition 607–9, 614
public policy values 613
remedies 610
severability doctrine 611
standard of proof 612–13
validation requirement 608
bilateral investment treaties, provisions of 591
conclusions 614
criminal offence, as 588
definition 587
dispute settlement, form of 590
European climate 588
foreign direct investment, in
agency agreement 607–13
background of 589
characteristics of 591–613
debate on 588
main contract, as to 593–606
notion of 586–91
public law decisions, effects on 589
Germany, in 585
hard 587
increase in extent of 585
influence peddling 587
international arbitration dealing with 591–3
legal effects of 585
main contract, as to
arbitrability 602–4
defect of consent to 596
dispute settlement 602–6
finality of awards 605–6
invalid or unenforceable, being 594–6
legal function 594
legal problems 593–4
modification and adaptation of 598–600
national laws 594
neutral third country laws, subject to 595
public policy values 605–6
related legal transactions, and 600–1
remedies 601–2
standard of proof 604–5
state responsibility 596
valid and enforceable, being 596–8, 614
multilateral instruments 590
notion of 586–91
omnipresence 585
private international law, in 590
projects in which an issue 592
public officials, bribing 587
US legislation 588
countermeasures
compensation, not resulting in 511
damages see also compensation
causation, concept of 1093–5
Chorzow Factory dictum 1056–8
direct and derivative damage, for 1101–3
direct and indirect distinguished 1093
elements enhancing 1099–1101
elements reducing
contributory negligence 1096
excessive profits 1095, 1097–8
inability to pay 1098
mitigation 1096–7
unjust enrichment 1099
equitable circumstances, role of 1103–5
explanation of awards 1062
extension of concept 1113
interest see compensation
investor-arbitration regime, effect of awards on 1054–6
large awards, political intrusiveness 1060
lost profit, for 1065–7
(p. 1257) multiple claims 1101–3
public damage 1113
questions of 1051
restitution, and 1056
shareholders, recovery by 1101–3
social damage 1113
subsidiary, due to 1101–3
table of cases 1116–19
tax issues 1113–14
terminology 1052
valuation
litigation dynamics, consequences of 1063–4
lost profit, for 1066
market value 1063
modern law and practice of 1114–15
modern methods 1066
moral hazard 1064–7
objective method 1062
over-compensation 1064–7
risk, issue of 1064–7
developing countries
bargaining power 133
Bilateral Investment Treaties, favouring 131
foreign direct investment through multinational companies, view of 185
foreign investment, inflow of 120–1
investment obligations, assuming 137
regional industrialization 250
special and differential treatment for 36
diplomatic protection
dispute settlement 712–14, 719, 725
international relations, causing disruption of 991–3
investor, of 82
national law, questions of 112–13
dispute settlement
applicable law 696
BITs, provisions of 148–51
choice of forum, uncertainties as to 693
claims by investor, control over 994
compliance and enforcement of awards 42
corruption, effect of 590
agency agreement 610–14
main contract 602–6
diplomatic protection 712–14, 719, 725, 991–3
efficiency of systems 693
foreign direct investment law, provisions in 41–2
host country control 42–3
ICSID Convention, advantages of 1152
individual rights
applicable procedural law 998
challenge and enforcement of awards 1001–2
claims by investor, control over 99
damages claimed 1001
economic disputes, in 991–3
fork in the road provisions 998–1000
human rights 986–7
local remedies, exhaustion of 1000
nationality of claims 994–7
proceedings, to commence 1002–3
recognition of 986
source of 990–1002
inter-State investment arbitration 718
International Court of Justice, by 715–17 see also International Court of Justice
international courts and tribunals 714–18
internationalized approach 40
investors and host countries, between 40
Iran-US Claims Tribunal, in 717–18
justiciability of dispute, question of 697
means of 719
mechanisms 692
most favoured nation clauses, under 851–5
most-favoured-nation standard, application of 387–401
multi-tiered clauses 692
Multilateral Agreement on Investment, provisions of 148–9
Multilateral Investment Guarantee Agency 544–6
multilateral investment rules 148–51
(p. 1258) national courts, in 694–8
national policies 41
nationality of claims 994–7
openness and transparency 44
regional centres 43
remedies 42
States, between 692
treaty and contractual claims 695
UNCITRAL Arbitration Rules 41
US model BIT, provisions of 693
disputes
settlement see dispute settlement
tax-related
arbitration 311
expropriatory taxation, jurisprudence 347–52
intergovernmental treaties 311
investment agreement/authorization, breach of 337–9
investment treaties, provisions in 322
political and economic dynamics 308–14
tax carve-out 339–40
treaties, use of 311
VAT refund 338–9
Energy Charter Treaty
consent to arbitration 851
denial of benefit clause 917–19
establishment, right of 244–5
indirect expropriation, prohibition 421
investment, definition 910, 912–13
investor, definition 910–12
jurisdictional requirements 909–14
most-favoured-nation standard 377–9
standards of treatment 263–4
state parties to 909
tribunals 910
umbrella clause 580–1
energy supply industry
security, bids threatening 251
equity
circumstances, role of 1103–5
international commercial arbitration, role in 1104
establishment, right of
admission and market access distinguished 229–30
delimitation 237
development of 229
entry of FDI, regulation of 228
existing legal approaches, whether good policy 253
foreign direct investment 20–2
forms of 231
host country considerations 232–3
international investment agreements, under
controlled entry model 240–2
EC-type 247–9
full liberalization model 242–5, 251, 253–4
future governments, commitments binding 252
models of 240
mutual-national-treatment model 247–9
negative list 254
positive list approach 245–7
provisions, agreement of 239
regional industrialization 250
regulatory discretion, balancing 250–6
investor considerations 233–5
multilateral investment rules, in 145
national investment laws, under 236–9
national security concerns 255
non-discrimination standard, as 231
permanent 230
policy considerations 232–5
protectionist policies, justification 253–4
public policy exclusions 255–7
regulatory discretion, balancing 250–6
screening 238–9
secondary methods 248
state discretion 256
trade-distorting 238–9
expropriation
challenge to jurisdiction 945
compensation for
act of grace, as 413
creeping expropriation 1079–82
current status 1069–70
(p. 1259) historical development 1068–9
measure of 168–70
obligation of 168–70
property, valuation of 1070–9
regulatory expropriation 1079–81
relevant valuation time and date 1081–2
requirement and amount of 408
settlement, modes of 408
standards of 1068–70
contractual rights, of 412–15, 453
breach of contract, and 417–20
creeping 426–31
compensation for 1079–82
direct 408
due process, denial of 266
fiscal 342
indirect 343–5, 348, 350–1
actual findings of 451–6
arbitral and judicial practice, in 451–6
attempts to define 422–4
characterization 425
concretization of concept 456
consistency 447–8
contract rights, interference with 452
creeping 426–31
crucial elements of 438–51
destruction of commercial value of investment 426
discriminatory effect 450–1
disproportionate tax increases 451
fundamental rights of ownership, denial of 425
general operating licences, denial or revocation of 455–6
government permits or licences, revocation or denial of 454–5
governmental intention not required 446
identification of 424
import privileges, denial of 455
investor, effect on 444–7
issue of 409
legality 447–8
legitimate investor expectations, protection of 448–9
management of investment, interference with 453–4
measures having equivalent effect 421, 423
measures having quality of 425
notion of 421–6
omissions 431–2, 446
patents and contracts, rendering worthless 452
practice 409
prohibition covering 420–1
property for purposes of 411–12
property rights, intensity of interference with 438–42
protected property rights, scope of 410–17
regulatory 432–8
revocation of licence as 430
series of measures 427, 431
sole effect doctrine 444–7
state, measures not benefiting 442–4
substantial deprivation as 426
transparency 447–8
intangible rights, affecting 410–15
investor, effect on 444–7
jurisdiction, finding against 955–6
legally camouflaged 342
location of 418
measure having equivalent effect to 565
NAFTA provisions, in breach of 156
nationalization as 308
outright repudiation as 419
ownership rights, transfer of 408
political risk, dimension of 307
possessions, scope of 416
private property, taking by state 408
property rights, scope of 456
property, valuation of
appropriate risk factor 1077–8
book value 1071–2
discount rate 1077–8
discounted cash flow method 1074–5
historic cost 1071–2
income information, focus on 1071–2
investment projects before start-up, special case of 1078–9
market-based approach 1070–1
(p. 1260) net book value versus discounted cash flow 1075–7
relevant time and date 1081–2
protected property rights, scope of 410–17
regulatory, compensation for 1079–81
regulatory measures
bona fide 435–6
compensation claim, giving rise to 438
ECtHR, view of 433–4, 449–50
environmental concerns 435–7
exclusion of 437–8
indirect expropriation distinguished 432–3
legitimate objectives, for 433–5
problem of 432–8
proportionality test 433, 449–50
taxation 435–6
series of measures 427, 431
sole effect doctrine 444–7
sovereignty, in name of 527
standards of treatment 266–7
state liability for 266
state, measures not benefiting 442–4
substantial deprivation 267
substantive notion of 113
taxation, and
arbitral jurisprudence 347–52
customs and tax exemption, withdrawal of 349–50
damages claim 352
draft MAI provisions 343–4
economic value of investment, destroying 342
joint tax consultation 352–4
licence to operate, withdrawal of 349
normal practice 345–6
OECD member states, attitudes of 343–4
particular investors, singling out 346–7
production tax, imposition of 348
red flag 345, 347
taking, equivalence to 348–9
tax filter 352–4
tax refund right 349
tensions 341
veto 352–4
third parties, benefit accruing to 443–4
vested rights, exception to general principle of respect for 414
fair and equitable treatment standard
abuse of authority 284–7
administrative action, review of 24–5
compensation for breach
approaches to 1086
arbitral jurisprudence, analysis of 1086
enforcement risk discount 1087
investment treaties, no guidance in 1087
due process of law and 271
equality of competitive opportunity 289
governance, approach to 25
importance of 24–5
impugned regulatory action, in context of 278
international trade law, in 383
investment treaties, provisions in 328–31
investor/investment protection, as core issue 24–5
legitimate expectation, detrimental reliance on 276
most-favoured-nation standard, and 382–4
narrow approach to 630
non-discrimination, assessment 265
regulatory fairness 277–83
scope of 265
transparency, and 628–34
treaty and customary international law, comparison 269–70
federal states
BITs, provisions of 574
state responsibility 571–5
force majeure
affirmative requirements
event beyond control of state 500–1
irresistible force, occurrence of 499–500
material impossibility of performance 501
(p. 1261) unforeseen event, occurrence of 499–500
circumstance precluding wrongfulness, judging existence of
recurrent question of 503
self-judging 503–5, 521
time for assessing 506–7
defence
establishment of 520
exculpatory 510
infrequent use of 498
raising 520–1
relevance of 461
doctrine, development of 464–73
economic 506–7
elements of, affirmative requirements 499–501
establishing state of, effect of
compensation 510–16
considerations 507
duration of circumstances 508–10
international wrongful event, not committing 507
invoking state, appropriate role of 509
event beyond control of state 500–1
exceptions
invoking state, situation attributable to 502
risk of situation occurring, state having assumed risk of 502
fortuitous event, and 472
impossibility of performance 462
International Law Commission Articles on State Responsibility 461
Ago report 472–3
bases for discussion 466–7
drafts 471–3
work of 466
wrongfulness of act 473
invoking state, situation attributable to 502
irresistible force, occurrence of 499–500
material impossibility of performance 501
necessity distinguished 461–2
necessity, and 465
risk allocation 522
risk of situation occurring, state having assumed risk of 502
standard, meeting 520
unforeseen event, occurrence of 499–500
volition, lacking 461, 511
wrongfulness, precluding 465
foreign direct investment
actors in
home state 6, 9–10
host state 6
IGOs 8
intergovernmental organizations 5
investor 6–7
NGOs 8
non-governmental organizations 5
principal 6–10
recent developments 6
admission see admission, right of
clusters of 235
control element 60
corruption see corruption
definition 586–7
developing countries, in 4
dispute settlement provision 41–2
economic colonialism 185
economic, social and political culture 252
efficiency-seeking 234
energy supply industry, in 251
entry, right to control 20–2
establishment, right of 20–2
example of 528–30
full benefits, reaping 14
India's power generation domain, in 529–30, 547
influence, criterion of 587
jeopardy, in 527
liberal regime, bias for 10–11
liberalization, restriction on 228–9
long term relationship, creating 230
market-seeking 234
notion of 586–91
right of establishment see establishment, right of
sensitive sectors 236–7
(p. 1262) standards of treatment see standards of treatment
strategic asset-seeking 234–5
value of projects 592
foreign investment
abortive multilateral approaches 188–92
current regime 122–4
cycles of 309
divisions of 120
insurance see investment insurance
legal instruments 121
meaning 120
proliferation of arrangements 186–7
protection, need for 525–30
purposes of 120
regional agreements 123
regulation of 120
residual GATT, no provision in 185
foreign investment policy
development of 44
environment 5
evolution, central issues 10
ideological factors 10–15
incentives 33–4
NAFTA countries, of 13
performance requirements 31–3
study of 4
foreign law
arbitration, as fact in 1212–13
renvoi, doctrine of 981
Free Trade Agreements
consolidation of claims, provision for 1034–5
Free Trade Area of the Americas
Draft Agreement 376, 403
General Agreement on Trade in Services (GATS)
banking sector, liberalization of FDI in 193
commercial presence provisions 193
commercial presence, meaning 123
focus of 123
foreign direct investment, rules applying 193
foreign investment provisions 123
investment general rules, lack of 192
investment issues, addressing 194
liberalized sectors or industries 21–2
market access, bottom-up approach 123–4
most-favoured-nation principles 193–5
most-favoured-nation standard 24, 377–8
multilateral investment rules, relationship with 136
national treatment, principle for 195–6, 211
supply of services, modes of 194
trade in services
concept of 192–3
foreign direct investment 193
transparency, basic principle of 619–20
global economic integration
global patterns of 11
hyperglobalists 12–13
increasing, process of 12
sceptics 12
sociological effects 12
transformationalists 12
globalization
economic 5
evidence of 12
internationalization, and 11
open door, pressure for 228
parameters of debate 12
social ills of 641
good faith, principle of
abuse of authority 284–7
convergence, sowing seeds of 287–90
discrimination test 289
international order, holding together 272
legitimate expectation, detrimental reliance on 275–7
minimum standard of treatment, and 272–90
national treatment, in 290–6
non-discrimination, and 296–9
regulatory fairness 277–83
state responsibility 272
substantive principle, as 273
theories of liability 272
human rights
aiding and abetting violations 675
business, good for 655
(p. 1263) corporate actors, norms binding 656–7
individuals, of 986–7
international corporate social responsibility 654–62
international law, responsibilities in 656
investment obligations, primacy over 159
public international law, recognition in 177
UN Norms
application of 657–9
consumer protection standards 661
corporate social responsibility code 661
security arrangements for TNCs 660
types of provision 659–61
violation, compensation for 679–80
Universal Declaration 657
US Special Representative 656
violation, direct responsibility for 674–5
intellectual property rights
indirect expropriation rendering worthless 452
regulatory systems, potential confliict between 196–7
trade-related effects 197–8
Inter-Arab Investment Guarantee Corporation
contract, party to 536
cooperation 546
eligibility for guarantees 536
establishment of 535
insurance coverage 535
interpretation of Convention 537
risks covered 536
intergovernmental organizations
foreign direct investment process, role in 5
international investment, as actors in 8
quasi-legislative powers 8
International Centre for the Settlement of Investment Disputes (ICSID)
ad hoc committees, annulment of awards by 91
Additional Facility 704–7, 734
jurisdictional requirements 906–8
agreement to submit to, approval by state 905–6
annulment of awards
applicable law, issue of 1138–46
application for 1137
element of appeal, introduction of 1149
experience of 1146–50
failure to state reasons, for 1138
first generation of decisions 1148–9
grounds for 1137, 1147, 1227
legal regulation 1142–3
manifest excess of power, ground of 1138
precedent, no reliance on 1195
procedure 1137–46
requirements 1148
semi-private character of disputes, arising from 1148
use of process 1175
Appellate Facility
availability of 1160
features of 1160–1
judges, appointment of 1161
proposal for 1155, 1160, 1202–3
Rules 1160
arbitration
Additional Facility 704–7, 734
advantages of 701–2
aim of 699
amicus submissions 733, 756–7
annulment procedure 700
cases pending 725
consent to 51
determination of disputes by 869–70
facilities for 698
jurisdictional requirements 699–700
NAFTA, under 705
national courts, insulation from interference by 700
transparency 731–4
Arbitration Rules, amendments 790–1, 826
arbitrators, independence, impartiality and duty of disclosure
counsel, relationship with 799
president, challenge to 798
relevant provisions 793–4
request for disqualification 795–800
awards, timely disclosure of 775
conciliation 702–4
contract claims
national law, application of 105
vertical approach 98–9, 103–5
Contracting State
agreement to submit to jurisdiction, approval of 905–6
constituent subdivision or agency of 901–6
facilities available to 883–4
Convention
advantages of settlement under 1152
annulment procedure 1137–46
applicable international law 274
applicable law, issue of 1138–46
binding precedent, doctrine of 1190
compliance, expectation of 1173
conclusion of 726, 731
consent to arbitration 850
consolidation of claims, no provision for 1034
international law, role for 104–5
investment concept 64
investment criteria 65–6
investment, no definition of 63
investor, nationality 70–1, 73–7
juridical persons under 76
jurisdiction, determining 62–9
local remedies, exhaustion of 1026, 1046
origin of capital requirement 59
party autonomy, principle of 100
review of awards under 1135–51
contracting States 883–4
withdrawal from 883–4
creation of 731
definition issues, importance of 50
denial of benefit clauses 917–19
dispute settlement system
agreement as to 50
Additional Facility 704–7, 734
arbitration 698–702
conciliation 702–4
consent to jurisdiction 694
Convention, in 692
investment disputes 692
investors, initiation of mechanism by 82
national courts, overlap with 694–5
treaty and contractual claims 695
establishment of 698
investment
bank guarantees as 879–80
BIT interpretation 877–8
broad interpretation of 876–7
Build, Own, Operate and Transfer projects 880–2
definition, arbitral decisions on 878–82
dispute arising from 882
jurisdiction, required for 875–82
loans as 879
promissory notes as 878
investor-state dispute settlement body, as 9
jurisdiction
Additional Facility, under 906–8
admissibility contrasted 919–27
challenge to 943
conciliation and arbitration, as to 871
consent 871
dispute arising from investment 882
dispute, need for 875
Energy Charter Treaty, requirements 909–14
extent of 941
interpretation 872
investment, need for 875–82
investor element 51
legal nature, dispute of 873–5
non-justiciability of dispute 874
objections to 920
ratione materiae 871–82
(p. 1265) ratione personae 871–2
requirements, overview 870–2
review of case to establish 941–2
scope of reach 870–1
subject-matter 872–82
Main Facility 910
minority shareholders, protection of 84–6
multilateral investment rules, as
institutional anchor for 137–8
personal jurisdiction
agreement to submit to, approval by state 905–6
constituent subdivision or agency of contracting State 901–6
contracting State 883–4
designation of parties 903–5
nationality 884–901 see also nationality
natural persons 884–9
requirement 883
prima facie test of jurisdiction
breach of contract, as to 955
breach, raising questions of 947
broader perspective, allegations considered in 948–9
contract claims and treaty claims 948–50
early decision 942
expropriation, for 955–6
extent of determination 943
facts of case 951–2, 961
failure to meet 954–7
formulation of claims, acceptance of 946–8
general economic policy, no consideration of questions of 946
interpretation, approach to 942–3
legal foundation of case 951–2, 961
relief sought 951–2, 961
purpose of 80
recognition, enforcement and execution of awards
AIG Partners case 1181–2
Benvenuti & Bonfant case 1177–9
challenge to 1176
Convention provisions 1175–6
LETCO case 1179–80
Sedelmayer case 1182–5
SOABI case 1178–9
sovereign immunity arguments 1180–5, 1187
successful challenges, lack of 1186–7
review of awards
annulment procedure 1137–46
applicable law, issue of 1138–46
element of appeal, introduction of 1149
experience of 1146–50
mixed views on 1150–1
protection of awards 1145–6
requirements 1148
treaty claims
internationalization, expansion of 108–10
national law, role for 110–15
tribunal
access to hearings before 772–5
briefs and submissions, timely public disclosure of 771–2
constitution of 826
contract claims and treaty claims distinguished 968–71
inherent powers 733
initiative, limitation on 1210
new sources of law, raising 1237
opening up proceedings 733–4
premature claim to 970
previous decisions, reliance on 1189
procedure, decisions on 732
rules, choice of 769
transparency, consideration of 759
umpire or inquisitor, as 1210
International Chamber of Commerce
arbitration
advantages of 739
confidentiality 740
jurisdictional requirements 915–16
rules 739
civil servants, appointment of 810
disclosure requirement 809
independence and impartiality of 808–10
establishment of 739
jurisdictional requirements 915–16
(p. 1266) International Court of Justice
dispute settlement by 716–17
States, between 692
independence and impartiality of judges, challenge to 811–13
international economic relations, role in 1165–7
investment disputes in 716–17
jurisdiction
compulsory, declaration of acceptance 938
determination of 935
methodology for determining 937
provisional measures, to grant 939–40
ratione materiae 934–9
threshold for accepting claim 935–6
precedent, doctrine of 1189
prima facie test of jurisdiction
formulation of 940
jurisdiction ratione materiae 934–9
provisional measures, to grant 939–40
sources of international law applied by 1189
Statute, rejection of precedent value of decisions 1190
Supreme Investment Court, proposal for 1165–7
international crimes
concept of 550
international economic law
domestic practice, reflecting 183
international investment
notion of 586–91
International Investment Agreement
dispute settlement, venue for 150
home state rights under 7
host state's economic development, investment contribution to 68–9
investor protection 13–14
international investment agreements
admission see admission, right of
corporate social responsibility issues 37–8
developing countries, special and differential treatment for 36
dispute settlement 40–4, 1164–5
enforcement 39–4
flexibility in 14–15
home country measures 38–9
host country obligations, focus on 29
incentives 34
investment, definition
asset-based 54–5
Bilateral Investment Treaties, in 55–8
control element 60–1
formal requirements 54
ICSID, for purposes of 62–9
investment protection treaties, in 55–8
issues 50–2, 86–7
lists 57–8
national legislation, in 52–5
pre-investment expenditure 66–7
transfer of capital, as 58–62
investor
definition 69–86
definition issues 50, 86–7
nationality 69–86 see also investor
investor/investment protection, core issues
compensation 26
fair and equitable treatment 24–5
investment risk, issue of 25–6
most-favoured-nation standard 22–3
national treatment standard 22, 24
non-discrimination 23–4
property, taking 27–9
scope and definition 19–20
standards of treatment see standards of treatment
transparency 29–31
performance requirements 32–3
proliferation of 177
right of establishment see establishment, right of
rise in 256
standards of treatment see standards of treatment
state discretion 13
sustainable development, DraK agreement see sustainable development
(p. 1267) technology transfer 35–6
international investment law
approaches to 15
armed conflict, compensation for 26
current situation 191
development dimension
developing countries, special and differential treatment for 36
Doha work programme 31
incentives 33–4
performance requirements 31–3
technology transfer 35–6
dispute settlement 40–4
emerging principles 173–8
enforcement 39–4
good governance, issue of 15
hard law agreements 18
human rights, primacy of 159
incompatible provisions, jurisprudence
caution in 178
examination of awards 163
expropriation, compensation for 168–70
hazardous waste, disposal of 163–6, 170–3
nascent principles 179
Santa Elena v Costa Rica 168–70, 174
SD Myers v Canada 163–6, 213
SPP v Egypt 166–8
TECMED v Mexico 170–3
tourist complexes, development of 166–8
institutional factors 16–19
instrument, legal status of 17
internal disorder, compensation for 26
investor/investment protection, core issues
admission 20–2
entry, right to control 20–2
establishment, right of 20–2
fair and equitable treatment 24–5
full protection and security 22–6
investment risk, issue of 25–6
non-discrimination 23–4
property, taking 27–9
scope and definition 19–20
standards of treatment 22–6
transparency 29–31
liberalizing provisions, speed, scope and nature of 21–2
non-binding codes 18
non-investment obligations, and
burden, sharing 176–7
chronological sequence of obligations and information 175
contradictory, not being 156–7
impact of 155
inconsistency 157
jurisprudence 163–73
least restrictive measures 176
measure of compensation 176–7
overlap 156
parties, motivation of 175
peremptory norms, superior status of 178
treaties, relevance of 173–4
voluntary or non-voluntary 174–5
other rules of international law, overlap with 155
overlapping rules 162–3
protection of foreign investment, rules for 638–9
public international law, divergence of 178
soft law standards 18
sources 5, 16–19
state practice, mirroring evolution of 183
substantive standards
corporate social responsibility 37–8
development dimension 31–7
development, policy issues 19
home country measures 38–9
investor/investment protection, core issues 19–31
technical issues
dispute settlement 40–4
enforcement 39–4
institutional factors 16–19
sources 16–19
substantive standards 19–39
(p. 1268) international investment treaties
actual beneficiary of rights, not naming 993
arbitration under
investor-State 727–8
State-to-State 726–7
channelling of interests 996–7
claims by investor, control over 994
consent to arbitration see consent to arbitration
entry into 726
essential features 993
interpretation
formalism 302
government responsibility, level of 269
principle of effectiveness 268–9
investor, direct relationship with 1002
motion to dismiss in 957–60
nationality of claims 994–7
number of 725
object and purpose of 993
options under 996
single loss by investors with multiple nationalities, no provision for 995
source of individual rights, as
applicable procedural law 998
challenge and enforcement of awards 1001–2
channelling of interests 996–7
claims by investor, control over 994
damages claimed 1001
economic disputes, in 991–3
fork in the road provisions 998–1000
local remedies, exhaustion of 1000
nationality of claims 994–7
options under 996
proceedings, to commence 1002–3
relationship with investor 990–1
state, economic role of 306–7
taxation, treatment of see taxation
transparency obligations 625–8 see also transparency
umbrella clauses
attribution of conduct to states 576
breach of contract 579–80
commitment to observe obligations 577–8
contractual and treaty claims 576–7
contractual rights, conversion to treaty rights 575
ECT, of 580–1
examples of 576
inclusion of 575
interpretation 580
‘it’ problem 578–81
nature of contract, effect on 581
wording and application 575
waiver of protection granted by
conclusion 1006
individual as subject of international law 985–90
international arbitration, access to 984–5
possibility of 1003–4
source of individual rights 990–1002
valid, criteria for 1004–5
international investment tribunals
incompatible provisions, jurisprudence
caution in 178
examination of awards 163
expropriation, compensation for 168–70
hazardous waste, disposal of 163–6, 170–3
nascent principles 179
Santa Elena v Costa Rica 168–70, 174
SD Myers v Canada 163–6, 213
SPP v Egypt 166–8
TECMED v Mexico 170–3
tourist complexes, development of 166–8
regulatory rules invoked by 162–3
Vienna Convention, citing 159
International Labour Organization
code of conduct, involvement in 646–7
Committee on Multinational Enterprises 652–4
corporate social responsibility, definition 647
industrial relations issues 651–2
international labour standards 646–54
international rules and procedures, development of 8
(p. 1269) safety and health standards 651
vocational training and guidance policies 649
international law
accessibility of 1172
applicable rules of 273–4
claims against state, standing to bring 988–90
classical theory of 986
complementary rules of 160
customary and treaty law, rules arising from 160
duties of individuals 987–8
inconsistencies, resolving 157–63
individual as subject of 985–90
individual rights
applicable procedural law 998
challenge and enforcement of awards 1001–2
claims by investor, control over 994
damages claimed 1001
economic disputes, in 991–3
fork in the road provisions 998–1000
human rights 986–7
local remedies, exhaustion of 1000
nationality of claims 994–7
recognition of 986
source of 990–1002
interpretation, difficulty of 260
national law in conflict with 114–15
precedent in
de facto practice 1196
feature of system 1189
inconsistent decisions 1196–8
primary sources of 159
relations between states, governing 985
state of necessity, judging existence of 1198
subsidiary rules 160
UN Charter provisions prevailing in 158
International Law Commission
Articles on State Responsibility see state responsibility
establishment of 467
object of 467
international trade
FCN Treaties 184
historical background 183–7
investment, and 184
multilateral treaties 185–7
overall conditions of 120
peace, in 184
international trade law
state practice, mirroring evolution of 183
International Trade Organization
Havana Charter 184
international tribunals
awards, challenge and enforcement of 1001–2
damages claimed 1001
domestic courts, relationship with
characterization of claims 971–3
contemporary issues 963
contract claims and treaty claims distinguished 964–71
importance of 963
overview 1005
umbrella clauses, application of 974–83
waiver of protection granted by investment treaties 984–1005 see also international investment treaties
individuals, standing of 989–90
locus standi 6
umbrella clauses, application by
assimilation of breach 978
breach of treaty 975
broad interpretation 976
case-law development 974–9
contract disputes, not transforming to investment disputes 975
elevation of contractual issues, differing views on 1005–6
forum selection clauses, and 980
future of 979–83
inconsistent approach 979
limitation of scope 982
main approaches to 981
origin, analysis of 981
overview of cases 977
promissory note, failure to honour 974–5
qualification of scope 976
(p. 1270) reluctance to apply 978
requirement to observe obligations 976
internationalization
globalization, and 11
investment
bank guarantees as 879–80
BIT interpretation 877–8
broad interpretation of 876–7
Build, Own, Operate and Transfer projects 880–2
construction contract as 67
definition
arbitral decisions on 878–82
asset-based 54–5
Bilateral Investment Treaties, in 55–8
control element 60–1
Energy Charter Treaty, under 910, 912–13
formal requirements 54
host state's economic development, contribution to 68–9
ICSID, for purposes of 62–9
intangible rights 410–15
investment protection treaties, in 55–8
issues 50–2, 86–7
lists 57–8
multilateral investment rules, in 138–9
national legislation, in 52–5
pre-investment expenditure 66–7
shares etc, reference to 83
transfer of capital, as 58–62
historic context, in 875
loans as 879
performance guarantees as 67–8
pre-investment expenditure 66–7
promissory notes as 67, 878
size of, relevance 83
investment codes
protection of investment by 528
investment insurance
developments in 525
evolution 546
institutional mechanisms 546–7
Inter-Arab Investment Guarantee Corporation 535–7
investment guarantee schemes 525
Multilateral Investment Guarantee Agency see Multilateral Investment Guarantee Agency
national mechanisms 525, 530–1, 547
regional schemes 525, 530–1
Swiss Investment Risk Guarantee Agency 533–4
US Overseas Private Investment Corporation 531–3
investment obligations
other international obligations, overlap with 155
investment protection
transparency, and 635
Investment Risk Guarantee Agency (Switzerland)
beneficiary of guarantee 533–4
goal of 533
investment guarantee 534
investment supported by 533
investment treaty tribunals
basis of jurisdiction, identity 1194
earlier decision, rejection of 1196
legal principles, development of 1190–1
practice of 1191–5
precedent in
de facto practice 1196
inconsistent decisions 1196–8
precedent value of decisions, rejecting 1191
preliminary rulings 1203–5
previous decisions, authority of 1191–5
umbrella clauses, divergent interpretation of 1197
investor
definition
Energy Charter Treaty, under 910–12
issues 50, 86–7
nationality 69
diplomatic protection 82
feasibility of investment, assessment 640
host state, right of action against 7
international investment law, as actor in 7
international locus standi before tribunals 6
(p. 1271) legal developments, at heart of 7
nationality
acquisition of 74
ascertainment of 87
bilateral investment treaties, for purposes of 71
connection with state 72
corporation, of 75–81 see also corporation
decisive criterion of 69
evidence of 73
hunting 74
ICSID Convention, for purposes of 70–1, 73–7
more than one, having 71
natural person, of 70–4
responsibilities debate 638–42
shareholders as 81–6
state agreements 7
wide definition of 1010–12
Iran-US Claims Tribunal
amicus submissions 737–8
dispute settlement by 717–18
transparency, consideration of 758
judicial review
ad hoc arbitration, provision in 1173
appellation 1134–5
cassation 1134–5
systems of 1134
judiciary
independence of
England and Wales, in 818–19
France, in 816–18
national laws, generally 816
Switzerland, in 819–20
United States, in 820
Latin America
restrictive FDI laws in 228
lis alibi pendens
application of rule 1021
cross-boundary litigation, application in 1014
effect of 1013–14
general principle of law, as 1021
ILA Committee report 1022
ILA recommendations, applicability of 1024–5, 1046
investment arbitration, recognition and application in 1022–4
parallel proceedings see parallel proceedings
stricto sensu 1022
loans
investments, as 879
London Court of International Arbitration
arbitrators, independence and impartiality of 810–11
challenges to arbitrators, publication of decisions 741
confidentiality, obligation of 740
jurisdictional requirements 916
market access
admission and establishment distinguished 229–30
permanent right of 230
most-favoured-nation standard
arbitral tribunals, functions addressed by 381–7
benchmark rights 364
Bilateral Investment Treaties 17, 22–4
automatic adjustment of standards 372
Canadian, provisions of 403
Chile, by 385
clauses 190
clauses based in other BITs, reliance on 397
consent to arbitration, extension to 396–402
dispute settlement, application to 387–401
ejusdem generis principle, application of 395
equality of treatment 371
exceptions 372–3
ICSID arbitration, resort to 393
investor as object of 370
multilateral agreements distinguished 368
Norway and Hungary, between 386
post-establishment phase, for 370
(p. 1272) procedural matters 387–401
resort to national courts, requirement 394
retroactive application 391
returns on investments 371
transfers of payments 371
Turkey and Pakistan, between 385–6
war, consequences of 371–2
will of both parties, discernible 391
comparative treatments, requirement 366
consent to arbitration 851–5
contract-based claims, jurisdiction over 398
controversial issue, as 366–7
destiny of 403
draft Multilateral Agreement on Investment 380–1
ejusdem generis principle 365, 395
Energy Charter Treaty 377–9
essential features of 365–7
extensive construction of 386–7
fair and equitable treatment standard, and 382–4
foreign investors and/or investments, treatment of 381
formulation 366
GATS Agreement 193–5, 377–8
GATT, protection in 24
in like circumstances requirement 402
international case-law on
contract-based claims, jurisdiction over 398
liability standards 382
procedural matters 387–401
substantive treatment 381–7
international instruments, in
APEC Non-Binding Investment
Principles 379–80
ASEAN Investment Area, Framework Agreement 380, 398–9
draft Multilateral Agreement on Investment 380–1
Energy Charter Treaty 377–9
free trade agreements 374–6
FTAA Draft Agreement 376, 403
GATS Agreement 377–8
in like circumstances, reference to 375
Mercosur Protocols 376–7
NAFTA 373–4
non-binding 379–80
pre-entry stage, not applying to 375
World Bank Guidelines 379
international obligations and rights 401–2
investor/investment protection, core issues 22–3
legitimate extension of rights and benefits 390
level of 369
liability standards, application in relation to 382
NAFTA, provisions of 383–5
procedural matters 387–401
procedural uniformity 367
prudence, test of 295
relative, being 364
substantive treatment 381–7
taxation measures see taxation
treaty clause, as
bilateral investment treaties 368, 370–3
host state control of 369
implementation 368
international instruments 373–81
multilateral agreements 368
provision in 367
scope, variation in 369
unconditional 368
undesirable obligations, source of 404
WTO Investment Agreement 218
Multilateral Agreement on Investment
admissions, establishment and right to control entry 21
armed conflict, compensation for 26
consolidation of multiple proceedings, provision for 1034
criticism of 128
defeat of 127, 134
dispute settlement provisions 148–9
draft, preliminary exceptions to 124
environmental and labour standards 146–8
establishment, right of 143–4
expropriation and taxation provisions 343–4
(p. 1273) failure of 7
internal disorder, compensation for 26
investment, definition 138
investment incentives 145
investment protection provisions 142–3
investor and investment protection instrument, as 128
investor protection 642
investor rights and responsibilities 141
most-favoured-nation standard 380–1
Negotiating Text 127–8
negotiations
abandonment 188
deadline, extension 126
embarking on 126
OECD members, among 135
suspension of 127
performance requirements 145
philosophy of 126
taxation issues 145
Multilateral Investment Guarantee Agency
application for guarantee 540
Board of Directors 539
cooperation 538, 541
Council of Governors 539
covered risks 541–3
dispute settlement 544–6
eligible investment and investors 539–41
establishment of 537
members 539
mission of 538
motivation for 538
non-commercial risks 543
organization 538–9
proposal for 537
subrogation 544–6
terms of coverage 543–4
multilateral investment rules
advantages of 133
core GATT principles 125
dispute settlement provisions 148–51
environmental and labour standards 146–8
establishment, right of 143–5
framework, establishment of 130–1
future, look of 134–51
future negotiations, institutional setting for 135–8
government intervention, limiting scope for 132
guiding principles 135 hierarchy of norms
home and host countries, attitudes of 133
ICSID as institutional anchor of 137–8
inevitability 151
investment, definition 138–9
investment incentives 145
investment protection provisions 130, 142–3
investors, binding obligations on 142
key questions 135
mandate for negotiations 125
opposition to 131–2
patchwork, overcoming deficiencies of 130
performance requirements 145
previous attempts at negotiating 125–9
scope of 138–51
starting point for 134
taxation issues 145
transnational corporations, application to 139–42
UNCTAD as forum for negotiations 138
uniform international system, providing 132–3
WTO, negotiation in 136–7
multilateral investment treaties
increase in number of 460
non-compliance with obligations, excuse for 461
states, between 463
multinational corporations
economic colonialism 185
market-seeking investment aims 234
multinational enterprises
corporate social responsibility see corporate social responsibility
employment issues 648–50
environmental issues
awareness of 662
customary international law, implications of 667–8
damage, compensation for 668
hard obligations 666–7
(p. 1274) host country, imposition of
performance requirements 670–2
IIAs, effect on national policy 669–72
lowering of standards 671–2
OECD Guidelines 666
substantive content 662
transboundary escapes 669
voluntary codes 662–4
home country as watchdog over 673
human rights standards 654–62
human rights violation, direct responsibility for 674–5
IGOs, monitoring by 678–9
ILO Committee 652–4
industrial relations issues 651–2
investor, definition 50
legal developments, at heart of 7
monitoring and enforcement 673–80
new geo-economy 11
production and distribution chains 11
safety and health standards 651
security arrangements 660
subject of human rights responsibilities, as 655
transnational production chains, growth of 5
transparency 675–8
truly global 11
violation of UN Norms, compensation for 679–80
workers' grievances 652
national treatment standard
ability to participate in construction project 294
analysis of factors 293
awards 297–8
balance of interests 298
benchmark rights 364
Bilateral Investment Treaties 17, 22, 24
breach of 288
comparators 292–5
compensation for breach
approaches to 1083–4
contractual payment obligations, in terms of 1085
discretion, exercise of 1084
lost and delayed business, analysis of 1085–6
methodology, lack of definition 1084
tax rebate as basis for 1084–5
environmental testing, eligibility for 294
General Agreement on Trade in Services, obligations 195–6, 211
good faith, principle of 290–6
investor/investment protection, as core issue 22, 24
jurisprudence 1084
NAFTA, in 213–15
proper, meaning 290–1
prudence and good faith 290–6
relative, being 364
substantive scope of 1083
taxation
investment treaties, provisions in 321–2
substantive investment obligations, application of 325–8
WTO intent to ascertain 214–15
nationality
certificate of 886–7
challenge to 886
citizenship as connecting factor 887
corporate
agreement to treat as national of another contracting state 895
BIT definition, interpretation of 898–900
features of 897–900
foreign control, extent of 896
foreign-controlled corporations 893–7
incorporation or control, test of 890–3
migratory 897–8
restructuring, timing of 900
ICSID jurisdiction, for
agreement to treat company as national
of another contracting state 895
certificate of 886–7
challenge to 886
corporate 890–3
corporate restructuring, timing of 900
double 885, 887
effective 885–6
(p. 1275) foreign control, extent of 896
foreign-controlled corporations 893–7
incorporation or control, test of 890–3
juridical person, of 889
migratory 897–8
natural persons 884–9
shareholders, arising through 900–1
investor, of see investor
juridical person, of 889
natural persons 884–9
nature of 888
real and effective 887–8
shareholders, of 900–1
nationalization
formal expropriation, as 308
former frequency of 308
large-scale 308
sovereignty, in name of 527
natural resources
permanent sovereignty over 526
necessity
affirmative requirements
essential interests of other states, impairment of 485–8
grave and imminent peril 481–3
invoking state, essential interest of 476–81
only means of guiding vital interest, as 483–5
breach of obligation, allowing for 465
case-law 463
circumstance precluding wrongfulness, judging existence of
recurrent question of 503
self-judging 503–5, 521
time for assessing 506–7
compensation
actual losses, limited to 516
calculation of 513–14
correct approach to 511–13
excusal from 514–15
issue of 510
non-culpability, effect of 516
successful defence, in case of 512
suspension of obligation 515
customary international law elements of
affirmative requirements 476–88
cumulative factor 475, 480
essential interests of other states, impairment of 485–8
exceptions 488–92
grave and imminent peril 481–3
ICJ approach 474
invoking state, essential interest of 476–81
only means of guiding vital interest, as 483–5
defence
discriminatory 497
economic wrongs and damages, relationship with 463
exculpatory 510
far-reaching nature of 462
international obligation precluding use of 488–90
obligations, relationship with 463
raising 520–1
relevance of 461
treaty-based 492–8
doctrine
development 463–73
formulation of 464
invoking 461
ecological 478
economic 478–80, 493 506–7
emergency measures 480–1
environmental 476–8
essential interests of other states, impairment of 485–8
essential security exceptions 492–6, 521
establishing state of, effect of
compensation 510–16
considerations 507
duration of circumstances 508–10
international wrongful event, not committing 507
invoking state, appropriate role of 509
exceptions
essential security 489
international obligation precluding use of defence 488–90
jus cogens 492
limits 488
(p. 1276) state having contributed to situation 490–2
force majeure distinguished 461–2, 465
forward looking 506
grave and imminent peril 481–3
International Law Commission Articles on State Responsibility 461
Ago report 469
bases for discussion 466–7
codification, approach to 468
draft 470
investor-State context, not designed for use in 487
state of necessity 467–71
invoking state, essential interest of 476–81
jus cogens 492
only means of guiding vital interest, as 483–5
risk allocation 522
self-defence, and 465
self-judging 503–5, 521
self-preservation, concept of 465–6
sovereign debt obligations 516–20
specific and limited definition 468
state having contributed to situation 490–2
state of 467–71
treaty-based defence, as 492–8
wrongfulness, precluding 475
New International Economic Order
emergence of 527
establishment of 16, 364
establishment, call for 4
non-governmental organizations
corporate social responsibility, calls for 642
foreign direct investment process, role in 5
international investment, as actors in 8
North American Free Trade Agreement (NAFTA)
arbitral case-law 212
Chapter 11
regional free trade agreements, as model for 209–16
scope of application 210
summary analysis of 209
WTO investment agreement, as precedent for 217
Chapter 11 tribunals 736–7
access to proceedings 743–6
awards, access to 750
briefs and submissions, timely public disclosure of 770–1
challenge to members of 814
determining jurisdiction 944
documents, access to 743–5
inherent powers 736
oral submissions 749
procedural discretion 735–6
procedural issues, submissions on 750
procedural provisions, determination of 944
provision of input to 746–50
public hearings 745–6
public participation 750
rules governing 741
rules, selection of 741–2
standardized registration of claims 742
transparency 750
consideration of 759–60
UNCITRAL Rules, under 735
written submissions 746–9
coming into force 741
consent to arbitration 850
consolidation of claims, provision for 1034
cross-border investment opportunities, increasing 629, 632
customary international law standard of treatment 1190
denial of benefit clause 917–19
environmental treaties prevailing over 165
fair and equitable standard 383–5
Free Trade Agreements, full liberalization model 243–4
free trade area, creation of 741
GATT, relationship with 161
(p. 1277) indirect expropriation, prohibition 421
interpretation
institutionalized mechanisms 1200–5
official 1200
investment chapter 727
investment inducements, regulation of 211
investment protection guarantees 211
jurisdiction
admissibility contrasted 920–1
jurisdictional requirements 908–9
most-favoured-nation standard 373–4
national treatment obligations 213–15
other international agreements, relationship with 165
policy goals, tests for 297
precedent value of decisions, rejecting 1190
proper national treatment, meaning of 290–3
top-down approach 210
transparency obligations 625
waiver provisions 1028–9
Organization for Economic Cooperation
international rules and procedures, development of 8
Overseas Private Investment Corporation (US)
Board of Directors 532
establishment of 531
goal of 532
insurance issued by 533
investment supported by 532
projects submitted to 532
parallel proceedings
competing procedures 1013
consolidation see consolidation of claims
inconsistent and conflicting decisions, risk of 1045
investor, wide definition of 1010–12
issue of 1022
jurisdictional overlap, in case of 1012–13
legal community, attitude of 1013
lis pendens see lis alibi pendens
phenomenon of 1009–10
procedural rules for 1010
Pyramids case 1023
res judicata see res judicata
treaty-based provisions regulating or preventing
fork-in-the-road clauses 1026–8
interim or injunctive relief 1027
local remedies, exhaustion of 1025–6
rationale 1025
umbrella clause 1030–1, 1046
waiver 1028–9
treaty/contract claims, coexistence of 1012
performance guarantees
investment, whether 67–8
performance requirements
environmental issues 670–2
multilateral investment rules, in 145
Permanent Court of International Justice
individual as subject of international law, opinion on 987
Possible Multilateral Framework on Investment (PMFI)
proposal for 188
promissory notes
failure to honour, claim as to 974–5
investments, as 67, 878
property
expropriation see expropriation
improper interference with 29
protected rights, scope of 410–17
taking
compensation 28
expropriation 27–9
nationalization 27
public international law
fundamental human rights, recognition of 177
inconsistencies among international law rules, regulating 157
international investment law, divergence of 178
jus cogens rules 157–8
principles of 157–63
state responsibility, role of 550
public ownership
state, economic role of 306–7
(p. 1278) regional free trade agreements (RTAs)
development, geared to 209
flexibility and selectivity 208
investment-related trade measures, as 208
issues addressed by 220
NAFTA Chapter 11 as model for 209–16
net work, maintenance of 219
Preferential Trade and Liberalization Agreements 207
proliferation of 207–9, 220
WTO-plus 207
remedies see also compensation
damages
restitution
flexibility in awarding 1062
inherent power to award 1061
subcategories of 1061
res judicata
cross-boundary litigation, application in 1014
identity of grounds 1018
identity of parties 1019–20
identity of relief 1018
ILA recommendations, applicability of 1020–1, 1046
investment arbitration, recognition and application in 1015–17
meaning 1014
parallel proceedings see parallel proceedings
positive effect 1015
requirements 1017–20
rule, effect of 1013
same legal order requirement 1017
triple identity criteria 1014
restitution
administrative law preference for 1056
first-ranked remedy, as 1057
practical primacy of compensation over, rationale 1058–62
qualification as remedy 1060
sensitivity 1060
self-defence
compensation, not resulting in 511
necessity, and 465
wrongfulness, precluding 465–6
shareholders
foreign, limits on 237
ICSID cases, standing in 84–6
indirect damages, recovery of 1101–3
investors in own right, as 81–6
minority, protection of 84–6
protection of 81–2
size of investment, relevance 83
sovereign debt
foreign bondholders, owned by 517–18
individual, position of 519
national courts, relief in 518–19
necessity, defence of 516–20
specific performance
remedy of 1060
standards of treatment
balancing act 299–301
comparative and absolute 261–4
compensation for breach see compensation
conflicting decisions 267
due process of law 271
existing models 301–2
expropriation provisions 266–7
fair and equitable see fair and equitable standard
foreign direct investment, in 6
good faith, principle of 272–90 see also good faith, principle of
investment protection, of 300
investment treaty arbitration, in 260–1
investor/investment protection, core issues 22–6
legitimate expectation, single theme of 299, 302
level of interference 268
minimum 261–2
abuse of authority 284–7
application of 271
context for 270–1
good faith, principle of 272–90 see also good faith, principle of
inclusion of 270
legitimate expectation, detrimental reliance on 275–7
legitimate expectation, single theme of 299–301
(p. 1279) regulatory fairness 277–83
transparency, principle of 277–83
variations of 269
most-favoured-nation see most-favoured-nation standard
national treatment standard see national treatment standard
non-discrimination 23–4, 260–2
good faith, and 296–9
prima facie breach 295
test 289
overlap of obligations 268
policy goals, tests for 297
review, international standard of 299–300
single 302
taxation, treatment of see taxation
treaty and customary international law, comparison 264–72
state responsibility
attribution of conduct to states
alien investor, causing injury to 569
basic rules 551–2
causation, analysis of 569–70
central role of rules 582
contractual and treaty claims 563–4, 573, 576–7
directed or controlled by state 556–60
ex officio consideration 570
federal states, position of 571–5
functional test 556
general rules 554–71
governmental activity, body exercising 560
importance of 550
international claims based on 573
international law rules, application of 580
joint tortfeasors, concept of 567, 569
jurisdiction, issue of 561–2
local or regional authorities, of 574
minister, role and functions of 560–1
organs of state, of 554
private company, of 557–60
private individuals, of 568–9
public function, discharge of 559
second-level examination of state obligations 567
separate legal personality, organs with 571
standard of responsibility, separate from 552
state entity, determining 561
state organ, lack of definition 555–6
State Treasury, of 570–1
state-owned enterprise, activities of 564–8
structural test 558–9
subordinate, contractual obligations of 579
superior or subordinate officials, acts of 555
umbrella clauses 575–82
villagers, seizure and occupation of land by 562–3
authority, exceeding 552
characterization of act as wrong 551
contractual 596–7
federal states, position of 571–5
fundamental principle 596
immorality of contract 597
International Law Commission Articles 461
Ago report 469, 472–3
applicability 552–4
bases for discussion 466–7
codification, approach to 468
conduct of persons or entities, regulation of 551
draft 470
force majeure 471–3
foreign state as contractual party, application where 553
general rules of attribution 554–71
intentionally wrongful act, application in case of 552–3
investor-State context, not designed for use in 487
organs of state, conduct of 554
state of necessity 467–71
testing ground for 582
work of 466, 550
wrongfulness of act 473
(p. 1280) investment arbitration, crucial to 550
law of 550–1
public international law, role in 550
reliance on internal law to evade 555
standard of 552
summary of law 551
Supreme Investment Court
constitutional role 1167
proposal for 1165–7
sustainable development
Draft International Investment Agreement 121–2, 134–5, 144
Dispute Settlement Body 150–1
taxation
bona fide regulatory measure, as 435–6
capital projects, funding 315
capital transfer
conflicting interests 332–3
consultation 333
fiscal instability 332
freedom, guarantee of 333
repatriation, right of 331–2
restrictions on 335–6
transfer pricing 332
withholding tax 334–6
constitutional law controls 312–13
definition 318 disproportionate increases as indirect
expropriation 451
disputes see disputes
expropriation, and
arbitral jurisprudence 347–52
customs and tax exemption, withdrawal of 349–50
damages claim 352
draft MAI provisions 343–4
economic value of investment, destroying 342
indirect 343–5, 348, 350–1
joint tax consultation 352–4
legally camouflaged 342
licence to operate, withdrawal of 349
normal practice 345–6
OECD member states, attitudes of 343–4
particular investors, singling out 346–7
production tax, imposition of 348
red flag 345, 347
taking, equivalence to 348–9
tax filter 352–4
tax refund right 349
tensions 341
veto 352–4
foreign investment cycle, in 309
foreign investors and host states, disputes between 307
foreign investors, squeezing 309
general principles, application of law constrained by 356–7
government control 317
history of 314–17
international law controls 312–13
investment agreement/authorization, and
breach, dispute as to 337–9
requirement of 336
tax carve-out 339–40
tax obligations in 337
tax stabilization clauses 340–1
investment incentives, revocation of 309
investment treaties, provisions in
arbitration, effective protection by 322
definitional problem 317–20
direct and indirect taxes 320–1
enforcement 311
fair and equitable treatment 328–31
fees distinguished 317
governments, disciplines imposed on 313
investors, invoked by 307
most-favoured-nation measures 321, 325–8
national treatment measures 321–2, 325–8
overview of treatment 306
royalties distinguished 318
scope of control 317–24
tax conventions, inconsistency with 323
tensions 357
types of taxes covered 320–4
(p. 1281) legitimate expectations 341, 355
ration to GDP 322
resistance to 316
social and political objectives, use for 323
states, use of powers by 310
substantive investment obligations, application of
arbitrability 324
capital transfer 331–6
extent of 324
fair and equitable treatment 328–31
investment agreement/authorization 336–41
most-favoured-nation measures 325–8
national treatment measures 325–8
withholding tax 334–6
transnational bribery, treatment of 589
transparency 354–7
treaties
double-taxation 311
mutual agreement procedure 312
tax cooperation agreements 311
withholding tax imposed on capital transfers 334–6
technology transfer
central concern, as 35–6
transnational corporations
conduct, guidelines for 140–1
human rights protection, duty of 140
international economic relations, role in 139–40
meaning 5
multilateral investment rules, application of 139–42
transparency
arbitration see arbitration
bilateral investment treaties
early, no provision in 618, 622
new philosophy 627
US, by 623–6
corporate action, of 675–8
deep analysis 627
disclosure requirement, extent of 30
dispute settlement process, in 44
expansion of concept 626–7
expropriation, finding of 447–8
fair and equitable treatment, and 628–34
freedom of commerce and navigation treaties 622
GATS, principle of 619–20
GATT Tokyo Round codes, in 622–2
government procurement practices, in 205
home country obligations 30
international investment treaties, of 29–31
obligations in 625–8
investment protection, and 635
NAFTA, aim of 625
OECD Guidelines on Disclosure 676–7
origin 634
overview 618–19
public availability of information, securing 635
regulatory 277–83
requirement of 618
safeguards and exceptions 31
significance of 619–24
taxation, and 354–7
technical problem, as 622
trade, in 618, 622
WTO Agreements, in 619–21
treaties
conficting
parties not identical, where 161–2
public international law principles 157–63
rights and international obligations, relationship of 160–1
interrelation of 198–9
taxation, treatment of see taxation
titles, identification of subject-matter by 198
UN Conference on Trade and Development (UNCTAD)
international rules and procedures, development of 9
investment issues, study of 189
multilateral investment rules, as forum for negotiation of 138
work of 13–14
UN Global Compact
standards 644
(p. 1282) UN Sub-Commission on Human Rights
international rules and procedures, development of 8–9
UNCITRAL
arbitration, jurisdictional requirements 914–15
Arbitration Rules 735–8
independence and impartiality of arbitrator 807
transparency, tribunals considering 760
Model Law 735, 765
review of awards 1143–5
Rules
consolidation of claims, no provision for 1034
jurisdiction and admissibility contrasted 920–1
jurisdictional requirements 914–15
war crimes
trial of, London Agreement 988
World Bank
Guidelines on the Treatment of Foreign Direct Investment 379
instruments, most-favoured-nation clause 379
investor-state dispute settlement body, establishment of 9
Multilateral Investment Guarantee Agency 9
World Trade Organization
Agreement on Trade-Related Measures (TRIMs) see Agreement on Trade-Related Measures (TRIMs)
agriculture, disagreement as to 129
appellate system
advantages of 1163
relevance of 1162–5
success of 1157
customary international law, application of 213
dispute settlement system
bodies, case-law 213
closed-circuit broadcast of 774
code of conduct 815–16
IIA system compared 1164–5
investment disputes, use for 1163–4
Panels 815–16
Doha Ministerial Declaration 188
dormant multilateralism 206
foreign investment, agreements referring to 192
General Agreement on Trade in Services (GATS) see General Agreement on Trade in Services (GATS)
instruments, principle of transparency 619–21
international trade conditions, setting 120
Investment Agreement
balancing goals 217–18
investment incentives 219
investor protection 219
MFN and national treatment, exclusion of 218
NAFTA Chapter 11 as precedent 217
non-discrimination standard 218
performance requirements 219
possible framework for 216–19
settlement of disputes 219
investment rules 7
multilateral investment rules, as form for pursuing 191
multilateral rules, attempt to negotiate 121
national treatment, intent to ascertain 214–15
self-contained regime, tag of 212
Singapore Issues 129–31
trade-related disputes 1157
Uruguay Round agreements 123
investment dimension 187
protection of trade 190
working groups
establishment of 129
inactivity 130
lessons from 130–3
Relationship between Trade and Investment, on 188
trade and investment, mandate to study 136