114 results
2 - Conceptualising Trust in the Social Rights Context
- David Vitale, University of Warwick
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- Book:
- Trust, Courts and Social Rights
- Published online:
- 08 February 2024
- Print publication:
- 15 February 2024, pp 26-57
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This chapter lays the necessary conceptual foundation for the book’s proposed trust-based framework. It draws on theoretical and empirical scholarship on trust to offer a conceptualisation of trust in the social rights context. It first envisages trust as relational, meaning that trust may only arise in a relationship that contains three elements: control, discretion/uncertainty and vulnerability (a ‘trust relationship’). Secondly, it defines trust in a trust relationship as a set of three expectations held by a truster about a trustee: an expectation that the trustee will exercise goodwill towards the truster (‘expectation of goodwill’); an expectation that the trustee will exercise competence towards the truster (‘expectation of competence’); and an expectation that the trustee will fulfil her fiduciary responsibility (if any) to the truster (‘expectation of fiduciary responsibility’). The chapter then applies this conceptualisation to the relationship between citizens and the elected branches of government with respect to social rights (the ‘citizen-government relationship’), characterising it as a trust relationship and defining trust in it.
1 - From Procedural to Substantive Accountability in EMU Governance
- from Part I - (Re)theorising Accountability in EMU
- Edited by Mark Dawson, Hertie School, Berlin
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- Book:
- Substantive Accountability in Europe's New Economic Governance
- Published online:
- 23 November 2023
- Print publication:
- 07 December 2023, pp 19-44
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This chapter provides the volumes general conceptual framework. It begins by addressing why new approaches to accountability are needed, arguing that accountability literature has reached a stalemate as a result of an impasse between deductive and inductive approaches to accountability in the EU. It then argues that overcoming the stalemate requires developing a generalised framework of what accountability is for, deriving four accountability goods to be used in subsequent chapters. The chapter argues that each of the goods can be delivered in procedural or substantive ways, focusing either on the process by which decisions are made or the substantive worth of decisions themselves. The chapter concludes by discussing the strengths and weaknesses of both varieties of accountability before mapping out how the concepts will be applied across policy fields and institutions in subsequent chapters.
Chapter 7 - Before the King’s Most Honourable Council
- from Part III - Delivering and Contesting Justice
- Laura Flannigan, University of Oxford
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- Book:
- Royal Justice and the Making of the Tudor Commonwealth, 1485–1547
- Published online:
- 02 November 2023
- Print publication:
- 16 November 2023, pp 173-202
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Chapter 7 turns to the recipients of petitions for royal justice and their initiation of litigation. The chapter begins by weighing up the evidence for direct royal involvement in these judicial processes, with particular attention paid to a set of documents signed by Henry VII and Henry VIII personally. Otherwise, based on a survey of the signatures and annotations scattered across the Court of Requests’ early Tudor archive, this chapter identifies the men who delivered justice in this tribunal day to day. Mapping onto the evolutionary trajectory set out in Chapter 3, the overall impression is of transition from a diverse and changeable group of bill handlers within the royal household under Henry VII, followed by a spell in which the household clergy oversaw all business in Requests, and culminating in a smaller quorum of legally trained judges and Masters of Requests by the end of the period. The chapter then spells out the procedures followed once a petition was in the hands of this frontline personnel, and the measures they took to preserve the traditional prioritisation of the poor litigant.
7 - Recursion
- from Part II - Computation
- Fabrizio Montesi, University of Southern Denmark
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- Book:
- Introduction to Choreographies
- Published online:
- 11 May 2023
- Print publication:
- 25 May 2023, pp 134-155
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The syntax of choreographies is enhanced with the possibility of writing and invoking recursive procedures, yielding the language of Recursive Choreographies. This opens the door to modelling protocols that allow for retries and data streams of unbounded length. The language of process implementations and the notion of EPP are updated accordingly.
12 - Procedure in Contentious Cases: Evolution and Flexibility
- from Part II - The ICJ and International Dispute Settlement
- Edited by Carlos Espósito, Universidad Autónoma de Madrid, Kate Parlett, Twenty Essex, London
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- Book:
- The Cambridge Companion to the International Court of Justice
- Published online:
- 18 May 2023
- Print publication:
- 06 April 2023, pp 247-276
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This chapter examines specific aspects of the Court’s procedure in contentious cases. The authors focus on the key features of procedure: the institution of proceedings; provisional measures; preliminary objections; intervention; and non-appearance. For each of these aspects of procedure, the authors set out the current rules and practice, commenting on the way in which they have evolved, and making some suggestions for further innovation by the Court. They note that there have been recent calls urging he Court to codify aspects of its practice on procedural issues into generally applicable rules. While this might seem an attractive approach, the authors argue that this has the potential to unduly restrict the way in which the Court addresses cases – each of which may have its own particular procedural needs. They emphasise the need for the Court not to be overly prescriptive, but to ensure that it retains power to ensure a fair and just outcome in each particular case.
15 - States as Participants in International Arbitration
- from Part III - Stakeholders in Arbitration
- Edited by Stefan Kröll, Andrea K. Bjorklund, McGill University, Montréal, Franco Ferrari, New York University
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- Book:
- Cambridge Compendium of International Commercial and Investment Arbitration
- Published online:
- 18 February 2023
- Print publication:
- 02 March 2023, pp 424-438
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This chapter considers the various functions of States in international commercial and investment arbitration, which are essentially twofold.First, States are legislators and the creators of the system, and they also assist its development through their conduct which informs the interpretation of relevant treaties, such as BITs.Secondly, States are also parties to such proceedings, usually as the respondent to a claim, but also possibly also as the claimant, as a counter-claimant, and as a non-party intervener.This chapter then considers issues faced by States when acting as the respondent, and discusses how States might best prepare for and handle such disputes, and it also identifies various procedural issues which are likely to arise in such arbitral proceedings.It concludes that States have a complex combination of roles in international arbitration, and that the challenges in responding to claims can be managed if States are willing to learn from the decades of experience which States now have of participating in international arbitration proceedings.
5 - Expert and Experiential Evidence
- Jaime Lindsey, University of Essex
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- Book:
- Reimagining the Court of Protection
- Published online:
- 17 September 2022
- Print publication:
- 15 September 2022, pp 148-188
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Chapter 5 explores the use of expert and experiential evidence in the CoP, particularly analysing the contribution of the evidence given by the Person, linking with the arguments set out in Chapters 3 and 4. Analysing the empirical data, the chapter argues that the current hierarchy of evidence in the CoP undermines access to justice for the Person at the centre of proceedings and that changes are required to rebalance the evidential practices to achieve a more just process. The chapter starts with an overview of the use of evidence in proceedings, before turning to the hierarchies of knowledge, exploring the underpinning evidential justifications for both expert and experiential knowledge claims and the differing value attributed to each. Following analysis of the hierarchy of evidence, it is explained how this impacts upon access to justice and how this shows that the CoP has failed to secure procedural justice in this regard. The final section includes some examples of possible reforms to CoP evidential practices to address the procedural justice problem identified.
3 - Instruments of Credible Reasoning
- Edward H. Stiglitz, Cornell University, New York
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- Book:
- The Reasoning State
- Published online:
- 16 June 2022
- Print publication:
- 30 June 2022, pp 71-100
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This chapter is the first of two chapters that uses the theory of the reasoning state to harmonize our understanding of other debates. There are two main existing theories of administrative procedure and law. An older, normative theory from the legal tradition argues that administrative law exists to promote values of fairness, transparency, and deliberation. A more recent theory, advocated by Mat McCubbins, Roger Noll, and Barry Weingast, is that administrative law exists to promote political control over administrative bodies. The theory of the reasoning state suggests another view. It indicates the positive value of fairness, transparency, and deliberation in administrative law. Those features, long thought central by legal scholars, lacked a positive foundation. Yet they all serve to promote the publicly credible reasoning of administrative bodies, core to the political value of delegated authority.
19 - Judicial Review of Administrative Action: Theory, Procedure and Remedies
- from Part VI - Accountability (II): The Courts
- Roger Masterman, Colin Murray
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- Book:
- Constitutional and Administrative Law
- Published online:
- 19 May 2022
- Print publication:
- 02 June 2022, pp 581-621
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Much of this book has mapped the principles underpinning the UK Constitution. Judicial review provides an outlet by which those affected by government actions (including individuals, companies, pressure groups, and even other public bodies) can approach the courts to examine the lawfulness of such actions. It is the jurisdiction through which many of the most celebrated cases relating to the rule of law and separation of powers have been decided. The exercise of this jurisdiction therefore defines the courts’ relationship with other branches of government. This chapter assesses the basis for, and boundaries of, judicial review. It also examines the procedure by which judicial review is initiated and the remedies available for successful claimants.
2 - New Directions for Evidence Science, Complex Adaptive Systems, and a Possibly Unprovable Hypothesis About Human Flourishing
- from Part I - Evidence As an Area of Knowledge
- Edited by Jordi Ferrer Beltrán, Carmen Vázquez
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- Book:
- Evidential Legal Reasoning
- Published online:
- 05 May 2022
- Print publication:
- 19 May 2022, pp 34-50
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Trials, legal systems, governments, and market economies are all complex adaptive systems. Viewing them in that light opens up new avenues for research, and leads to a possibly unprovable supposition that human flourishing well be enhanced at the intersection of societies with a commitment to the rule of law that embrace free elections, market economies and responsive legal systems of which the common law is the paradigmatic example. These complex adaptive systems have the advantage of feedback mechanisms that may facilitate the intelligent exploitation of the vast amount of information contained in each of the systems.
3 - Procedural Convergence in International Courts and Tribunals
- Edited by Chiara Giorgetti, University of Richmond, Mark Pollack, Temple University, Philadelphia
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- Book:
- Beyond Fragmentation
- Published online:
- 28 April 2022
- Print publication:
- 12 May 2022, pp 87-112
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No governing international text or generally accepted doctrine defines the procedure to be applied by international courts and tribunals. Yet these institutions’ tasks pose common challenges: providing notice of a dispute, defining its nature and scope, determining the legal rules, marshalling and assessing evidence, finding facts and applying legal rules to them, and then recording and communicating the result. There often is substantial similarity – indeed, convergence – in how courts and tribunals go about these tasks. This chapter examines some of the factors and institutions that contribute to this procedural harmonization among institutions dealing with disputes between parties from different countries and legal cultures. It looks at the shared historical foundations of important procedural practices, the influence of intergovernmental and nongovernmental organizations, the roles individuals sometimes play in transmitting “legal technology” between institutions, and the effect of competition among institutions seeking to meet the needs of their “customers.” It also notes areas where procedure can diverge, as users look for new ways to address procedural problems.
2 - Theoretic Background and Methodology
- Isabel Lischewski, Westfälische Wilhelms-Universität Münster, Germany
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- Book:
- Lawful by Design
- Published online:
- 13 January 2022
- Print publication:
- 20 January 2022, pp 6-62
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GAL is one of the most ambitious projects to capture the role of procedure in global governance. Other concepts are briefly introduced and compared. The idea of procedural justice as akin to GAL in scope but focusing on perceptions of fairness and legitimacy rather than normativity emerges.
The main strands of international relations theory regarding institutions are briefly introduced. The work focuses on rational choice, notably Rational Institutional Design theory.
To unite the concept of procedural justice with the perspective and methods of rational institutional design, the factor of state interest is studied. It is shown how state interest can operate even within nominally private institutions and which factors determine whether and how a state is interested in introducing procedural justice.
The codebook variables creating the matrix of sensitivity of state interest - quantitative and qualitative procedural density is introduced. The mode of sample collection is explained.
4 - The Influence of Law Firms in Investment Arbitration
- from Part I - Process Legitimacy
- Edited by Daniel Behn, Universitetet i Oslo, Ole Kristian Fauchald, Universitetet i Oslo, Malcolm Langford, Universitetet i Oslo
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- Book:
- The Legitimacy of Investment Arbitration
- Published online:
- 06 January 2022
- Print publication:
- 13 January 2022, pp 100-132
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Challenges to investment arbitrators are increasingly common. Using data from different arbitral institutions up to 2019, this chapter traces a remarkable upsurge in the number of arbitrator challenges from 2010 to the present. On the one hand, many challenges may be of a purely tactical character, designed by the parties – typically the respondent state – to delay proceedings or pressure a party to settle or withdraw a complaint. On the other hand, many arbitrators may be legitimately vulnerable to challenges; and the increase in number may suggest that the system is (or should be) taking more seriously concerns such as repeat appointments by the same party, double hatting, and issue conflicts. The author argues that arbitrator challenges may contribute to the legitimacy of the adjudicative process. They ensure that independence and impartiality is maintained in practice and signal to prospective arbitrators and their appointers the risks of non-disclosure or certain types of appointments.
Gavrilović and Gavrilović d.o.o. v. Republic of Croatia
- ICSID (Arbitration Tribunal). 26 July 2018 21 January 2015 19 March 2015 30 April 2015 4 April 2018 30 April 2018
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- Journal:
- ICSID Reports / Volume 20 / 2022
- Published online by Cambridge University Press:
- 06 July 2022, pp. 512-545
- Print publication:
- 2022
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Procedure – Bifurcation – Jurisdiction – Whether the State’s objections to jurisdiction could be assessed in an initial phase before the merits
Procedure – Provisional measures – Urgent application – ICSID Convention, Article 47 – ICSID Arbitration Rule 39 – Whether the State should be ordered to refrain from interrogating an investor pending the tribunal’s determination of an application for provisional measures
Procedure – Provisional measures – Criminal investigation – ICSID Convention, Article 47 – ICSID Arbitration Rule 39 – Evidence – Whether the tribunal had jurisdiction to grant provisional measures ordering the suspension of a criminal investigation – Whether there was evidence to support the assertion that a criminal investigation would infringe the investors’ rights
Procedure – Preliminary objections – ICSID Arbitration Rule 41(1) – Whether an additional objection to jurisdiction and admissibility was made as early as possible
Jurisdiction – Foreign investor – Investment – ICSID Convention, Article 25 – Whether the claimants were investors making an investment under the BIT and the ICSID Convention
Jurisdiction – Legality – Corruption – Burden of proof – Whether the State met its burden of proving illegality on the part of the investors
Admissibility – Contract – Umbrella clause – Whether the tribunal could hear claims related to contractual breach under the BIT’s umbrella clause
Applicable law – Property – Municipal law – Whether issues related to property rights would be decided solely under municipal law or under both municipal and international law
Jurisdiction – Investment – Property – Municipal law – Contract – Whether properties had been transferred by universal succession by contract under municipal law
State responsibility – Attribution – ILC Articles on State Responsibility – Internationally wrongful act – Whether the principles of attribution could be applied to conduct that was not an allegedly wrongful act
State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – State organ – Corruption – Whether the allegedly corrupt acts of officials transformed the attributable conduct of a State organ into purely private acts
State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Governmental authority – Whether a privatisation fund was an entity empowered by municipal law to exercise elements of governmental authority
State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Effective control – Evidence – Whether there was sufficient evidence to show that a holding company was under the effective control of the State
Contract – Privity – Whether the State was bound by a contract entered into by a State-appointed liquidator
Admissibility – Exhaustion of domestic remedies – Whether there was an obligation to exhaust domestic remedies in the absence of an alleged denial of justice
Expropriation – Direct expropriation – Whether registering State ownership of land without providing compensation constituted a direct expropriation
Expropriation – Indirect expropriation – Real estate – Whether failure to facilitate registration of land led to an indirect expropriation
Expropriation – Indirect expropriation – Contract – Whether contractual rights specific to certain properties were indirectly expropriated
Fair and equitable treatment – Legitimate expectation – Whether there could be a legitimate expectation with respect to properties in which the investors had no property or contractual right – Whether there was a legitimate expectation that the investor would be able to register certain properties – Whether the investors established that the State interfered with their attempt to register ownership contrary to a legitimate expectation
Umbrella clause – Contract – Privity – Whether an umbrella clause can be invoked in respect of contracts entered into with entities that were separate and distinct from the State
Remedies – Compensation – Quantum – Lost rental income – Indirect loss – Causation – Whether the award of compensation should include lost rental income – Whether there was a causal link between the expropriation and indirect loss suffered by the investors
Costs – Loser pays – ICSID Convention, Article 61(2) – Discretion – Whether the State’s share of costs should be reduced when the investors only recovered 2% of the compensation claimed
Bayindir Insaat Turizm Ticaret Ve Sanayi AŞ v. Islamic Republic of Pakistan
- ICSID (Arbitration Tribunal). 14 November 2005 27 August 2009
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- Journal:
- ICSID Reports / Volume 20 / 2022
- Published online by Cambridge University Press:
- 06 July 2022, pp. 99-117
- Print publication:
- 2022
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Jurisdiction – Investment – Interpretation – Whether the requirement of conformity with local laws under the BIT referred to the definition or the validity of the investment – Whether know‑how, equipment, personnel and financing constituted assets within the meaning of the BIT
Jurisdiction – Investment – ICSID Convention, Article 25 – Whether the elements of the Salini test were satisfied
Jurisdiction – Contract – Relationship between treaty claims and contract claims – Whether the essential basis of the investor’s claims was purely contractual such that the tribunal did not have jurisdiction over such claims
Jurisdiction – Standard of review – Sufficiently substantiated claims – Whether the facts alleged by the investor, if proven true, would be capable of constituting a violation of the BIT such that the tribunal had jurisdiction over the claims
Procedure – Admissibility – Parallel arbitration proceedings – Whether exercising jurisdiction would raise a conflict between the New York Convention and the ICSID Convention
Procedure – Admissibility – Abuse of process – Whether the investor’s conduct in commencing ICSID proceedings when it had previously treated its claims as purely contractual constituted an abuse of process
Procedure – Admissibility – Prerequisites to arbitration – Notice requirements – Waiting period – Whether the investor was permitted to submit the dispute to arbitration in light of the prerequisites in the BIT
Procedure – Stay of proceedings – Whether the tribunal should stay the ICSID proceedings until resolution of the contractual dispute in separate arbitration proceedings
State responsibility – Attribution – State-owned entity – ILC Articles on State Responsibility, Article 4 – Whether a body corporate with separate legal status was an organ of the State
State responsibility – Attribution – State-owned entity – Contract – ILC Articles on State Responsibility, Article 5 – Whether a body corporate was exercising governmental authority in its contractual conduct
State responsibility – Attribution – State-owned entity – Contract – ILC Articles on State Responsibility, Article 8 – Whether actions exercised under a contract by a body corporate were on the instructions of or under the direction or control of the State
Evidence – Contract – Standard of review – Whether the tribunal needed to determine that there was a breach of the contract to decide claims under the BIT
Most-favoured-nation treatment – Interpretation – Fair and equitable treatment – Whether a standard of fair and equitable treatment could be imported through the BIT’s provision for most-favoured-nation treatment – Whether the preamble of the BIT supported that interpretation
Fair and equitable treatment – Legitimate expectation – Legal stability – Whether the investor’s legitimate expectations were frustrated as a result of political volatility
Fair and equitable treatment – Conspiracy – Evidence – Standard of proof – Whether a conspiracy would breach the standard of fair and equitable treatment – Whether the investor had adduced sufficient evidence to meet the high standard for establishing a conspiracy
Fair and equitable treatment – Coercion – Evidence – Whether the investor had adduced sufficient evidence that it had been subjected to coercion or threats by military personnel
Fair and equitable treatment – Due process – Procedural fairness – Transparency – Whether relevant procedural requirements applied to internal decision-making processes of a party to a contract
Fair and equitable treatment – Contract – Sovereign powers – Whether actions carried out by a contractual party were an exercise of sovereign powers in breach of fair and equitable treatment
National treatment – Discrimination – Intention – Whether intent to discriminate was required to find a breach of national treatment
National treatment – Contract – Comparators – Evidence – Whether the investments were in “similar situations” to other contractual arrangements
Most-favoured-nation treatment – Discrimination – Intention – Whether intent to discriminate was required to find a breach of most-favoured-nation treatment
Most-favoured-nation treatment – Contract – Comparators – Evidence – Whether the investments were in “similar situations” to other contractual arrangements
Most-favoured-nation treatment – Evidence – Burden of proof – Whether the investor’s burden could be shifted when its access to information and evidence was limited
Expropriation – Indirect expropriation – Assets capable of being expropriated – Whether interference with contractual rights could lead to expropriation under the BIT
Expropriation – Indirect expropriation – Substantial deprivation – Whether there could be substantial deprivation when the scope of the rights alleged to be expropriated was limited by the counterparty’s rights under the contract
Ampal-American Israel Corp., EGI-Fund (08-10) Investors LLC, EGI-Series Investments LLC, BSS-EMG Investors LLC and Fischer v. Arab Republic of Egypt
- ICSID (Arbitration Tribunal). 1 February 2016 21 February 2017
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- Journal:
- ICSID Reports / Volume 20 / 2022
- Published online by Cambridge University Press:
- 06 July 2022, pp. 406-438
- Print publication:
- 2022
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Jurisdiction – Foreign investor – Foreign control – Substantial interest – Whether the investors satisfied the conditions of nationality under the BIT – Whether nationals of the home State had a substantial interest in the investors – Whether a substantial interest needed to be a controlling or a majority interest
Jurisdiction – Foreign investor – Denial of benefits – Requirement to consult – Whether the host State promptly consulted the home State to seek a mutually satisfactory resolution of the matter – Whether exercising a denial-of-benefits clause amounted to withdrawing unilaterally a previously given consent – Whether the denial-of-benefits clause could be exercised after the investment claim had been filed
Jurisdiction – Investment – Indirect investment – Burden of proof – Whether an investor proved its alleged beneficial interest in an investment through a corporate vehicle
Jurisdiction – Consent – Contract claims – Whether the claim was purely contractual – Whether the investors submitted a treaty claim
Jurisdiction – Consent – Exclusions and reservations – Taxation measures – Whether a carve-out clause for taxation barred the investors’ claims of expropriation
Jurisdiction – Investment – Legality – Corruption – Public policy – Burden of proof – Whether the State discharged its burden of proof in establishing that the investment was illegal and made in corrupt circumstances
Admissibility – Abuse of process – Whether resorting to four parallel arbitrations with the same factual matrix, same witnesses and many identical claims was abusive – Whether the nature of those parallel claims was identical – Whether pursuit of the same claim before different investment tribunals should be allowed – Whether an investor should make an election to resolve overlapping claims in parallel proceedings
State responsibility – Attribution – State-owned entity – Contract – ILC Articles on State Responsibility, Article 4 – ILC Articles on State Responsibility, Article 5 – ILC Articles on State Responsibility, Article 8 – ILC Articles on State Responsibility, Article 11 – Whether the State was liable for contractual obligations undertaken by two State entities
Expropriation – Compensation – Legal stability – Tax exemption – Whether a licence granting taxation privileges constituted a protected investment – Whether the revocation of a licence constituted an expropriation – Whether the investors had the right to retain the taxation privileges beyond the initial period of the licence
Full protection and security – Due diligence – Civil unrest – Whether the State took reasonable precautionary, preventive and remedial measures to protect the physical security of a pipeline network from sabotage
Procedure – Res judicata – Contract – Privity of interest – Force majeure – Whether the factual findings on the sabotage of a pipeline network in a parallel commercial arbitration were binding on the tribunal – Whether the legal findings on contractual termination in a parallel commercial arbitration were binding on the tribunal
Expropriation – Unlawful expropriation – Contract – Whether State entities wrongfully terminated a contract under the proper law – Whether unlawful termination of a contract was tantamount to an unlawful expropriation
Unión Fenosa Gas, S.A. v. Arab Republic of Egypt
- ICSID (Arbitration Tribunal). 31 August 2018
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- Journal:
- ICSID Reports / Volume 20 / 2022
- Published online by Cambridge University Press:
- 06 July 2022, pp. 546-570
- Print publication:
- 2022
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Jurisdiction – Investment – Contract – Shares – ICSID Convention, Article 25(1) – Salini test – Whether contract, execution, amendment and performance were an investment under a BIT – Whether shares in a local company were an investment under a BIT – Whether the investments met the guidance provided by the Salini test
Admissibility – Parallel proceedings – Res judicata – Bad faith – Claim-splitting – Whether the claims were inadmissible because the investor’s subsidiary had pursued contractual claims in parallel arbitration proceedings
Procedure – Stay of proceedings – Parallel proceedings – Res judicata – Claim-splitting – Whether the tribunal had to stay the arbitration to await the result of parallel proceedings
Jurisdiction – Investment – Legality – Corruption – Lobbying – Evidence – Whether bribe by a subcontractor to officials affected the legality of the investment – Whether using personal connections for the benefit of the investor was corrupt – Whether paying generous fees to a local representative was evidence of corruption or legitimate lobbying
State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – State organ – State-owned entity – Whether a national oil company or its subsidiary were organs of the State
State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Governmental authority – State-owned entity – Whether a national oil company or its subsidiary were empowered to exercise governmental authority
State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Direction or control – State-owned entity – Contract – Whether a national oil company or its subsidiary were directed or controlled by the State – Whether the decision to reduce the supply of natural gas contrary to contractual agreement was made under the direction or control of the State
State responsibility – Attribution – ILC Articles on State Responsibility, Article 11 – Conduct adopted by the State – State-owned entity – Contract – Whether the breach of contract by a national oil company or its subsidiary had been adopted by the State as its own conduct
Fair and equitable treatment – Customary international law – Legitimate expectation – Contract – Taxation – Specific assurance – Whether the standard of fair and equitable treatment was equivalent to the customary minimum standard – Whether legitimate expectations were protected by the customary minimum standard – Whether a contract between the investor and the subsidiary of a national oil company created a legitimate expectation – Whether a letter from a State official created a legitimate expectation – Whether the expectation was relied upon – Whether the expectation was defeated – Whether non-payment under a contract defeated a legitimate expectation – Whether revocation of tax-free status defeated a legitimate expectation
State responsibility – State of necessity – ILC Articles on State Responsibility, Article 25 – Only way – Essential interest – Contribution – Civil unrest – Economic crisis – Contract – Whether non-supply of natural gas was the only way to safeguard an essential interest – Whether maintenance of public safety was the basis for non-supply of natural gas – Whether natural gas shortage was an essential interest – Whether the State contributed to the situation of necessity
Remedies – Compensation – Quantum – Contract – Reduction – Mitigation – Interest – Whether the investor could claim more compensation than available under a contract – Whether the investor suffered loss – Whether the claim for compensation was excessively speculative – Whether lost cash flows were recoverable – Whether the investor suffered lost dividends – Whether compensation should be reduced to reflect lesser need for working capital and taxes – Whether the investor could have mitigated losses – Whether pre-award interest should be awarded – Whether post-award interest should be awarded
Costs – Costs follow the event – Legal fees – Arbitration costs – Whether the unsuccessful party was to pay the legal fees of the successful party – Whether the unsuccessful party was to pay the arbitration costs of the successful party
EDF (Services) Limited v. Romania
- ICSID (Arbitration Tribunal). 8 October 2009 30 May 2008 29 August 2008 23 July 2009 2 October 2009
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- Journal:
- ICSID Reports / Volume 20 / 2022
- Published online by Cambridge University Press:
- 06 July 2022, pp. 118-140
- Print publication:
- 2022
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Procedure – Provisional measures – Confidentiality – ICSID Convention, Article 47 – ICSID Arbitration Rule 39 – Whether the investor’s actions undermined the integrity of the arbitral process or aggravated the dispute between the parties – Whether the disclosure of witness statements by the State to its anti-corruption authorities violated a previous order on confidentiality of the proceedings – Whether disclosure of information regarding the case to the public aggravated the dispute between the parties
Procedure – Admissibility – Evidence – ICSID Arbitration Rule 34(7) – Authenticity – Delay – Whether the new evidence presented by the investor was admissible – Whether the new evidence was authentic – Whether admission of the new evidence violated the principles of good faith and fair dealing – Whether the request for the admission of new evidence was made without delay
State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – Whether a financial regulator was a State organ – Whether commercial entities were State organs
State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – State-owned entity – Governmental authority – Control – Whether the State-owned commercial entities were acting as agents of the State and exercising governmental authority
State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Whether the State-owned commercial entities were acting under the instruction, direction or control of the State
Fair and equitable treatment – Legitimate expectation – Corruption – Evidence – Contract – Investigation – Whether there was sufficient proof of the solicitation of a bribe by the State’s officials – Whether the investor had a right to legitimately expect that the duration of the investments would be extended – Whether the State’s challenge of the registration of the share transfer in the joint venture to the investor was in bad faith – Whether the State’s refusal to conclude further lease agreements with the joint venture was justified – Whether the organisation and conduct of auctions for leasing commercial spaces at the airport was justified – Whether the investigation by the State’s financial regulator and confiscation of revenues was proportionate, transparent and in good faith – Whether the enactment of an ordinance reorganising the duty-free regime violated the State’s obligation to accord fair and equitable treatment
Arbitrary or discriminatory measures – Whether the State applied the measures without a legitimate purpose
Expropriation – Creeping expropriation – Whether the State’s measures, either individually or in aggregate, constituted creeping expropriation
Umbrella clause – Contract – State-owned entity – Whether the State had assumed the obligations of the State-owned commercial entities under their respective contracts with the investors – Whether there was a breach of the contracts under their governing law and international law
Costs – Loser pays – Good faith – Whether the loser-pays principle is accepted in investment arbitration – Whether the dispute had been brought by the investor in good faith
Kardassopoulos and Fuchs v. Republic of Georgia
- ICSID (Arbitration Tribunal). 6 July 2007 3 March 2010 21 March 2011
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- Journal:
- ICSID Reports / Volume 20 / 2022
- Published online by Cambridge University Press:
- 06 July 2022, pp. 141-163
- Print publication:
- 2022
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Jurisdiction – Investment – ICSID Convention, Article 25(1) – Salini test – Whether economic activities in connection with a joint venture constituted an investment
Jurisdiction – Investment – Evidence – Whether there was sufficient documentary evidence that an investor had an interest in a protected investment
Jurisdiction – Investment – Legality – Contract – Municipal law – Whether the concession and agreement through which the investment was made were void ab initio under municipal law – Whether the investment was entitled to protection under the BIT and the ECT even if the concession and agreement were void ab initio under municipal law
Admissibility – Estoppel – Legality – Contract – Municipal law – Whether the State was estopped from objecting to the tribunal’s jurisdiction ratione materiae under the BIT and the ECT on the basis that the concession and agreement could be void ab initio under municipal law
Jurisdiction – Investment – Legality – Legitimate expectation – Governmental authority – Whether the State created a legitimate expectation that the investment was made in accordance with municipal law and would be entitled to treaty protection – Whether agreements were cloaked with the mantle of governmental authority
Jurisdiction – Investment – Legality – Legitimate expectation – Attribution – State-owned entity – Whether representations by State-owned enterprises could be attributed to the State – Whether ultra vires conduct by State-owned enterprises could be attributed to the State – Whether attribution was contingent on the timing of the State’s adherence to the BIT or the ECT
Jurisdiction – Investment – Provisional application – Interpretation – ECT, Article 1(6) – Meaning of “Effective Date” – Whether provisional application of the ECT was equivalent to its entry into force – Whether the ECT was provisionally applicable on the date of the Contracting Parties’ signature of the ECT
Procedure – Burden of proof – Whether the investors were subject to a special or heavy burden of proof in establishing their claims
Admissibility – Equitable prescription – Whether the claims should be time-barred due to the 10-year delay in filing the claims
State responsibility – Attribution – State-owned entity – ILC Articles on State Responsibility, Article 4 – ILC Articles on State Responsibility, Article 5 – ILC Articles on State Responsibility, Article 11 – Structural test – Functional test – Contract – Governmental authority – Whether the contractual commitments, acts and omissions of State-owned entities could be attributed to the State – Whether State-owned entities exercised or purported to exercise governmental authority
Contract – Defence – Municipal law – Scope of rights – Unconscionability – Misrepresentation – Whether the concession and agreement through which the investment was made conferred rights to future pipelines – Whether the investors’ rights were vitiated by virtue of contractual defences raised by the State – Whether the contractual defences of unconscionability, misrepresentation and lack of performance were supported by the evidence
Expropriation – Direct expropriation – Whether the State expropriated the investor’s investment through a governmental decree that deprived its joint venture vehicle of rights in an oil pipeline
Expropriation – Unlawful expropriation – ECT, Article 13(1) – Public interest – Discrimination – Due process – Compensation – Whether the expropriation was in the public interest – Whether the expropriation was carried out in a discriminatory manner – Whether the expropriation was carried out in accordance with due process – Whether the investor was paid prompt, adequate and effective compensation
Fair and equitable treatment – Legitimate expectation – Transparency – Discrimination – Whether the standard required the investor’s expectations to be based on conditions offered by or prevailing in the State at the time the investment was made – Whether the State’s compensation process violated basic requirements of consistency, transparency, even-handedness and non-discrimination
Remedies – Compensation – Quantum – Contract – Stabilisation clause – Whether contractual stabilisation clauses limited damages for expropriation – Whether it was appropriate to compensate for the increase in the value of expropriated rights between the date of the expropriation and the date of the award
Remedies – Compensation – Fair and equitable treatment – ILC Articles on State Responsibility, Article 36 – Valuation methodology – What was the standard of compensation applicable to a breach of the fair and equitable treatment standard
Costs – Third-party funding – Whether third-party funding should be taken into account in the award of costs
Annulment – Procedure – Whether annulment proceedings should be suspended pending resolution of the application for revision of an award
Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela
- ICSID (Arbitration Tribunal). 3 November 2017 27 February 2013 30 December 2016 21 December 2016 24 October 2018
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- Journal:
- ICSID Reports / Volume 20 / 2022
- Published online by Cambridge University Press:
- 06 July 2022, pp. 360-405
- Print publication:
- 2022
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Procedure – Challenge to arbitrator – ICSID Convention, Article 57 – ICSID Convention, Article 14 – Independence – Impartiality – Issue conflict – Whether previous administrative or political appointments in government led to manifest lack of qualifications to exercise independent judgment – Whether an arbitrator’s previous advocacy on behalf of a State created the risk of an issue conflict
Admissibility – Attribution – Contract – Whether alleged breaches of a contract entered into by an investor’s subsidiary and a State-owned entity were attributable to the State – Whether the alleged breaches of contract should be determined on the merits of the alleged breach of the standard of fair and equitable treatment
Admissibility – Procedure – Incidental or additional claim – Whether a claim was untimely if raised for the first time in the hearing on jurisdiction and merits – Whether there was sufficient opportunity for both parties to respond to the claim
Expropriation – Interpretation – Measures – Particular undertaking – Whether the term “measures” required an expropriation to consist of a formal exercise of government powers – Whether notion of a particular undertaking included other provisions of a BIT or was limited to external agreements entered into by the State
Expropriation – Prompt compensation – Interpretation – Good faith – VCLT, Article 31(1) – Manifestly absurd or unreasonable – VCLT, Article 32(b) – Municipal law – Whether the payment of prompt compensation required the State to specify a certain figure constituting the amount of compensation on the date of expropriation – Whether that interpretation contravened the principle of good faith interpretation – Whether that interpretation led to a manifestly absurd or unreasonable result – Whether a tribunal had to examine whether municipal law implemented an expropriation procedure in accordance with the BIT
Expropriation – De facto expropriation – Whether acquiring de facto control of an investment with the aim of ultimately carrying out an expropriation could amount to an expropriation
Expropriation – Attribution – Non-State actors – ILC Articles on State Responsibility, Article 8 – ILC Articles on State Responsibility, Article 11 – Whether the physical takeover of a plant by former workers, union officials and sympathetic politicians was under the instructions of, or under the direction or control of, the State – Whether causality between a presidential announcement and the physical takeover was sufficient to attribute the conduct of non-State actors – Whether the subsequent adoption of the conduct of non-State actors by a State-owned entity vested with governmental authority was attributable to the State
Expropriation – Attribution – State-owned entity – ILC Articles on State Responsibility, Article 5 – Whether the presence of a State-owned entity in the investor’s abandoned plant was merely in a caretaker capacity for reasons of public safety – Whether the State-owned entity was vested with governmental authority to nationalise the plant
Procedure – Judicial economy – Remedies – Whether a tribunal had to make a finding on an alleged breach of the standard of fair and equitable treatment when it would not have altered the amount of compensation to which the investor was entitled
Fair and equitable treatment – Legitimate expectation – Legal stability – Contract – Attribution – State-owned entity – Whether a legitimate expectation of the contractual performance of a State-owned entity at a certain price can be formed in the absence of a specific commitment from the State guaranteeing such performance or price – Whether any breach of contract had been established – Whether it was necessary to address the issue of attribution in the absence of contractual breach
Full protection and security – Legal stability – Contract – State-owned entity – Whether the State had an obligation to protect an investor from alleged contractual breaches by a State-owned entity
Remedies – Compensation – Expropriation – Quantum – Fair market value – Discounted cash flow – Country risk premium – Evidence – Whether a finding of unlawfulness was relevant to the standard of compensation for expropriation – Whether the value of the investment was higher on the date of expropriation or the date of award – Whether fair market value could be determined using the method of discounted cash flow – Whether the discount rate applied to future cash flows should include the risk of expropriation as part of the country risk premium – Whether the evidence presented by the parties’ experts determined the correct variables of future cash flows – Whether a reduction in future profits should be made to account for the investment’s dependence on the investor’s marketing and distribution networks – Whether the investor was entitled to compensation for historical losses arising from increases in the price of inputs
Remedies – Compensation – Interest – Compound interest – Whether interest should be calculated on a simple basis because compound interest was prohibited under municipal law – Whether compound interest would ensure full reparation under international law for the time value of the investor’s losses
Annulment – Procedure – Seat – ICSID Convention, Article 62 – Whether annulment proceedings may be conducted in a place different from the seat of ICSID absent agreement of parties
Annulment – Procedure – Stay of enforcement – Whether a stay of enforcement of the award should be lifted because the applicant for annulment failed to pay an advance on costs
Annulment – Procedure – Suspension of proceedings – Whether annulment proceedings should be suspended because the applicant for annulment failed to pay an advance on costs