By Taida Begic
This booklet supplies a accomplished evaluation of all proper facets of the problem of acceptable noticeable legislations within the context of investor/State arbitration. it's a comparative survey of either the foreign middle for cost of funding Disputes (ICSID) and non-ICSID arbitral perform. The appropriate great legislation represents a massive factor in funding disputes because it determines the foundations of legislation that are meant to be utilized to the benefits of the dispute. This research demonstrates the necessity for a dialogue at the appropriate legislations prior to interpreting the advantages of the case, because it seems to be non-existent in such a lot arbitral awards. the writer offers an in depth survey of selection of legislation clauses as present in direct agreements among events and in multilateral or bilateral funding treaties. in addition, the writer analyzes the subsequent concerns: stabilization clauses in funding agreements, the appliance of the residual rule (if events didn't agree at the appropriate law), the certain place of the Iran-US Claims Tribunal and numerous annulment judgements.
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Extra resources for Applicable Law in International Investment Disputes
Islamic Republic of Iran, Partial Award, 14 July 1987, 27 ILM 1314 (1988). 25 At p. 1353. 20 CHAPTER II to its rules. At the same time, the applicability of international law secures the foreign investor if the host State’s law violates the international minimum standards. Therefore, such a clause on applicable law agreed by parties would be the most acceptable solution and in the interest of both parties. These combined clauses on applicable law can be found not only in recent investor/State agreements but also in some older agreements.
Asp. 56 This is a typical example for a combined clause on applicable law that refers to the provisions of the Protocol itself, to the host State’s law, to the special investment agreement (if any) concluded between the parties and to the principles of international law. The ICSID Convention also contains a combined choice of law clause in its second sentence of Art. 42(1) but will be discussed in the chapter dealing with the absence of the parties’ agreement on choice of law. 59 Some of the cases in investor/State arbitration have involved BITs that included clauses on applicable law.
42(1) of the ICSID Convention and therefore constituted an essential element of the Tribunal’s “terms of reference”. The Tribunal proceeded to examine the merits in accordance with the choice of law clause under which it operated. Such an explicit choice of law obliged the Tribunal to examine the relevant questions first of all from the perspective of Congolese law and, afterwards, if need be, in relation to international law. The Tribunal proceeded to act in this manner. Since both the Ordinance and the stabilization clauses were valid under Congolese law, it was indeed necessary to make reference to international law and demonstrate the irregular nature of the nationalization measures.
Applicable Law in International Investment Disputes by Taida Begic