Bona fide problem in the activity of international judges

2021 ◽  
Vol 11 (1) ◽  
pp. 57-80
Author(s):  
Vladislav Tolstykh
Keyword(s):  
International Law ◽  
International Investment ◽  
International Justice ◽  
Revolving Door ◽  
The Political ◽  
Political Environment ◽  
Bad Faith ◽  
Judicial Decision ◽  
Investment Arbitration ◽  
Bona Fide

The article examines the forms of bad faith of international judges, the possibilities of counteracting manifestations of bad faith and the factors that stimulate bad faith. Among the first, there are forms related to the appointment of arbitrators (moonlighting, revolving door, issue conflict, etc.), and forms related to the process itself (ex parte communication, pressure on other judges, involving an assistant to perform the work of a judge, etc.). The article provides specific examples of bad faith and analyzes the positions of the courts and doctrine. The focus is on manifestations of bad faith in international investment arbitration, the reform of which is now on the UNCITRAL agenda. The author describes institutional, organizational, procedural and conceptual measures to counteract bad faith of international judges; special attention is paid to the latter, which imply the consolidation of new procedural and substantive concepts, for example, the concept of the presumption of guilt of judges, the concept of the international judicial decision as a sui generis agreement, etc. The author also calls for debates about philosophical, sociological, political, historical and economic aspects of international justice based on the recognition of the fact that it is not a static institution, but, on the contrary, is undergoing profound transformations (like the world as a whole). In conclusion, the author fixes the factors that stimulate bad faith: related to the general shortcomings of international law; associated with its dependence on the political environment; concerning the processes taking place within the judicial corporation; and, finally, concerning the transition of our civilization to the stage of postmodernity, which presupposes distrust in relation to metanarratives. The latter tendency is defined as general, objective and natural; the crisis of international justice in this regard is only one aspect of the general crisis of law and, at the same time, one of its evidence.

Requirements for Amicus Curiae Participation in International Investment ArbitrationA Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15

2013 ◽  
Vol 12 (3) ◽  
pp. 365-390 ◽  
Author(s):  
Christian Schliemann
Keyword(s):  
International Law ◽  
International Investment ◽  
Recent Attempt ◽  
Arbitral Tribunal ◽  
Amicus Curiae ◽  
Legal Rules ◽  
Investment Arbitration ◽  
Legal Standard ◽  
Investment Law

Abstract The legal standard on amicus curiae participation in international investment arbitration has been forged by the judicial development of legal rules and, in parallel, the modification of normative sources, such as the ICSID Arbitration Rules. Current and future decisions by arbitral tribunals on the participation of amicus curiae in a given dispute must abide by this consolidated standard. In June 2012, the arbitral tribunal in Joint ICSID Cases No. ARB/10/15 and No. ARB/10/25 released a procedural order, rejecting an amicus petition. This Order contains various deviations from the applicable legal standard and severely restricts the options for amicus participation. The recent attempt to strengthen the legitimacy of international investment arbitration by allowing for greater amicus participation and the acknowledgement of the interdependence of investment law and other areas of international law is thereby put in peril.

Taxation Measures under the Energy Charter Treaty after the Yukos Awards Articles 21(1) and 21(5) Revisited

2019 ◽  
Vol 34 (1) ◽  
pp. 85-106
Author(s):  
Sebastián Green Martínez
Keyword(s):  
International Law ◽  
The State ◽  
Foreign Investor ◽  
Sovereign Power ◽  
Bad Faith ◽  
Public International Law ◽  
Host State ◽  
General Revenue ◽  
Energy Charter Treaty ◽  
Bona Fide

Abstract As the number of investment arbitrations under the Energy Charter Treaty has soared in recent years, parties and arbitrators have faced arguments concerning its Article 21 on taxation measures, which had seldom been applied before. In 2014, the tribunal ruling on the Yukos trilogy held that even though Article 21 excludes taxation from the scope of the treaty, the carve-out could apply “only to bona fide taxation actions, i.e., actions that are motivated by the purpose of raising general revenue for the State”. Article 21 also provides that in cases regarding expropriation “[t]he Investor or the Contracting Party alleging expropriation shall refer the issue of whether the tax is an expropriation or whether the tax is discriminatory to the relevant Competent Tax Authority. Failing such referral by the Investor” in cases of investor-state arbitration, the tribunal “shall make a referral to the relevant Competent Tax Authorities”. The Yukos tribunal considered said referral to be a futile exercise when it is unequivocal that the host State acted in bad faith towards the foreign investor. As a consequence of the Yukos trilogy, the Energy Charter Secretariat has published a report on the issue that recommends potential amendments to clarify Article 21. A number of investor-state arbitral tribunals have also addressed these issues since the Yukos trilogy. Taking a public international law approach, this article critically explores awards and decisions rendered by those tribunals, paying particular attention to their findings on Article 21 vis-à-vis the sovereign power to tax. This article concludes that recent awards dealing with Article 21 arguments have struck an appropriate balance between the prerogatives of States and their obligations under the Energy Charter Treaty. Thus, the article affirms that no amendment seems necessary.

International Investment Arbitration

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
International Law ◽  
Present State ◽  
Critical Review ◽  
International Investment ◽  
Comprehensive Description ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Author Team ◽  
Substantive Law ◽  
Investment Treaty Arbitration

This is the long-awaited second edition of this widely-referenced work on the substantive law principles of investment treaty arbitration. It forms a detailed critical review of the substantive principles of international law applied by investment arbitration tribunals, and a clear and comprehensive description of the present state of the law. The first edition met with immediate success as a result of the authors’ achievement in describing and analysing the volume of law created, applied and analysed by tribunals. The second edition is fully updated to take account of the arbitration awards rendered in the period since 2007. Written by an internationally recognised author team, it is now the most comprehensive and up to date work in its field and no practitioner or academic can afford to be without it.

ICSID Arbitration and the Importance of Public Accountability of a Private Judicature – A Roman Law Perspective

2007 ◽  
Vol 9 (1) ◽  
pp. 59-102 ◽  
Author(s):  
Frederic Gilles Sourgens
Keyword(s):  
International Law ◽  
International Investment ◽  
Civil Procedure ◽  
Customary Law ◽  
Roman Law ◽  
Public Accountability ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law

AbstractThis article explores the problems of public accountability in current investment law practice. These problems arise from the private interpretation of international investment treaty and customary law in arbitration. It analyses these problems through the historical lens of Roman law and the Roman law tradition in international law. It suggests a Praetorian system of international accountability and explores the remarkable similarities between current investment arbitration and classical Roman civil procedure.

scholarly journals Chorzów Factory – intellectual property and the continuity of international law in investor-state dispute settlement

2020 ◽  
Author(s):  
P. Sean Morris
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
International Law ◽  
Intellectual Property Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
Investment Arbitration ◽  
Fair Compensation ◽  
Investment Law

One of the most important cases in the jurisprudence of international law – Chorzów Factory – has a hidden secret, so much so that, even when in plain sight, legal post-mortems of the case fail to mention this well-kept secret. Chorzów Factory was about intellectual property rights, specifically patents and trade secrets, and this narrative has never been fully addressed. When the developments in international investment law and arbitration are fully considered it is worth looking back at Chorzów Factory to associate it with new streams of contemporary investor-state disputes that include issues such as intellectual property rights. Because Chorzów Factory has established the full reparation standard for unlawful expropriation, the standard has enabled a continuity of international law and underscores its importance for contemporary investment arbitration. However, the intellectual property narrative of Chorzów Factory has been neglected, and, in this article, I want to develop the intellectual property narrative of Chorzów Factory and to demonstrate the nexus between fair compensation, intellectual property rights and the continuity of international law.

Part VI The Post-Award Phase, 30 A Practical Guide: Research Tools in International Investment Law

2018 ◽  
Author(s):  
Fouret Julien
Keyword(s):  
International Law ◽  
International Investment ◽  
International Court Of Justice ◽  
Stare Decisis ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Arbitration ◽  
International Court ◽  
Investment Agreement ◽  
Investment Law

This chapter aims to help the new investment arbitration practitioner identify and find the main legal sources for dealing with international investment law issues. Three different topics need to be addressed in order to cover, as extensively as possible, the legal issues generally raised during an arbitration based on an international investment agreement. First, even though the stare decisis rule does not exist in international arbitration, including investment arbitration, previous rulings are often used and analyzed by arbitrators. Second, when dealing with investment arbitration, it is likely that the claim will be treaty based. Finally, and most importantly, in international investment disputes, arbitral tribunals rely on all the sources of public international law identified in Article 38(1) of the Statute of the International Court of Justice, which provides for the Court to apply.

The Vienna Convention as Authority for the Use of Precedent as Customary Practice in International Arbitrations of Oil Concessions and Investment Disputes in North Africa and the Gulf Arab States; or a Lex Mercatoria for a Lex Petrolea

2013 ◽  
pp. 918-940
Author(s):  
Mary B. Ayad
Keyword(s):  
International Law ◽  
International Investment ◽  
Customary Law ◽  
Vienna Convention ◽  
Commercial Arbitration ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Western Law ◽  
Lex Mercatoria

General principles of law are a valid source of law for arbitral tribunals. The Vienna Convention1 allows recourse to general principles of law. In Bilateral Investment Treaty (hereinafter “BIT”) interpretation but also in International Commercial Arbitration (hereinafter “ICA”)/International Investment Arbitration (“hereinafter “IIA”), arbitrators can be guided by the Vienna Convention2 and in so doing may refer to a number of ‘rules’ and norms of ‘international law’ applicable to the relations between states, such as those mentioned herein including principles drawn from the lex mercatoria or other types of international customary law, e.g. the principle of pacta sunt servanda, which honours contracts between states and investors, as well as the principle of precedent. Additionally, they may refer to customary norms from other jurisdictions that can harmonise with Western law.

Smart Flexibility Clauses in International Investment Treaties and Sustainable Development

2014 ◽  
Vol 15 (5-6) ◽  
pp. 827-861 ◽  
Author(s):  
Anne van Aaken
Keyword(s):  
Public Policy ◽  
International Law ◽  
International Investment ◽  
Fine Tuning ◽  
Opportunistic Behavior ◽  
Investment Treaty ◽  
International Investment Agreements ◽  
Bona Fide ◽  
Policy Measures ◽  
Investment Agreements

A major challenge for investment treaty designers and adjudicators is to separate opportunistic behavior by host states that should be sanctioned under international law from bona fide public policy measures that should not. This article suggests that international investment agreements (iias) need to be both ‘smarter’ and more ‘flexible’ to better make that distinction. It draws on economic contract theory as a basic framework, and political economy theory for fine-tuning.

Arbitrariness, the Fair and Equitable Treatment Standard, and the International Law of Investment

2012 ◽  
Vol 25 (1) ◽  
pp. 77-107 ◽  
Author(s):  
JACOB STONE
Keyword(s):  
International Law ◽  
International Investment ◽  
Bad Faith ◽  
Common Features ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Legitimate Expectations ◽  
Investment Treaties ◽  
Equitable Treatment

AbstractOne of the most common features of international investment treaties is the obligation of a state to grant ‘fair and equitable treatment’ to investors and investments. Treatment giving rise to allegations of breaches of this obligation has taken many forms, namely bad faith, discrimination, denial of justice, frustration of legitimate expectations, lack of transparency, coercion and harassment, and arbitrariness or arbitrary conduct. This latter form of treatment – arbitrariness – has rarely been the focus of scholarly works and, thus, its scope and meaning are difficult to ascertain. When examined in the context of international investment disputes, however, one may conclude that, while its scope and meaning may vary, arbitrariness is indeed a legitimate basis for claim under the fair and equitable treatment standard. The thresholds for demonstrating arbitrariness, however, are decidedly and consistently high.

Challenges to the Assessment of Damages Claims Involving Crypto-Assets in Investment Arbitration

Global Jurist ◽  
2020 ◽  
Vol 20 (2) ◽  
Author(s):  
Aveek Chakravarty
Keyword(s):  
International Law ◽  
International Investment ◽  
Foreign Investments ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Asset Classes ◽  
Distinct Features

AbstractThis article addresses the particular challenges involved in valuing various types of crypto-assets as investments under treaty-based investment arbitration. The interaction of the international investment protection regime with crypto-investments has largely remained un-examined, even though increasing amounts of foreign investments have flown into the development of crypto-assets its related markets. The existing investment treaty regime is set to face significant challenges in grappling with crypto-assets as investments due to several distinct features that differentiate them from traditional asset classes. This issue is explored further in the article from the perspective of the principles governing damages under international law.

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