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This page lists the top ten most read articles for this journal based on the number of full text views and downloads recorded on Cambridge Core over the last 90 days. This list is updated on a daily basis.
Defence Arguments in Investment Arbitration
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- 01 January 2021, pp. 9-108
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Attribution of conduct to States in investment arbitration
- Jorge E. Viñuales
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- 06 July 2022, pp. 13-95
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Subject matter jurisdiction: the notion of investment
- Michael Waibel
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- 22 November 2021, pp. 25-82
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ARSIWA, ISDS, and the process of developing an investor–State jurisprudence
- Meg Kinnear
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- 06 July 2022, pp. 3-12
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The Unity of an Investment
- Christoph Schreuer
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- 22 November 2021, pp. 3-24
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Von Pezold, Von Pezold, Webber, Von Pezold, Batthyàny, Von Pezold, Von Pezold, Von Pezold and Von Pezold v. Republic of Zimbabwe
- ICSID (Arbitration Tribunal). 28 July 2015 21 November 2018
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- 01 January 2021, pp. 360-392
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Jurisdiction — Foreign investor — ICSID Convention, Article 25(2) — Whether the requirements of foreign nationality or control were satisfied
Jurisdiction — Investment — ICSID Convention, Article 25 — Salini test — Origin of capital — Whether the claims related to foreign investments fulfilling the applicable test
Jurisdiction — Standing — Whether the claimants had standing to bring a claim for loss in respect of assets held by local companies
Jurisdiction — Provisional application — VCLT, Article 25 — Whether the parties to the BIT agreed to provisional application prior to the date of its ratification
State responsibility — Attribution — ILC Articles on State Responsibility, Article 4 — ILC Articles on State Responsibility, Article 8 — ILC Articles on State Responsibility, Article 11 — Customary international law — Whether the State could be held responsible for police inaction in the face of the unlawful occupation movement — Whether the occupation movement was under the direct order or control of the State
Defence — Proportionality — Margin of appreciation — Whether land expropriations could be justified as a proportionate exercise of State regulatory powers — Whether a margin of appreciation may be applied in the context of investment treaty disputes
Expropriation — Direct expropriation — Compensation — Non-discrimination — Due process — Public purpose — Whether the taking of land complied with the conditions of a lawful expropriation — Whether direct debit from bank accounts and seizure of grain at less than market price constituted unlawful expropriations
Expropriation — Indirect expropriation — Whether assets that were not directly expropriated but were no longer commercially viable were unlawfully expropriated — Whether changes to water permits were so significant as to constitute expropriation — Whether refusal to release foreign currency led to expropriation of an unpaid loan
Fair and equitable treatment — Legitimate expectation — Whether the State provided specific assurances that the investors would not be expropriated — Whether changes to water permitting without compensation violated legitimate expectations — Whether restrictions on foreign currency and exchange were in breach of fair and equitable treatment
Full protection and security — Law enforcement — Whether the State took all reasonable measures to remove occupiers from the investors’ land — Whether the police were overwhelmed or would have needed to use disproportionate force — Whether responsibility was excepted by a situation of war or revolution
Free transfer — Whether refusal to release foreign currency and imposition of local currency constituted an investment treaty breach
Defence — Necessity — ILC Articles on State Responsibility, Article 25 — Customary international law — Whether property invasions should be considered a threat to an essential interest of the State — Whether there was an essential interest of the State at stake — Whether there was a grave and imminent peril to the existence of the State or merely the incumbent political party — Whether the acts of State were the only way to stop the occupations — Whether the measures were in violation of obligations erga omnes not to discriminate based on race — Whether the State contributed to the situation
Remedies — Restitution — Whether it was possible to reinstate title to expropriated land
Remedies — Damages — Whether there was a compensable difference between the value of land as is and but for the unlawful measures due to damage and loss of productivity
Remedies — Moral damages — Whether exceptional circumstances existed to award moral damages — Whether corporate claimants may be awarded moral damages
Annulment — Serious departure from a fundamental rule of procedure — ICSID Convention, Article 52(1) — Whether the State had been denied an opportunity to present a case on illegality due to procedural orders on admissibility
Annulment — Serious departure from a fundamental rule of procedure — Composition of tribunal — Corruption of tribunal member — ICSID Convention, Article 52(1) — Waiver — Whether the late disclosure of the tribunal president’s role with another World Bank body formed a basis for annulment — Whether the State waived its right to challenge the arbitrator
Annulment — Manifest excess of powers — ICSID Convention, Article 52(1) — Whether the tribunal failed to apply the proper law for the defence of necessity and legality of investments
Ortiz Construcciones y Proyectos SA v. People’s Democratic Republic of Algeria
- ICSID (Arbitration Tribunal). 29 April 2020
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- 06 July 2022, pp. 571-610
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State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – State organ – De jure State organ – De facto State organ – Whether complete dependence on the State could be established by the performance of core State functions, daily subordination to central government, or the absence of any operational autonomy – Whether the execution of a mission of public interest sufficed to qualify an entity as a State organ – Whether State supervision amounted to daily subordination or lack of operational autonomy
State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Governmental authority – Whether an entity was authorised by law to exercise elements of public authority – Whether the impugned acts were performed in the context of such governmental authority – Whether acts performed in the public interest pertained to governmental authority
State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Instructions, direction or control – Whether control referred to overall or effective control – Whether control can be evidenced by the overall context of the relationship with the State – Whether such control should extend to the act that was being challenged – Whether ultra vires acts and conduct were attributable – Whether the alignment of interests with the State was sufficient for attribution
Fair and equitable treatment – Legitimate expectation – Specific promise – Material advantage – Whether an investment should have been made on the basis of the alleged expectation – Whether an expectation can be based on vague promises to grant work
Fair and equitable treatment – Good faith – Evidence – Whether a breach of good faith required a proof of bad faith conduct – Whether an uncorroborated witness statement can evidence threats by the State
Fair and equitable treatment – Unjustified, incoherent or arbitrary conduct – Whether the terms “unjustified” and “arbitrary” were equivalent – Whether a failure to succeed in contractual negotiations can evidence an unjustified or incoherent conduct
Non-impairment – Fair and equitable treatment – Judicial economy – Whether the non-impairment standard overlapped with fair and equitable treatment
Umbrella clause – Interpretation – VCLT, Article 33 – Reconciliation of equally authentic texts – Whether the clause covered non-contractual obligations
Costs – Good faith – Whether the unsuccessful party should not be ordered to pay the successful party’s costs because the former brought the proceeding in good faith
Gustav F W Hamester GmbH & Co KG v. Republic of Ghana
- ICSID (Arbitration Tribunal). 18 June 2010
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- 06 July 2022, pp. 164-219
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Jurisdiction – Investment – Legality – Fraud – Whether the investment had been procured on the basis of the investor’s fraudulent activity
Jurisdiction – State responsibility – Attribution – Whether an objection to jurisdiction for want of attribution should be addressed on the merits
State responsibility – Internationally wrongful act – ILC Articles on State Responsibility, Article 2 – Whether the State was responsible for any act that interfered with an investor’s rights regardless of who committed the impugned act
State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – De facto organ – Whether the impugned acts were performed by an organ of the State – Whether a corporate body was a de facto organ of the State
State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Puissance publique – Joint venture – Contract – Shareholder dispute – Whether a corporate body was empowered with governmental authority – Whether impugned acts of a corporate body were performed through the exercise of governmental authority – Whether contractual negotiations evidenced the exercise of governmental authority – Whether a contractual dispute over the failure to supply goods evidenced the exercise of governmental authority – Whether a dispute between shareholders of a joint venture vehicle evidenced the exercise of governmental authority
State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Effective control – Whether the State exercised general control over a corporate body – Whether the State exercised specific control over impugned acts of a corporate body
Expropriation – Harassment – Criminal investigation – Evidence – Whether there was sufficient evidence of alleged harassment by police officers – Whether a criminal investigation into an employee of the investor contributed to an alleged expropriation
Expropriation – Management rights – Joint venture – Government interference – Evidence – Whether there was evidence of instructions from the State to the investor’s joint venture partner that resulted in the expropriation of the investor’s management rights
Expropriation – Export ban – Joint venture – Government interference – Evidence – Whether there was evidence that the imposition of an export ban was controlled by the State – Whether the imposition of an export ban was motivated by the legitimate commercial fears of a joint venture partner
Umbrella clause – Contract – Joint venture – Whether the State was responsible under international law for a corporate body’s alleged breach of contract – Whether the impugned acts were the exercise of sovereign powers or purely contractual – Whether elevating contract claims to treaty claims would undermine the purpose of the investment treaty regime
Fair and equitable treatment – Legitimate expectation – Contract – Joint venture – Whether contractual rights were sufficient to ground a legitimate expectation under international law
Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay
- ICSID (Arbitration Tribunal). 2 July 2013 17 February 2015 24 March 2015 8 July 2016 8 July 2016
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- 01 January 2021, pp. 450-486
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Jurisdiction — Exhaustion of remedies — Domestic litigation requirement — Whether one investor’s compliance with the domestic litigation requirement extended to other investors — Whether the purpose of the domestic litigation requirement was met
Jurisdiction — Exclusions and reservations — Public health — Interpretation — Whether the State’s right not to allow economic activities for reasons of public health excluded the impugned measures from the scope of the BIT — Whether the exclusion applied only to the admission of investments rather than the protection of investments already admitted
Jurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Salini test — Whether the four elements of the Salini test were mandatory legal requirements — Whether the BIT contained further limits on the scope of protected investments
Procedure — Admissibility — Incidental or additional claim — ICSID Convention, Article 46 — ICSID Arbitration Rule 40 — Whether the claim was presented not later than in the reply — Whether the claim arose directly out of the subject matter of the dispute — Whether the claim was in the scope of the consent of the parties and the tribunal’s jurisdiction — Whether the claim was subject to any further requirement of domestic litigation
Procedure — Amicus curiae — ICSID Arbitration Rule 37(2) — Public interest — Whether a non-disputing party possessed perspective, particular knowledge or insight on the issues in dispute which was different from that of the disputing parties — Whether the proposed submission was within the scope of the dispute — Whether the non-disputing parties had an interest in the proceeding — Whether granting the request would support transparency and the public interest — Whether the submission would disrupt the proceeding or unfairly burden either party — Whether the applicants had sufficient independence from the disputing parties — Whether the application was timely
Expropriation — Indirect expropriation — Intellectual property — Trademark — Right to use — Regulation — Harmful products — Whether intellectual property rights were protected against any regulation restricting the right to use — Whether the investor should have expected the regulation of harmful products
Expropriation — Indirect expropriation — Substantial deprivation — Whether the extent of deprivation should be assessed by the overall business value or the value of each business asset — Whether the business remained profitable after the deprivation of value
Defence — Police powers — Customary international law — Public welfare — Public health — Tobacco control measures — Good faith — Whether the doctrine of police powers was recognised by the BIT or customary international law — Whether the customary defence was excluded by the public purpose condition for lawful expropriation — Whether the measures were adopted in accordance with municipal and international legal obligations — Whether the measures were implemented in good faith for the protection of public welfare — Whether the measures were discriminatory or disproportionate — Whether the measures were directed to and capable of achieving the stated goal
Fair and equitable treatment — Arbitrariness — Public health — Tobacco control measures — Scientific evidence — Margin of appreciation — Proportionality — Good faith — Whether a margin of appreciation may be applied to policy decisions on public health — Whether the reasonableness of a tobacco control measure was determined by scientific evidence of actual effects or the good faith of the State in addressing public health
Fair and equitable treatment — Legitimate expectation — Legal stability — Harmful products — Public concern — International practice — Whether the State made any commitment not to modify the legal framework — Whether investors should expect harmful products to be regulated — Whether investors should expect progressively more onerous regulation of harmful products due to public concern — Whether the State was precluded from adopting novel measures in advance of international practice
Umbrella clause — Intellectual property — Trademark — Whether granting a trademark under the general law on intellectual property was a unique commitment to encourage or permit a specific investment
Fair and equitable treatment — Denial of justice — Whether contradictory decisions of different courts on the same issue led to denial of justice — Whether the rejection of an investor’s administrative challenge due to a competitor’s earlier and unsuccessful challenge on similar but not identical evidence led to denial of justice — Whether procedural irregularities were sufficiently grave to result in denial of justice — Whether the claims were decided in substance
Strabag SE v. Libya
- ICSID (Arbitration Tribunal). 29 June 2020 22 June 2020
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- Published online by Cambridge University Press:
- 06 July 2022, pp. 611-638
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Jurisdiction – Investment – Shares – Indirect ownership – Whether the indirect ownership of shares in a locally incorporated company could qualify as a protected investment
Jurisdiction – Investment – ICSID Additional Facility – Interpretation – Whether the meaning of investment under the ICSID Convention applied in ICSID Additional Facility arbitration
Jurisdiction – Investment – ICSID Additional Facility – Interpretation – Salini test – Whether indirect ownership of shares in a locally incorporated company qualified as a protected investment
Jurisdiction – Foreign investor – Contribution – Indirect ownership – Whether a foreign investor’s investment indirectly made through layers of wholly owned subsidiaries qualified as a protected investor
Jurisdiction – Foreign investor – Standing – Shareholder – Whether an indirect shareholder was entitled to claim compensation for damage to assets owned by its locally incorporated subsidiary
Umbrella clause – Interpretation – Whether a foreign investor may use an umbrella clause to elevate contractual claims to treaty claims
Umbrella clause – Interpretation – Forum selection – Whether a foreign investor may use an umbrella clause to circumvent a dispute resolution forum that was contractually agreed upon
State responsibility – Attribution – State-owned entity – Contract – ILC Articles on State Responsibility, Article 5 – Whether a State may act through its parastatal entities to enter into construction contracts
State responsibility – Attribution – State-owned entity – ILC Articles on State Responsibility, Article 8 – Direct control – Whether the conduct of State-owned entities was attributable to the State – Whether the supervision of a series of State-owned entities by various government actors rendered their conduct attributable to the State
War losses clause – Compensation for losses – Lex specialis – Interpretation – Whether a clause providing compensation for losses in times of armed conflict was lex specialis that supplanted other treaty provisions
War losses clause – Compensation for losses – Requisition – Interpretation – Whether a foreign investor can claim compensation for the requisition of assets forming part of its investment by forces loyal to the regime
War losses clause – Compensation for losses – Destruction – Interpretation – Whether a foreign investor can claim compensation for the total or partial destruction of its investment when some of the destruction was not attributable to State-affiliated actors
Full protection and security – Circumstances of the host State – Interpretation – Whether the standard of full and constant protection and security prescribes the reasonable measures of prevention that any well-administered government would exercise under similar circumstances – Whether the standard of full and constant protection and security considerations required a tribunal to take into account the conditions prevailing in the host State
Umbrella clause – Contract – Compensation – Whether a foreign investor can claim compensation for alleged breaches of contractual obligations brought under an umbrella clause
Counterclaim – Umbrella clause – Set-off – Additional claim – Incidental claim – Whether a respondent State can assert an additional or incidental contractual claim brought under the tribunal’s jurisdiction by operation of an umbrella clause – Whether the circumstances of the domestic courts were relevant to whether a tribunal should resolve the contractual counterclaim
Costs – ICSID Additional Facility – Whether the losing party should bear the winning party’s costs even where the winning party was only partly successful