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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
Almås and Almås v. Republic of Poland
- Permanent Court of Arbitration. 27 June 2016
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- 06 July 2022, pp. 294-325
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Jurisdiction – Foreign investor – Investment – Contractual rights – Whether shareholders had standing to protect the contractual rights of the corporate vehicle for their investment
State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – State organ – De facto State organ – Municipal law – Whether an agricultural property agency qualified as a de jure State organ under municipal law – Whether an agricultural property agency qualified as a de facto State organ
State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Governmental authority – Contract – Bad faith – Evidence – Whether an agricultural property agency terminating a contract constituted an exercise of governmental authority – Whether the agricultural property agency had genuine commercial concerns – Whether the contractual termination was motivated by State policy – Whether the contractual termination was motivated by a hidden political agenda – Whether there were grounds to terminate the contract – Whether the contract was terminated in bad faith
Evidence – Bad faith – Contract – Whether procedural mistakes in the termination of a contract amounted to bad faith
State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Contract – Instructions – Whether an agricultural property agency was acting on the instructions of the State in terminating a contract
Contract – Puissance publique – Fair and equitable treatment – Expropriation – Umbrella clause – Whether treaty claims arising from contractual termination required acts performed in the exercise of puissance publique to constitute breach
Costs – UNCITRAL Rules – Agreement – Costs follow the event – Reasonable conduct – Whether a tribunal should order the successful party to pay certain costs of the arbitration because of unreasonable conduct despite prior agreement that costs follow the event – Whether each party should bear its own costs – Whether the unsuccessful party should reimburse the successful party for its advance on costs
Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan
- ICSID (Arbitration Tribunal). 10 November 2017
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- 06 July 2022, pp. 453-511
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Procedure – Preliminary objections – Time limits – Special circumstances – ICSID Arbitration Rules, Rule 41 – ICSID Arbitration Rules, Rule 26(3) – Whether there were special circumstances for the State’s new evidence of alleged corruption to be considered as preliminary objections after the hearing
Procedure – Corruption – Waiver – Laches – Acquiescence – Whether the doctrine of laches barred the State’s new evidence of corruption – Whether the State had waived or acquiesced to the alleged instances of corruption
Evidence – Corruption – Standard of proof – Indirect evidence – Circumstantial evidence – Whether the standard of proof for alleged corruption allowed for a tribunal to consider indirect or circumstantial evidence
Evidence – Corruption – Burden of proof – Whether the burden of proof shifted once prima facie evidence of corruption had been established
Evidence – Corruption – Causation – Whether a party alleging corruption had to show that a benefit would not have been obtained but for the corrupt act – Whether an alleged act of corruption must concern foundational rights to impact upon a tribunal’s jurisdiction
Evidence – Authenticity – Adverse inference – Whether a party’s refusal to allow the testing of a document’s authenticity invited an adverse inference of fabrication
Jurisdiction – Investment – Corruption – Attribution – Whether allegedly corrupt acts prior to the establishment of the investment were proved – Whether proven acts of corruption were attributable to the investor
Jurisdiction – Investment – Legality – Interpretation – Whether the BIT imposed a strict legality or formal admission requirement – Whether the retroactive invalidation of a contract was relevant to the legality of the investment
Admissibility – Corruption – Causation – Whether improper conduct in the performance of the investment was proved – Whether proven acts of corruption were causally linked to any right or benefit obtained by the investor – Whether proven acts of corruption were attributable to the investor
Admissibility – Contract – Whether the existence of a contract under municipal law was a matter of admissibility or merits
State responsibility – Attribution – Territorial unit – Government officials – ILC Articles on State Responsibility, Article 4 – ILC Articles on State Responsibility, Article 7 – Whether the conduct of provincial authorities and their officials was attributable to the State
State responsibility – Attribution – Autonomous institution – Governmental authority – ILC Articles on State Responsibility, Article 5 – ILC Articles on State Responsibility, Article 8 – Whether the conduct of an autonomous development agency was an exercise of governmental authority – Whether an autonomous entity was directed or controlled by the State
Fair and equitable treatment – Interpretation – Autonomous standard – Legitimate expectation – Whether the BIT referenced the minimum standard under customary international law or created an autonomous standard of treatment – Whether the standard protected the legitimate expectation of an investor
Fair and equitable treatment – Legitimate expectation – Contract – Regulatory framework – Specific assurance – Whether a contract gave rise to a legitimate expectation – Whether the regulatory framework gave rise to a legitimate expectation – Whether specific assurances of government officials gave rise to a legitimate expectation – Whether the investor’s legitimate expectation was breached by denying its application for a mining lease – Whether the State had executed a plan to take over the investment – Whether there were nevertheless legitimate reasons for the State to deny the application for a mining lease – Whether the application for a mining lease was denied on the basis of routine regulatory requirements
Expropriation – Indirect expropriation – Substantial deprivation – Regulatory power – Whether the measure resulted in substantial deprivation of value or rendered useless an investor’s rights – Whether the measure was a legitimate exercise of regulatory power – Whether the State complied with the criteria for lawful expropriation
Non-impairment – Interpretation – Whether the State’s obligation not to impair investments was qualified by the words “subject to its laws” – Whether the absence of usual qualifications meant that any impairing measures were in breach of the standard – Whether the State’s measures were arbitrary, discriminatory or unreasonable
Counterclaim – Jurisdiction – Consent – Municipal law – Standing – Whether the tribunal had jurisdiction to hear counterclaims – Whether consent to counterclaims was limited to treaty law or extended to contract and public law – Whether the State had standing to arbitrate the rights and obligations entered into by a territorial unit and its agencies under municipal law
Counterclaim – Legality – Interpretation – Whether a legality requirement in a treaty definition gave rise to any obligation of the investor with corresponding liability
Strabag SE v. Libya
- ICSID (Arbitration Tribunal). 29 June 2020 22 June 2020
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- 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