Mytilineos Holdings SA v. State Union of Serbia and Montenegro and Republic of Serbia

Abstract

Foreign investment — Contract claims as opposed to treaty claims — Whether violation of contract is violation of international law — Responsibility of host State for contracts concluded by State-owned entity

Foreign investment — Definition of investment — Claims to money as investments under the BIT — Whether contractual rights may constitute an investment — Combined effect of contracts leading to investment — Whether claims from commercial activities may constitute an investment — Whether assets need to be “invested” to constitute investment

Foreign investment — Requirement that investments be made in accordance with laws of host State — Whether investments need to be registered — Legality of investment as primary criterion for assessment of compliance with laws of host State

Jurisdiction — Jurisdiction ratione materiae — ICSID Convention, Article 25 — BIT as only source for jurisdiction considerations in UNCITRAL arbitration

Jurisdiction — Jurisdiction ratione personae — Changes in identity of States — Jurisdiction to be determined as of date of initiation of dispute — Whether jurisdiction over non-party to BIT exists — Distinction between jurisdiction and responsibility over acts of constituent unit

Jurisdiction — Requirement to state prima facie case — Distinction between jurisdiction and merits phase of proceedings

Jurisdiction — Exhaustion of local remedies — Clause in BIT on choice between domestic courts and international arbitration — Exhaustion of local remedies not a precondition to international arbitration — Policy reasons for granting direct access to international arbitration

State responsibility — Responsibility for acts of constituent units of host State — ILC Draft Articles on State Responsibility, Article 4 — Whether State responsible for acts of private parties