Noble Ventures Inc. v. Romania

Abstract

Jurisdiction — Contract claims as opposed to treaty claims — Umbrella clause — Whether ICSID tribunal has jurisdiction over breach of contract obligations — Whether violation of a contract is a violation of international law — Umbrella clause as an exception to general rules of international law

State responsibility — Attribution — ILC Draft Articles on State Responsibility — Whether BIT contains guidance on attribution — Attribution of acts of entities separate from the State — Attribution of acts relating to investment — Distinction between attribution of commercial and governmental conduct

State responsibility — Liability for breach of contract by State — Co-existence of responsibility at municipal and international level — Requirement of restrictive interpretation — Wording of clause decisive in determining assimilation of contractual obligations to treaty obligations — Obligation to observe contractual agreements in good faith — Conclusion of collective labour agreement — Whether investor's knowledge of negotiations precludes breach

Foreign investment — Whether party is responsible for failure of investment — Knowledge of company's financial situation — Failure to exercise due diligence in company restructuring

Foreign investment — Full protection and security — Scope of State's obligation to protect investment — Duty to provide protection to foreign nationals in customary international law — Impairment of investment by arbitrary or discriminatory measures — Whether initiation of judicial reorganization proceedings can be arbitrary or discriminatory — Treatment of other investors

Foreign investment — Fair and equitable treatment — General standard and its specific applications

Expropriation — Whether expropriation through judicial reorganization proceedings possible — No expropriation where no viable company and no valuable assets

Costs — Principle that injured party should be compensated — “Loser pays” principle not common in international law — Considerations in the award of costs