Hostname: page-component-cc8bf7c57-pd9xq Total loading time: 0 Render date: 2024-12-11T22:11:30.442Z Has data issue: false hasContentIssue false
  • English
  • Français

Contract Claims vs. Treaty Claims: Mapping Conflicts Between Icsid Decisions on Multisourced Investment Claims

Published online by Cambridge University Press:  27 February 2017

Yuval Shany
Yuval Shany*
Affiliation:
Amsterdam Center for International Law, University of Amsterdam (2004)
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Notes and Comments
Information
American Journal of International Law , Volume 99 , Issue 4 , October 2005 , pp. 835 - 851
Copyright
Copyright © American Society of International Law 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 The International Centre for Settlement of Investment Disputes was established pursuant to the 1965 Washington Convention. Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Mar. 18, 1965, 17 UST 1270, 575 UNTS 159 [hereinafter ICSID Convention].

2 Compañía de Aquas del Aconquija, S.A. v. Argentina, Decision on Annulment, ICSID No. ARB/97/3, 41 ILM 1135, 1154 (2002) (ad hoc comm.July 3, 2002) [hereinafter Vivendi II]. Unless another Web site is listed, the ICSID decisions and awards discussed below are available online at <http://www.worldbank.org/icsid/cases/cases.htm>.

3 SGS Société Générale de Surveillance S.A. v. Pakistan, Decision on Jurisdiction, ICSID No. ARB/01/13 (Aug. 6, 2003), 18 ICSID Rev. 301 (2003), 42 ILM 1290 (2003) [hereinafter SGS v. Pakistan].

4 SGS Société Générale de Surveillance S.A. v. Philippines, Decision on Jurisdiction, ICSID No. ARB/02/6 (Jan. 29, 2004) [hereinafter SGS v. Philippines].

5 Joy Mining Machinery Ltd. v. Egypt, ICSID No. ARB/03/11 (Aug. 6, 2004) [hereinafter Joy Mining].

6 Salini Costruttori S.p.A. v. Jordan, Decision on Jurisdiction, ICSID No. ARB/02/13 (Nov. 29, 2004) [hereinafter Salini].

7 Cf. Nicolaidis, Kalypso & Joyce, L. Tong, Diversity or Cacophony ? The Continuing Debate over New Sources of International Law, 25 Mich. J. Int’l L. 1349, 1351 (2004)Google Scholar (identifying inefficiency, loss of predictability, and delegitimacy as risks associated with the fragmentation of international law).

8 According to ICSID, by 1996 there were some 1100 BITs, and more than 70% of them were concluded after 1987. See List of Parties to Bilateral Investment Treaties, at <http://www.worldbank.org/icsid/treaties/intro.htm>.

A more recent note asserts that the number of BITs now exceeds 2000. José, E. Alvarez, The Regulation of Foreign Direct Investment: Introduction, 42 Colum. J. Transnat’l L. 1, 2 (2003).Google Scholar

9 Between 1972 and 2003, ICSID settled eighty-eight cases. Still, almost the same number of cases—eighty-five—is currently pending before ICSID panels. This explosive increase is arguably indicative of the growing accessibility and appeal of ICSID dispute settlement procedures.

10 The term “international investment” has been construed very broadly in international practice, as encompassing a variety of cross-border transactions, involving transfer of money or effort from one state to the other, in exchange for an asset, with the expectation of returns or profits obtained in the territory of the host state. See, e.g., North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., Art. 1139, 107 Stat. 2066, 32 ILM 289, 605 (1993) [hereinafter NAFTA] ;Joy Mining, supra note 5, para. 53; Tokios Tokeles v. Ukraine, Decision on Jurisdiction, ICSID No. ARB/02/18, para. 75 (Apr. 29, 2004).

11 See, e.g., NAFTA, supra note 10, Arts. 1102-1110; Agreement for the Promotion and Protection of Investments, May 16, 1997, Japan-H.K., Arts. 3-7, 36 ILM 1423 (1997); Agreement for the Promotion and Reciprocal Protection of Investments, July 4, 1989, Fr.-USSR, Arts. 3-5, 29 ILM 320 (1990); 2004 U.S. Model Bilateral Investment Treaty, Arts. 3-6, available at <http://www.ustr.gov> [hereinafter U.S. Model BIT],

12 See, e.g., Universal Declaration of Human Rights, Art. 17(2), GA Res. 217A(III), UN Doc. A/810, at 71 (1948); Francioni, Francesco, Compensation for Nationalisation of Foreign Property: The Borderland Between Law and Equity, 24 Int’l & Comp. L.Q. 255, 263 (1975).Google Scholar

13 See, e.g., Agreement for the Promotion and Protection of Investments, Apr. 14, 1994, India-UK, Art. 3(3), 34 ILM 935 (1995); Treaty Concerning the Encouragement and Reciprocal Protection of Investment, June 17, 1992, Russ.-U.S., Art. 2(2)(c), 31 ILM 794 (1992).

14 See, e.g., NAFTA, supra note 10, Art. 1120; U.S. Model BIT, supra note 11, Art. 24(3). Some international instruments allow the investor to choose between several dispute settlement alternatives, which typically include both national and international judicial or arbitral procedures. See, e.g., Treaty Concerning the Encouragement and Reciprocal Protection of Investment, July 2, 1997, Jordan-U.S., Art. IX, S. Treaty Doc. No. 106-30, 36 ILM 1498 (1997); European Energy Charter, Dec. 12, 1994, Art. 26, 1994 O.J. (L 380) 24, 33 ILM 360 (1995). Finally, one should also note that numerous aspects of investment disputes might fall under the compulsory jurisdiction of domestic and international courts or tribunals (e.g., the ICJ in cases involving “optional clause” countries or those brought on the basis of a general compromissory clause). See, e.g., Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ Rep.15 (July 20) [hereinafter ELSI]. This adds another potential avenue of jurisdictional competition between different investment courts and tribunals.

15 See, e.g., ICSID Convention, supra note 1, Art. 26; NAFTA, supra note 10, Art. 1121(2)(b).

16 Maffezini v. Spain, Decision on Jurisdiction, ICSID No. ARB/97/7 (Jan. 25, 2000), 16 ICSID Rev. 212 (2001), 40 ILM 1129, 1138 (2001); see also Gas Natural SDG S.A. v. Argentina, Decision on Jurisdiction, ICSID No. ARB/ 03/10, paras. 30-31 (June 17, 2005), available at <http://www.asil.Org/pdfs/GasNat.v.Argentina.pdf>; Siemens A.G. v. Argentina, Decision on Jurisdiction, ICSID No. ARB/02/8, para. 103 (Aug. 3, 2004); Técnicas Medioambientales Teemed, S.A. v. Mexico, ICSID No. ARB(AF)/00/2, para. 69 (May 29, 2003) (unofficial trans.) (citing Maffezini with approval). The Maffezini holding, however, was criticized and distinguished in some subsequent ICSID cases. Plama Consortium Ltd. v. Bulgaria, Decision on Jurisdiction, ICSID No. ARB/03/24, paras. 183-227 (Feb. 8, 2005); Salini, supra note 6, paras. 115-19.

17 According to ICSID’s decision in SGS v. Pakistan, the claimant is normally free to characterize his claims as either national or international law claims. SGS v. Pakistan, supra note 3, 42 ILM at 1313, para. 145; see also Salini, supra note 6, para. 136.

18 Still, some degree of forum shopping might be healthy, as it increases the likelihood that the parties will find a proper and competent forum to adjudicate their dispute, and places competitive pressures on courts to improve their procedures. For discussion, see Shany, Yuval, The Competing Jurisdictions of International Courts and Tribunals 144–45 (2003).Google Scholar

19 See, e.g., id. at 80.

20 Agreement for the Promotion and Reciprocal Protection of Investments, July 3, 1991, Arg.-Fr., 1728 UNTS 298.

21 Compañía de Aquas del Aconquija, S.A. v. Argentina, ICSID No. ARB/97/3, 40 ILM 426, 443, para. 78 (2001) (Nov. 21, 2000) [hereinafter Vivendi I].

22 Id, para. 80; cf. ELSI, 1989ICJ Rep. at 42-43 (the exhaustion-of-local-remedies rule cannot be tacitly dispensed with and it can block interstate claims that are bound up with the investment claims it covers).

23 Vivendi I, 40 ILM at 446, para. 92.

24 Vivendi II, supra note 2, 41 ILM at 1154, para. 96; cf. CMS Gas Transmission Co. v. Argentina, Decision on Jurisdiction, ICSID No. ARB/01/08, 42 ILM 788, 800 (2003) (July 17, 2003), available at <http://www.asil.org/ilib/cmsargentina.pdf>.

25 Vivendi II, 41 ILM at 1156, para. 103.

26 Id. at 1155, para. 98 (emphasis added). The tribunal noted, however, that

where “the fundamental basis of the claim” is a treaty laying down an independent standard by which the conduct of the parties is to be judged, the existence of an exclusive jurisdiction clause in a contract between the claimant and the respondent state or one of its subdivisions cannot operate as a bar to the application of the treaty standard.

Id. at 1156, para. 101.

For other applications of the “essential basis” test, see Eureko BV v. Poland, Partial Award, paras. 112-13 (ad hoc arb. trib. Aug. 19, 2005), availableat<http://www.eureko.net/press/eureko/archives/2005-09-05.asp>; Occidental Exploration & Prod. Co. v. Ecuador, para. 57 (UNCITRAL July 1, 2004), available at <http://www.asil.org/ilib/OEPCEcuador.pdf> [hereinafter Occidental]; Joy Mining, supra note 5, paras. 90-91; Siemens, supra note 16, para. 180.

27 As it happened, the first-instance Swiss court dismissed the case on the basis of the contractual compromissory clause. Still, the appeals of SGS were rejected on the basis of state immunity arguments.

28 Agreement on the Promotion and Reciprocal Protection of Investments, July 11, 1995, Pak.-Switz., Art. 9, quoted in SGS v. Pakistan, supra note 3, 42 ILM at 1303, para. 80.

29 SGS v. Pakistan, supra note 3, Procedural Order No. 2 (Oct. 16, 2002). Some controversy surrounds the authority of ICSID tribunals to issue binding and enforceable provisional measures. Christoph, H. Schreuer, The ICSID convention: a commentary 757–62 (2001).Google Scholar Still, it may be argued that the comparable language used in Article 47 of the ICSID Convention and Article 41 of the ICJ Statute might render the ICJ’s LaGrand Judgment relevant for the purpose of ICSID as well. LaGrand (Ger. v. U.S.), Merits, 2001 ICJ Rep. 466, 506, para. 109 (June 27).

30 It may be noted that SGS argued, and the ICSID tribunal accepted, that it would not be able to bring its treaty claims in the context of the Pakistani proceedings. SGS v. Pakistan, 42 ILM at 1308, para. 119, & 1316, para. 154.

31 Id. at 1315-16, paras. 146-55.

32 Id. at 1316-18, paras. 156-62. Article 9 authorized ICSID to settle disputes “with respect to investments between a Contracting Party and an investor of the other Contracting Party.” See note 28 supra.

33 SGS v. Pakistan, supra note 3, 42 ILM at 1319-21, paras. 166-74. Article 11 provides: “Either Contracting Party shall constantly guarantee the observance of the commitments it has entered into with respect to the investments of the investors of the other Contracting Party.” Id. at 1318, para. 163. However, the tribunal held that the expansive construction advocated by SGS—incorporating within the BIT the fulfillment of contractual obligations—would result in the imposition of unreasonable procedural and substantive burdens on host states. The tribunal was not willing to assume, without clearer textual guidance, that this was the meaning intended by the drafters.

34 Agreement on the Promotion and Reciprocal Protection of Investments, Mar. 31, 1997, Phil.-Switz., Art. VIII, quoted in SGS v. Philippines, supra note 4, para. 34. Article VIII provides the investor with a choice between three dispute settlement procedures: national courts, an ICSID tribunal, and an ad hoc UNCITRAL arbitral tribunal.

35 SGS v. Philippines, supra note 4, paras. 52-56, 73-75.

36 Id., paras. 64, 85.

37 Id., paras. 65, 86. Article X(2) provides: “Each Contracting Party shall observe any obligation it has assumed with regard to specific investments in its territory by investors of the other Contracting Party.” Id., para. 34.

38 Id., paras. 66, 87. The chapeau to Article VIII covers disputes “with respect to investments between a Contracting Party and an investor of the other Contracting Party.”

39 Id., para. 60.

40 Id., paras. 116-28.

41 Id., paras. 125-26.

42 Id., para. 121 (referring in passing to some textual differences between the two clauses). Compare Swiss-Pakistani BIT, Art. 11, supra note 33, with Swiss-Philippine BIT, Art. X(2), supra note 37. The minor variations in the texts of the two clauses hardly explain the radically divergent outcomes of the two cases.

43 SGS v. Philippines, supra note 4, paras. 130-35. For a similar holding, see Salini Costruttori S.p.A. v. Morocco, Decision on Jurisdiction, ICSID No. ARB/00/4, 6 ICSID Rep. 400 (2004), 42 ILM 609, 623 (2003) (July 31, 2001).

44 SGS v. Philippines, supra note 4, para. 134. Both clauses invested the ICSID tribunal with jurisdiction over “disputes with respect to investments.”

45 Id., para. 154.

46 Id., paras. 139-43. It might also have been argued that the contractual compromissory clause constituted a valid choice of procedure on the part of the investor under Article VIII of the BIT.

47 Id., para. 155.

48 Id., paras. 162-63.

49 Id., para. 175. The majority grounded its decision to stay proceedings in its general powers under the ICSID Arbitration Rules and the Washington Convention to “make orders required for the conduct of the proceeding.” Id., para. 173.

50 SGS v. Philippines, supra note 4, Declaration of Antonio Crivellaro, paras. 2-7. Professor Crivellaro opined that differences in the identities of the parties to the BIT and the contract rendered the lex specialis principle inapplicable. Still, the third-party rights conferred by the BIT upon SGS enabled it to invoke the lex posteriori argument. Id., paras. 9-10. The lex posteriori argument, however, is problematic, given the renewal of the contract after the conclusion of the BIT. Cf. Pauwelyn, Joost, Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands, 25 Mich. J. Int’l L. 903, 908 (2004)Google Scholar (the lex posteriori argument does not always work in international law).

51 SGS v. Philippines, Declaration of Prof. Crivellaro, supra note 50, para. 11.

52 Joy Mining, supra note 5, para. 63.

53 Id., paras. 77-82 (adopting the dicta of the SGS v. Pakistan tribunal on the importance of the nonprominent location of the umbrella clause in the BIT and on the illogicality of a construction transforming all contract claims into treaty claims). Notably, the language of the umbrella clause in the UK-Egypt BIT addressed in Joy Mining is virtually identical to that of the umbrella clause in the Swiss-Philippine BIT discussed in SGS v. Philippines. Agreement for the Promotion and Protection of Investments, June 11, 1975, Egypt-UK, Art. 2(2), Cmnd. 6141, 14 ILM 1470, 1471 (1975) (“Each Contracting Party shall observe any obligation it may have entered into with regard to investments of nationals or companies of the other Contracting Party.”). Hence, again, the difference in outcome must be explained in legal policy terms.

54 Joy Mining, supra note 5, paras. 89-91.

55 Salini, supra note 6, paras. 93-96.

56 Id., paras. 97-101.

57 Id., paras. 126-27. Indeed, Article 2(4) of the Italian-Jordanian BIT uses different language from that of the comparable provisions in the umbrella clauses of the Swiss-Philippine and Swiss-Pakistani BITs. Agreement on the Promotion and Protection of Investments, July 21, 1999, Italy-Jordan, Art. 2(4), quoted in id., para. 66 (“Each Contracting Parry shall create and maintain in its territory a legal framework apt to guarantee the investors the continuity of legal treatment, including the compliance, in good faith, of all undertakings assumed with regard to each specific investor.”). For the text of the provisions in the umbrella clauses of the Swiss-Philippine and Swiss-Pakistani BITs, see supra notes 37 and 33, respectively.

58 Salini, supra note 6, para. 166.

59 See ;Azurix Corp. v. Mexico, Decision on Jurisdiction, No. ARB/01/12, 43 ILM 262, 277 (2004) (Dec. 28, 2003); Loewen Group, Inc. v. United States, ICSID No. ARB (AF)/98/3, 42 ILM 811,819,833 (2003) (June 26, 2003); Wena Hotels Ltd v. Egypt, Annulment Proceeding, ICSID No. ARB/98/4, 41 ILM 933, 940 (2002) (Jan. 28, 2002) (not available on the ICSID Web site); cf. Eureko, supra note 26, paras. 112-13; Occidental, supra note 26, paras. 50-52; CME Czech Republic B.V. v. Czech Republic, Partial Award, para. 410 (UNCITRAL Sept. 13, 2001), available at <http://www2004.mfcr.cz/static/Arbitraz/en/PartialAward.pdf>; Anaconda-Iran, Inc. v. Iran, 13 Iran-U.S. CI. Trib. Rep. 199, 224 (1988).

60 Cf. Certain German Interests in Polish Upper Silesia (Ger. v. Pol.), 1926 PCIJ (ser. A) No. 7, at 19 (“From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures.”).

61 Cf. Certain German Interests in Polish Upper Silesia (Ger. v. Pol.), Jurisdiction, 1925 PCIJ (ser. A) No. 6, at 20 (PCIJ and the mixed arbitral tribunals, as well as the Polish Civil Tribunal, “are not courts of the same character”).

62 See Teubner, Gunther, ‘Global Bukowina’: Legal Pluralism in the World Society, in Global Law Without A State 3, 11–15 (Teubner, Gunther ed., 1997)Google Scholar; Teubner, Gunther, Breaking Frames: The Global Interplay of Legal and Social Systems, 45 Am. J. Comp. L. 149, 157 (1997)Google Scholar; Klaus, Günther, Legal Pluralism and the Universal Code of Legality: Globalisation as a Problem of Legal Theory (2003), at <http://www.law.nyu.edu/clppt/program2003/readings/gunther.pdf>..>Google Scholar

63 See Shany, supra note 18, at 23-28.

64 See Loewen, supra note 59, 42 ILM at 837, paras. 160-62. According to the ICJ, too, waiver of the requirement to exhaust local remedies cannot be presumed. ELSI, 1989 ICJ Rep. at 42.

65 For example, the Iran-U.S. Claims Tribunal has construed the silence of the Algiers Declaration on the Settlement of Claims on the matter as indicative of the absence of an exhaustion-of-local-remedies requirement. Amoco lnt’1 Fin. Corp. v. Iran, 15 Iran-U.S. CI. Trib. Rep. 189, 197 (1987); see also William, S. Dodge, National Courts and International Arbitration: Exhaustion of Remedies and Res Judicata Under Chapter Eleven of NAFTA, 23 Hastings Int’l & Comp. L. Rev. 357, 373–76 (2000).Google Scholar

66 See, e.g., Vivendi I, supra note 21, 40 ILM at 444, para. 81.

67 In addition, a third set of proceedings was initiated by a local firm, controlled by Lauder and CME, before the domestic courts of the Czech Republic.

68 See CME Czech Republic, supra note 59, para. 412 (“There is also no abuse of the Treaty regime by Mr. Lauder in bringing virtually identical claims under two separate Treaties.”) (emphasis added). For a concise statement of the two BIT claims, see id., para. 24; Lauder v. Czech Republic, para. 193 (UNCITRAL Sept. 3, 2001), available at <http://www2004.mfcr.cz/static/Arbitraz/en/FinalAward.pdf>.

69 Lauder, supra note 68; CME Czech Republic, supra note 59. The separate nature of the two proceedings was confirmed by the Swedish courts, which rejected a motion for annulment of the Stockholm award. Czech Republic v. CME Czech Republic B.V., 42 ILM 919 (2003) (Svea Ct. App. May 15, 2003).

70 SGS v. Philippines, supra note 4, para. 171. The case it cited is MOX Plant (Ir. v. UK), Order No. 3, 42 ILM 1187, 1190 (2003) (Perm. Ct. Arb. June 24, 2003) [hereinafter LOS Convention MOX Plant Order].

71 Convention for the Protection of the Marine Environment of the North-East Adantic, Sept. 22, 1992, 32 ILM 1069 (1992) [hereinafter OSPAR],

72 In particular, Directive 90/313/EEC on the Freedom of Access to Information on the Environment, 1990 O.J. (L 158) 56, since repealed by Directive 2003/4/EC on Public Access to Environmental Information, 2003 O.J. (L 41) 26.

73 The claim in England relied in particular upon the Environmental Information Regulations (1992), SI 1992/ 3240, 1999 Envt’l L. Rep. 447. On January 1, 2005, the 1992 regulations were replaced by Environmental Information Regulations (2004), SI 2004/3391, available at <http://www.opsi.gov.uk/si/si2004/draft/20040331.htm>.

74 Case C-469/03, Commission v. Ireland, Notice of Action (Nov. 30, 2003), 2004 O.J. (C 7) 24 (the case is still pending before the ECJ); Mahony, Honor, UK Could Face Legal Action over Nuclear Site, EUObserver.Com, Sept. 3, 2004 Google Scholar, available in Lexis, News Library, EU News File. Greenpeace brought another case against the British government before the domestic English courts.

75 Access to Information Under Article 9 of the OSPAR Convention (Ir. v. UK), para. 142, available at <http://w-ww.pca-cpa.org> (Perm. Ct. Arb. July 2, 2003) [hereinafter OSPAR Award]; see Ted, L. McDorman, Case Report: Access to Information Under Article 9 of the OSPAR Convention (Ireland v. United Kingdom), in 98 AJIL 330 (2004).Google Scholar In actuality, the tribunal displayed reluctance to utilize non-OSPAR sources, even as interpretive aids. See Shany, Yuval, The First MOX Plant Award: Coordinating Between Competing Environmental Regimes and Dispute Settlement Procedures, 17 Leiden J. Int’l L. 815, 822 (2004).Google Scholar

76 OSPAR Award, supra note 75, paras. 85,143. But see id., Dissenting Opinion of Gavan Griffith, QC, para. 2. Interestingly, the tribunal did not explicitly address the significance of the OSPAR jurisdictional clause. OSPAR, supra note 71, Art. 32(1) (“Any disputes between Contracting Parties relating to the interpretation or application of the Convention, which cannot be settled otherwise by the Contracting Parties concerned, . . . shall at the request of any of those Contracting Parties, be submitted to arbitration under the conditions laid down in this Article.”). For a discussion of the difference between jurisdiction and applicable law in the context of the WTO dispute settlement mechanism, see Pauwelyn, Joost, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003).CrossRefGoogle Scholar

77 OSPAR Award, supra note 75, para. 143.

78 MOX Plant (Ir. v. UK), Provisional Measures Order, Case No. 10 (ITLOS Dec. 3, 2001), available at <http://www.itlos.org> [hereinafter ITLOS MOX Plant]. The case was cited by the OSPAR tribunal in OSPAR Award, supra note 75, para. 141.

79 OSPAR Art. 32(1), supra note 76.

80 Treaty Establishing The European Community, Mar. 25,1957,298 UNTS11, as amended by Treaty of nice, Feb. 26, 2001, 2001 O.J. (C 80) 1, consolidated version, Dec. 24, 2002, 2002 OJ. (C 325) 33, Art. 292 [hereinafter EC Treaty] (“Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein.”).

81 The United Nations Convention on the Law of the Sea provides that law of the sea disputes should be adjudicated, as a rule, by the ICJ, ITLOS, an arbitration tribunal, or a special arbitration tribunal. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 287, 1833 UNTS 397 [hereinafter LOS Convention] . Still, Articles 281-82 of the LOS Convention provide that the dispute settlement bodies operating under the Convention retain only residual jurisdiction, which is subject to other arrangements entered into by the parties. For discussion of the nature of these jurisdictional provisions, see Shany, supra note 18, at 201-08; Bernard, H. Oxman, Complementary Agreements and Compulsory Jurisdiction, 95 AJIL 277 (2001).Google Scholar

82 ITLOS MOX Plant, supra note 78, paras. 49-50. Note, however, that jurisdictional decisions rendered in the context of provisional measures requests are not final, and are subject to a rather flexible standard of prima facie jurisdiction. LOS Convention, supra note 81, Art. 290(1). For a comparable decision on provisional measures, see Southern Bluefin Tuna (Austl. v. Japan; N.Z. v. Japan), Provisional Measures Order, Case Nos. 3, 4, 38 ILM 1624, 1632 (1999) (ITLOS Aug. 27, 1999).

83 LOS Convention MOX Plant Order, supra note 70, 42 ILM at 1190, paras. 20-22. For a discussion of the status of the LOS Convention under EU law, see Churchill, Robin & Scott, Joanne, The MOX Plant Litigation: The First Half-Life, 53 Int’l & Comp. L.Q. 643 (2004).CrossRefGoogle Scholar

84 LOS Convention MOX Plant Order, 42 ILM at 1191, para. 26.

85 In contradistinction, the arbitral tribunal held that the LOS Convention and OSPAR claims are clearly separable. Id. at 1189-90, para. 19. For another example of an integrationist view that seeks to coordinate between the LOS Convention and regional fisheries instruments, see Southern Bluefin Tuna (Austl. v. Japan; N.Z. v. Japan), Jurisdiction and Admissibility, 39 ILM 1359, 1388, para. 54 (2000) (LOS Convention arb. trib. Aug. 4, 2000) (“To find that, in this case, there is a dispute actually arising under UNCLOS which is distinct from the dispute that arose under the CCSBT would be artificial.”); see Kwiatkowska, Barbara, Case Report: Southern Bluefin Tuna (Australia and New Zealand v. Japan), Jurisdiction and Admissibility, in 95 AJIL 162 (2001).CrossRefGoogle Scholar

86 EC Treaty Art. 292; see also Treaty Establishing the European Atomic Energy Community (Euratom) , Mar. 25, 1957, Art. 193, 298 UNTS 167.

87 LOS Convention MOX Plant Order, 42 ILM at 1191, para. 29.

88 See, for example, the work of the ILC on the topic. International Law Commission, Report on the Work of Its Fifty-sixth Session, ch. X, UN GAOR, 59th Sess., Supp. No. 10, at 281, UN Doc. A/59/10 (2004). See also a recent special edition of a leading international law journal, which was dedicated to the topic. Symposium, Diversity or Cacophony?: New Sources of Norms in International Law, 25 Mich. J. Int’l L. 845 (2004).Google Scholar

89 See generally Hafner, Gerhard, Pros and Cons Ensuing from Fragmentation of International Law, 25 Mich. J. Int’l L. 849 (2004)Google Scholar; see also Pauwelyn, supra note 50, at 904.

90 S. Pacific Props. (Middle East) v. Egypt, ICSID ARB/84/3, Decision on Jurisdiction, 3 ICSID Rep. 112,129 (1995) (Nov. 27, 1985); SGS v. Philippines, supra note 4, para. 171 (“[International tribunals have a certain flexibility in dealing with questions of competing forums.”). It is also possible to rely upon “general powers” provisions found in the constitutive instruments of several international courts and tribunals. ICSID Convention, supra note 1, Art. 44; LOS Convention, supra note 81, Annex VII, Art. 5 (Arbitration Rules); Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, Art. 12.1, 33 ILM 1226 (1994); ICSID Rules of Procedure for Arbitration Proceedings, as amended Sept. 29, 2002, Art. 19, available at <http://www.worldbank.org/icsid/index.html>; see also Shany, supra note 18, at 260-66.

91 See Administration of Prince von Pless (Ger. v. Pol.), Preliminary Objection, 1933 PCIJ (ser. A/B) No. 52, at 16 (Feb. 4) (“[I]t will certainly be an advantage to the Court . . . to be acquainted with the final decisions of the Supreme Polish Administrative Tribunal upon the appeals brought by the Prince von Pless and now pending before that Tribunal; . . . the Court must therefore arrange its procedure so as to ensure that this will be possible.”).

92 See, e.g., Fisheries (UKv. Nor.), 1951 ICJ Rep. 116, 142 (Dec. 18); Corfu Channel (UK v. Alb.), 1949 ICJ Rep. 4, 46 (Dec. 15) (Alvarez, J., sep. op.); Oscar Chinn (UK/Belg.), 1934 PCIJ (ser. A/B) No. 63, at 86 (Dec. 12); Free Zones of Upper Savoy and the District of Gex (Fr./Switz.), 1932 PCIJ (ser. A/B) No. 46, at 167 (June 7); Certain German Interests in Polish Upper Silesia, 1926 PCIJ (ser. A) No. 7, at 30 (May 25); Fur Seal Deal (Gr. Brit. v. U.S.), 1 John Bassett, Moore, History and Digest of the International Arbitrations to Which The United States Has Been A Party 755, 889–90 (1898)Google Scholar; Cheng, Bin, General Principles of Law as Applied By International Courts and Tribunals 121 (1987).Google Scholar

93 Compare ‘Camouco’ (Pan. v. Fr.), Prompt Release, Case No. 5, 39 ILM 666, 690 (2000) (ITLOS Feb. 7, 2000) (Anderson, J., dissenting), stating:

It must be unprecedented for the same issue to be submitted in quick succession first to a national court of appeal and then to an international tribunal, and for the issue to be actually pending before the two instances at the same time. This situation is surely undesirable and not to be encouraged. It smacks of “forum hopping” and hardly makes for the efficient administration of justice.

See also id. at 696 (Vukas, J., dissenting).

The prompt-release-of-vessels provisions of the LOS Convention, however, seem to encourage intervention by ITLOS in domestic proceedings, as they introduce a strict time frame for resort to that tribunal and use language suggestive of its authority to review domestic decisions. Article 292 of the LOS Convention, supra note 81, provides in pertinent part:

1. Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.

. . . .

3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew, (emphasis added)

Indeed, in a few prompt-release-of-vessels cases, the majority in ITLOS upheld its jurisdiction to address the claim regardless of the state or outcome of the domestic proceedings. ‘Volga’ (Russ. v. Austl.), Prompt Release, Case No. 11, 42 ILM 159 (2003) (ITLOS Dec. 23, 2002); ‘Monte Confurco’ (Sey. v. Fr.), Prompt Release, Case No. 6 (ITLOS Dec. 18,2000), available at <http://www.itlos.org>; ‘Camouco,’ supra; see also Bernard, H. Oxman & Vincent, P. Bantz, Case Report: The “Camouco” (Panama v. France) (Judgment), in 94 AJIL 713 (2000).Google Scholar