Government of Kuwait v. American Independent Oil Company (Aminoil)

Abstract

International law in general — Sources — General principles of law — Role and importance — Resolutions of the General Assembly of the United Nations — Resolutions on nationalization of foreignowned property — Value as sources of international law

International law in general — Relation to municipal law — Governing law of oil concession — Reference to laws of the host State and the concessionaire’s State and to general principles — Whether including public international law — International law and the law of Kuwait

States as international persons — In general — Sovereignty and independence — In matters of domestic jurisdiction — Oil concession — Concession granted while Kuwait a protected State — Effect of independence — Effect of Kuwait Constitution — Whether concession ‘colonial’ — Whether stabilization clause in Concession still to be regarded as valid

States as international persons — Dependent States and territories — Protected States and protectorates — Kuwait — Oil concession granted while Kuwait a protected State — Effect of — Whether concession 'colonial' in character — Whether stabilization clauses to be regarded as valid

States as international persons — State succession — Succession with regard to contractual obligations and concessions — Oil concession granted while Kuwait a protected State — Effect of independence — Whether concession 'colonial' in character — Whether stabilization clauses valid

State territory — Miscellaneous — Kuwait — Saudi Arabia Neutral Zone — Status of oil concession granted by Kuwait in Zone

State responsibility — Nature and kinds of — For taking of, or interference with, property — Nationalization — Requirements for lawful nationalization — Nationalization of concession — Compensation

State responsibility — Damages — Award of damages in general — Nationalization of concession — Relation between measure of damages for unlawful nationalization and compensation for lawful nationalization — Equitable measure of compensation — Loss of profits — Duty of Tribunal to take account of legitimate expectations of parties under concession — Effect of inflation

State responsibility — Interest — In general — Award of interest in addition to award of compensating allowance for effects of inflation

State responsibility — Interest — Rate of interest — Compound interest — Award of compound interest

State responsibility — Interest — The dies a quo — Award of compensation for nationalization of oil concession — Arbitration Award made four and a half years after date of nationalization — Award of interest from date of nationalizatio~ to date on which parties complied with Award

Disputes — Arbitration — In general — The law applied by arbitral tribunals — Transnational arbitration between State and foreign company — Lex arbitri — Law governing substantive issues

Disputes — Arbitration — Procedure — Determination of rules of procedure by the Tribunal

State responsibility — Nature and kinds of State responsibility — For revocation of, or interference with, concessions or concessionary contracts — Law nationalizing concession — Dual nature of law as act of nationalization and termination of a contract — Conditions of lawful nationalization — Requirement of public benefit — Nondiscrimination — Role of stabilization clauses in concession — Stabilization clause in general terms — Whether forbidding nationalization — Permanent sovereignty over natural resources — Whether giving rise to a new rule of ius cogens — Evolution of concession — Effect of negotiation — Whether gradual recognition of State's dominant position in relation to concession — Whether overriding stabilization clauses

Concession — Clause requiring parties to negotiate if general trend in Middle East concessions arises which benefits concessionary States — Nature of a duty to negotiate — Whether a duty to agree — Parties agreeing on issues of principle but failing to agree on details — Whether Tribunal entitled to complete their agreement — Abu Dhabi Formula concerning taxation of oil companies' profits — Parties unable to agree upon detail of application to concession — Nationalization of concession — Whether concessionaire under an obligation to make payment to government in respect of past profits — Whether Tribunal entitled to calculate amount — Agreement amending concession applied on provisional basis — Concessionaire never receiving quid pro quo — Status of agreement — Duress — Whether economic pressure on concessionaire amounts to duress.

Duty of concessionaire to observe “good oil-field practice” — Whether discharged — Relative nature of obligation

Compensation for lawful nationalization — Whether based on net book value — Whether based on loss of profits — Need to satisfy legitimate expectations of parties — Reasonable rate of return — Method of calculation — Allowance for effects of inflation — Interest — Award of compound interest from date of nationalization — Additional award of allowance for inflation

Liabilities of nationalized concern — Assumption of liabilities by government — Whether company required to compensate Government

International law in general — Sources — Resolution of General Assembly — Practice of States and companies involved in oil industry — Relation of international law to law of Kuwait

Arbitration — Law applied by Arbitration Tribunal — Lex arbitri — Proper law of concession — Duty of Tribunal