La schématisation de l’obligation juridique sous la forme d’une obligation de comportement ou de résultat poursuit un objectif cognitif tendant à en déterminer l’objet et l’exécution. Toutefois, en droit international, la démarche informe très souvent une logique de catégorisation. Or, dans les rapports de systèmes, le droit interne n’est pas seulement l’objet de l’obligation internationale, il est dans certains contextes la condition de son exécution. Par ailleurs, du fait de l’insuffisant accommodement de la schématisation à l’ontologie de l’obligation internationale, les doctrines dualiste et civiliste qui inspirent ses cadres de pensée en obèrent la valeur heuristique. Après avoir relevé l’incidence de ce porte-à-faux sur la saisie phénoménologique de l’illicéité, l’auteur suggère d’envisager l’obligation juridique sous la forme d’une proposition hypothétique. Cette démarche permet, en amont, d’identifier la position logique du droit interne dans l’obligation internationale; en aval, de mettre en lumière la part que prend son incompatibilité dans la concrétisation de l’illicéité.

Jurisdiction — Consent — Revocation — Municipal law — ICSID Convention, Article 25 — Whether a State may revoke consent to arbitration by repealing municipal law

Jurisdiction — Investment — ICSID Convention, Article 25 — Municipal law — Whether investments were excluded from jurisdiction by express exceptions under municipal law

Jurisdiction — Consent — Temporality — Municipal law — Whether the revocation of consent to arbitration through the repeal of municipal law affected investments made prior to repeal

Admissibility — Fork-in-the-road clause — Judicial act — Competition law — Whether claims for breach of competition law before municipal courts were the same as the investment treaty claims

Admissibility — Domestic litigation requirement — Whether the exhaustion of local remedies was required — Whether the question was best left to the merits stage

Contract — Legitimate expectation — Legal stability — Competition law — Whether an agreement between the claimants and the State gave rise to a legitimate expectation that the State would not amend competition law

Municipal law — Stabilisation clause — Legitimate expectation — Legal stability — Adverse effect — Whether the claimants had a legitimate expectation to be protected by a stabilisation clause that had been repealed — Whether the claimants had a legitimate expectation to be protected against legislative reform — Whether the claimants demonstrated any adverse effect from legislative reform — Whether it was predictable that the State would undertake reform of its competition law

Fair and equitable treatment — Legitimate expectation — Arbitrariness — Denial of justice — Legal stability — Whether changes to competition law were in breach of the investment treaties — Whether alleged harassment and coercion were in breach of the standard of fair and equitable treatment — Whether the claimants were denied justice in the application of competition law by municipal courts

Umbrella clause — Municipal law — Contract — Legal stability — Whether a breach of municipal law could give rise to an investment treaty breach — Whether there was a breach of municipal law — Whether the State agreed not to reform competition law

Fair and equitable treatment — Legitimate expectation — Free transfer — Proportionality — Public interest — Whether the claimants had an expectation to make and have the right to dispose of a reasonable return on their investment — Whether the requirement to reinvest all profits was in breach of legitimate expectations — Whether the measure was a proportionate response in the public interest

Remedies — Restitution — Whether restitution was a feasible remedy in the circumstances

Remedies — Damages — Burden of proof — Quantum — Whether the claimants had established the scope of damage they suffered as a result of treaty breach

Remedies — Damages — Future damages — Whether the claim for future loss was premature

The role of international organisations in international law-making tends to be downplayed in this largely State-centric world. The practice of UNHCR, however, is reason enough for a more sophisticated appreciation of the role that operational entities can play in stimulating State practice, and of how they may interact with and guide domestic courts in treaty interpretation and application. The ILC's recently completed projects on customary international law and subsequent agreements and practice encourage a cautious approach, but the high degree of judicialisation in refugee decision-making, the strong legal content in the international protection regime and the impact of UNHCR's operational activities open the way for institutional and grass-roots developments, keeping the law in closer touch with social and political realities and with the needs of those displaced.

Jurisdiction — Claims for compensation — Procedural default of Respondent State — Relevance — Independent evaluation of facts and legal arguments of Claimant — Claim under Moldovan law — Whether Tribunal having jurisdiction under Moldova–Russian Federation Bilateral Investment Treaty — Whether Tribunal having jurisdiction ratione materiae and ratione temporis — Jurisdiction ratione personae — Whether Tribunal having jurisdiction over claims of foreign investor — Whether Tribunal having jurisdiction over claims of companies incorporated in Moldova — Whether Tribunal having jurisdiction over Respondent State — Whether Tribunal having authority to correct relief sought — Whether Respondent State’s actions violating principle of non–retroactivity under Moldovan law — Whether Respondent State’s actions violating obligations under BIT

State responsibility — Moldova — Department of Privatization — Whether conduct of Department attributable to State — Article 4 of ILC Articles on State Responsibility

Applicable law — Article 24 of SCC Arbitration Rules — Moldova–Russian Federation Bilateral Investment Treaty — Moldovan law — Whether Respondent State’s actions violating Moldovan law — Whether Respondent State’s actions violating its international treaty obligations under BIT

Municipal law — Moldovan law — Claim made under Moldovan law — Article 43 of Foreign Investment Act — Principle of non–retroactivity of legislation — Moldovan authority’s discretion — Whether Claimant accepting risk that compensation by Moldova unsatisfactory — Whether Respondent State’s actions violating Moldovan law

Treaties — Moldova–Russian Federation Bilateral Investment Treaty — Full protection standard — Whether Respondent State’s conduct violating Moldovan law — Whether full protection clause correction of host State’s legislation — Whether Respondent State’s conduct violating full protection standard — Article 2 of BIT

Treaties — Moldova–Russian Federation Bilateral Investment Treaty — Fair and equitable treatment — Whether Respondent State’s conduct violating fair and equitable treatment guarantee — Whether discriminatory — Relevance — Purpose of BIT — Legitimate expectation of foreign investor — Article 3 of BIT

Treaties — Moldova–Russian Federation Bilateral Investment Treaty — Indirect expropriation — Whether applying only to measures affecting totality or substantial part of investment — Whether Respondent’s conduct violating prohibition of indirect compensation without adequate compensation — Article 6 of BIT

Damages — Assessment — Liability for loss — Whether foreign investor partially responsible for signing contract with unlimited Moldovan authority discretion — Whether moral damages appropriate — Interest — Currency

Costs — Costs of the arbitration — Lack of cooperation by Respondent State — Relevance — Parties’ costs

Jurisdiction — Whether a void contract would bar the exercise of ICSID jurisdiction — Matter to be dealt with in the merits — Prima facie existence of the contract — Contract characterizing an investment — Certificate constituting an investment

Jurisdiction — Consent to arbitrate — Entering into a BIT by State as consent to arbitrate — No need for additional consent by State — ICSID Convention, Article 36(2)

Jurisdiction — IBM’s acquisition of shares in IBM Ecuador — Whether constituting investment by IBM in Ecuador — Default in contract indirectly affecting IBM — Whether investment protected by United States–Ecuador BIT, Article I(1) — ICSID Convention, Article 25

Jurisdiction — Exclusive jurisdiction clause under investment contract — Interpretation of terms of BIT — Fork-in-the-road provision — BIT as the fundamental basis of the claim — Domestic courts retaining jurisdiction over investment-unrelated matters

Municipal law — Illegality of the contract under municipal law — Not posing a bar to ICSID jurisdiction — Arbitrability — Primacy of international law

Municipal law — Prescription of rights under domestic law — Matter to be dealt with in the merits — Claims founded on the BIT rather than on contract

Jurisdiction — Consent to arbitrate — Exhaustion of local administrative and judicial remedies — Interpretation of terms of the BIT — BIT, Article VI — ICSID Convention, Article 26

Nationality — Individual investor — ICSID Convention, Article 25(1) and (2)(b) — Laws applicable to determining nationality — Provision for determining nationality under Bilateral Investment Treaty — Application of domestic laws of State whose nationality investor claiming — Competence of Tribunal to apply domestic laws when deciding issues of jurisdiction

Municipal law — Loss of nationality through operation of Italian domestic law — Applicable domestic laws for reacquisition of Italian nationality — Whether Claimant complying with applicable domestic laws — Interpretation of “residence” in applicable domestic laws — Whether Claimant maintaining actual habitual residence in accordance with applicable domestic laws — Whether Claimant satisfying burden of proof

Nationality — Evidence — Whether Tribunal bound by rules of evidence in Italian civil procedure — Whether official documents of State authorities conclusive proof of nationality — ICSID Arbitration Rule 34(1) — Tribunal’s competence to judge admissibility and probative value of evidence

Jurisdiction — Whether tribunal competent to hear claim — Whether claim subject to investor — State dispute settlement — Whether diplomatic protection necessary

Interpretation — NAFTA — Whether claim characterized as investment dispute or dispute under financial services chapter — Dispute settlement procedures

Interpretation — NAFTA — Interpretation of “financial institution” — Whether financial holding companies “financial institutions” — Status of financial groups in Mexican law

Interpretation — NAFTA — Interpretation of “regulatory capital” — Whether debentures issued “regulatory capital” within NAFTA

Municipal law — Law relating to regulation of financial groups in Mexico

Arbitration — North American Free Trade Agreement (NAFTA) Chapter 11 — UNCITRAL arbitration — Investor commencing arbitration proceedings under NAFTA Chapter 11 — Whether Canada violating NAFTA Articles 1102, 1105, 1106 and 1110

Arbitration — NAFTA Chapter 11 — Procedure — UNCITRAL arbitration — Due process — Discovery — Claim of Crown privilege

Treaties — NAFTA — Investment protection — Discrimination — NAFTA Article 1102 — Fair and equitable treatment of investment — Article 1105 — Requirement of transparency — Performance requirements — Article 1106 — Environmental protection — Whether compatible with NAFTA principles

Environment — Hazardous waste — Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989 — NAFTA — Balance between environmental protection and free and open trade

Expropriation — Definition — NAFTA Article 1110 — Conduct tantamount to expropriation — Distinction between expropriation and regulation

State responsibility — Federal States — Responsibility for acts of State and local government — International Law Commission Draft Articles on State Responsibility

Municipal law — Judicial review of NAFTA award in Canadian courts — Canada making application to Federal Court of Canada — Canada seeking to set aside First Partial Award

Damages — Appropriate primary measure of compensation — Scope of recovery — Review of principles concerning assessment of compensation — Appreciation of evidence — Interpretation of applicable law — Quantification of compensation — Value of lost and delayed net income streams — Methodology of quantification — Interest

Costs — Arbitration costs — Costs of legal representation and assistance — Applicable rules — Article 38 of UNCITRAL Arbitration Rules — Article 40(1) and (2) of UNCITRAL Arbitration Rules — Success of parties in principal phases of arbitration — Apportionment — Circumstances of case — International practice — Interest

Interest — On Award on Damages — On Award on Costs — Rate of interest — Currency of account in which award of compensation made — Date from which interest payable

Nationality — Standing — Nationality and permanent residence — Definition of nationals — NAFTA Article 201

Admissibility — Of claims — Time limitation for making claims — Meaning of “making a claim” — NAFTA Article 1117 — Receipt of claim by ICSID Secretary-General — Suspension of period of limitation — “Discouraging” a claim not a factor in suspension of period of limitation

Admissibility — Of claims — Ancillary and additional claims — NAFTA Article 1102 — NAFTA Article 1120(2) — Article 48 of the Additional Facility Arbitration Rules — Omission to rely on claim in notice of arbitration

Admissibility — Of claims — Claims pre-dating NAFTA’s entry into force — Course of action continuing after NAFTA’s entry into force

Expropriation — NAFTA Article 1110 — Expropriation through taxation — Tax rebates for export of cigarettes — “Creeping” expropriation — Governmental regulatory activities — Expropriation and regulation

Municipal law — Denial of justice — Access to domestic courts — NAFTA Article 1110

Nationality — National treatment — Non-discrimination — NAFTA Article 1102 — Like circumstances — Less favourable treatment of foreign investors

Interpretation — Interpretation and correction of award — Interpretation and supplementary decision

Municipal law — Incorporation of bilateral investment treaty and ICSID Convention into municipal law — Relationship between unincorporated international law rights and a valid and binding contractual choice of forum clause

Interpretation — ICSID Convention and bilateral investment treaty — Interpretation of “investment” — Strict construction — Whether contract constituted an investment — Money must be laid out and property acquired to constitute an investment

Jurisdiction — Waiver — Whether prior conduct by Claimant demonstrated waiver of any rights to initiate ICSID arbitration — Filing of substantive counter-claim in domestic arbitration

Jurisdiction — Estoppel by conduct — Issue estoppel — Whether prior conduct estopped Claimant from utilizing any rights to initiate ICSID arbitration — Whether foreign proceedings accepting binding validity of contractual forum selection clause gave rise to issue estoppel or res judicata

Jurisdiction — Equity — Whether Claimant approached ICSID with clean hands — Concealment of material facts

Procedure — Restraint of party to initiate or continue with ICSID arbitration

Procedure — Stay of arbitration proceedings pending determination of appeal

Arbitration — Arbitration tribunal — Tribunal constituted under North American Free Trade Agreement (NAFTA) Chapter 11 — UNCITRAL Arbitration Rules — Arbitral awards in S. D. Myers Inc. v. Government of Canada — First Partial Award on Liability — Second Partial Award on Damages — Final Award on Costs — Canada liable for breach of NAFTA obligations — Respondent awarded damages and costs — Canada applying to set aside NAFTA Chapter 11 arbitration awards

Municipal law — Application for judicial review of NAFTA Chapter 11 arbitration awards — Court’s jurisdiction for judicial review — Article 34 of Commercial Arbitration Code 1985 — Grounds for judicial review — Whether arbitral awards dealing with dispute not contemplated by NAFTA Chapter 11 — Whether arbitral awards exceeding scope of arbitration agreement in Part B of Chapter 11 — Whether arbitral awards contravening public policy of Canada — Principle of non-judicial intervention in an arbitral award within jurisdiction of Tribunal

Treaties — NAFTA — Chapter 11 — Interpretation and application — Objectives of NAFTA — Purposive interpretation — Article 2.01 of NAFTA — Vienna Convention on the Law of Treaties, 1969, Article 31 — Principles of international law — Application of NAFTA — NAFTA Chapter 11 and Chapter 12 rights and obligations — Whether mutually exclusive

Provisional measures — Whether objection to jurisdiction precludes recommendation of provisional measures — Registration by Secretary-General under Article 36 of icsid Convention — Whether registration “unless dispute manifestly outside jurisdiction” same as prima facie jurisdiction — Extent of jurisdiction to grant provisional measures

Provisional measures — Whether binding — Article 41 of icj Statute — Authority of icj’s decision in LaGrand — icsid Convention, Article 47 — Arbitration Rules, Rule 39

Provisional measures — To preserve rights of parties — No evidence of existing right — Whether “hypothetical” right may be protected by provisional measures

Municipal law — Provisional measure of Tribunal said to interfere with ministerial decision — Municipal law not binding on international tribunal — Exercise of discretion

Expropriation — Provisional measures to preserve property claim — Claim “generic” and unrelated to specific assets — Whether provisional measures necessary

Provisional measures — State of tension between parties — Duty of Tribunal proprio motu to ensure no action taken which may prejudice rights of the other party or aggravate or extend dispute

Costs — Provisional measure for security for costs — Alleged probability of unsuccessful claim — Claimant alleged to be without means — Whether provisional measure required to protect Respondent’s interests — Failure of Convention and Rules to provide for security for costs

Jurisdiction — Objections to jurisdiction — Bilateral investment treaty — Exceptions to the nationality requirement — icsid Convention, Article 25(2)(b) — Whether company incorporated in one State Party and owned by nationals of another State Party is a “national” of the former — Existence of prima facie “legal dispute” for the purpose of determining jurisdiction

Arbitration — Bilateral investment treaty — Alleged violations of bit by Respondent through its State enterprise

Foreign investment — Failure to provide “fair and equitable treatment” and “full protection and security” to an investment — UK–Egypt Bilateral Investment Treaty, Article 2(2) — Failure to prevent seizure of an investment — Failure to impose substantial sanctions for seizure

Expropriation — Failure to provide prompt, adequate and effective compensation — UK–Egypt Bilateral Investment Treaty, Article 5

Municipal law — Time bar — Whether claims time-barred by domestic statute of limitation — Domestic statutes of limitation not binding on international tribunal

Damages — Determination of damages — Prompt, adequate and effective compensation — Compensation amounting to the market value of an investment — UK–Egypt Bilateral Investment Treaty, Article 5

Annulment — Time limit for request for annulment — icsid Convention, Article 52 — Raising new arguments related to a ground of annulment invoked within the time limit fixed in the icsid Convention

Annulment — Grounds for — Manifest failure to apply applicable law — icsid Convention, Article 42(1) — Subject matter of commercial agreements as opposed to subject matter brought before icsid arbitration — Role of international law in the context of Article 42(1) — Relationship between international law and domestic law

Annulment — Grounds for — Manifest excess of power by arbitral tribunal — Sufficiency of evidence — Relationship between domestic arbitration and arbitration under the icsid Convention — Compensation under domestic arbitration to be taken into account when awarding damages under the icsid Convention — Criteria for compensation under UK–Egypt Bilateral Investment Treaty, Article 5

Compensation — Interest — How calculated — Compound interest — Exercise of discretion

nafta — Chapter 11 — Claim pursuant to Additional Facility Rules — Place of arbitration — Relevant factors — Joinder of jurisdictional objections to merits — Extent of discovery — Confidentiality

Municipal law — Confidentiality of proceedings — Application of national freedom of information legislation to pleadings, minutes of meetings, orders of Tribunal — Extent and duration of parties’ obligation of confidentiality absent statutory obligations of disclosure — nafta, Article 1126, Annex 1137.4 — Arbitration (Additional Facility) Rules, Articles 14, 24, 38, 44

State responsibility — nafta, Articles 1102, 1105, 1110 — Application to acts done before nafta’s entry into force — National court decisions after entry into force — Retrospective effect

Jurisdiction — Proceedings brought under nafta, Article 1116(1) — Whether brought “on behalf of an enterprise” — Failure to rely on Article 1117(1)

Jurisdiction — Termination of an investment — Lapse of contractual option — Bank’s foreclosure on mortgage over investment property — Subsisting claims under national law — Whether an “investment” — Relevance of ownership of national law proprietary rights — nafta, Article 1139

Admissibility — Claim brought more than three years after incidents causing damage — Three-year time-limit — Application — nafta, Article 1116(2)

nafta — Free Trade Commission interpretation — Whether binding on Chapter 11 Tribunal — Whether “interpretation” or “amendment” — Scope of ftc interpretation — Effect on pending proceedings

State responsibility — nafta, Article 1105(1) — Denial of justice — Whether “new law” applied retrospectively — Procedural decisions — Scope and standard of nafta review

State responsibility — nafta, Article 1105(1) — “Full protection and security” — Statutory immunity of State agency in respect of intentional torts — Tortious interference with contractual relations — Jury finding implying lack of legitimate regulatory purpose — Whether immunity in breach of Article 1105(1)

State responsibility — nafta, Article 1105(1) — “Full protection and security” — Non-application of trade practices law to regulatory authority

nafta — Chapter 11 — Award of costs and expenses — Extent of Tribunal’s discretion

Municipal law — Choice between two laws — International Commercial Arbitration Act — Exclusive application to international commercial arbitration — Relationship between Claimant and Respondent not regulatory in nature but concerned treatment of investors — Grounds for annulment

Applicable law — nafta Chapter 11 arbitration restricted to claims for breach of Chapter 11 and Chapter 15 obligations — Interpretation of Article 1105 — Minimum standard of protection — Tribunal misstated applicable law to include Chapter 18 obligation of transparency — Obligation to ensure transparent and predictable framework for investment — Matter beyond scope of submission to arbitration

Expropriation — nafta Article 1110 — Measures tantamount to expropriation — State permitted or tolerated conduct of municipality amounting to unfair and inequitable treatment in breach of Article 1105 — Analysis infected by erroneous application of principle of transparency — Matter beyond scope of submission to arbitration

Expropriation — nafta Article 1110 — Implementation of Ecological Decree — Effect of barring operation of landfill — Indirect expropriation — Alternative and independent finding of expropriation

Damages — Excessive damage claim — No deliberate attempt to deceive Tribunal — Arguable basis for claim — No evidence of fraud — Aggressive claim for damages — No basis for annulment

Interest — Inclusion of interest in calculation of damages — Interest flows only from date of proper finding of expropriation — Prior interest and compounding effects excluded from award

Procedure — Consent to arbitration — nafta Article 1121 — Conditions precedent to submission of claim — Waiver of right to initiate or continue parallel proceedings in municipal court — Waiver implies unilateral abdication of rights — Waiver must be clear, explicit and categorical — nafta Articles 1121(3) and 1137(1)(b) — Submission of waiver in conjunction with icsid Additional Facility Rules Article 2 notice — Nature and effectiveness of waiver — Observance of formalities

Municipal law — Reliance on Mexican legislation in domestic proceedings — No express invocation of nafta breaches — Domestic proceedings fall within Article 1121 prohibition — Measures complained of in both proceedings have same factual and legal basis — Claim for breach of contract in municipal law may coexist with claim based on nafta Article 1105

Jurisdiction — Based on consent — Fulfilment of conditions precedent necessary for jurisdiction — Procedural conditions — Failure to comply with nafta Article 1121 requirements

Interpretation — Terms of agreement providing for binding arbitration — Requirement of joint submission to arbitration contrary to objective of bilateral investment treaty — Construction incompatible with international rules for interpretation of this type of agreement — Concept of investment interpreted broadly — Slovak Republic has not made declaration limiting scope of icsid jurisdiction

Jurisdiction — Slovak Republic has not made declaration limiting scope of icsid jurisdiction — Consent of parties to icsid jurisdiction creates presumption that they considered transaction to be investment covered by icsid Convention

Municipal law — Question of consent to icsid jurisdiction not answered by reference to national law but by international law as expressed in Article 25(1) of icsid Convention

Parties — State parties distinguished from private parties — Determination of real party in interest — Effect of assignment of interest

Procedure — Effect of assignments on real party in interest — Determination of standing made by reference to date proceedings instituted — Absence of beneficial ownership by claimant or transfer of risk does not affect standing

Treaties — Entry into force of bilateral investment treaty — Provision for date of entry into force — Requirement of notice of completion of constitutional formalities — Provisions interpreted in light of principle of effectiveness — Effect of notice of entry into force published in Official Gazette — Effect of unilateral declaration to assume contractual obligation

Interpretation — Article 25(1) of the icsid Convention — Characterization of a legal dispute — Conflict of rights vs. conflict of interests — Question of legal rights and obligations in connection with investment — Characterization of “investment” — Loans and promissory notes as investment — Purchase and assignment of promissory notes foreseen

Treaties — Bilateral investment treaty — Investment broadly defined under treaty — Standard approach of bilateral and multilateral investment treaties — Practice of State Party consistent in relation to its other bilateral and multilateral investment treaties — State Party has not exercised right under Article 25(1) of the icsid Convention to exclude any class of investment

Municipal law — Promissory notes issued in compliance with Commercial Code and Law on Public Credit — Payments authorized at highest level of government — Budgetary appropriation by Congress to finance payments

Jurisdiction — icsid jurisdiction specifically provided for in bilateral investment treaty — Sources of applicable law including internal law, the Investment Agreement, general principles of international law

Applicable law — Relation between concession contract, bilateral investment treaty and icsid Convention — Dispute with provincial authorities relating to interpretation and application of contract to be submitted to administrative courts

Jurisdiction — Jurisdiction issue joined to merits — Failure to designate or consent to application of icsid Convention to province under Article 25(1) and 25(3) does not deprive Tribunal of jurisdiction — Local forum clause in concession contract does not divest Tribunal of jurisdiction for claims against State

State responsibility — Attribution of responsibility for actions of political subdivisions — Responsibility not limited by federal or decentralized character of State — No factual basis for attribution — State’s obligation under bilateral investment treaty to pursue in good faith and with reasonable efforts the resolution of the dispute — State’s constructive role in renegotiation process

Municipal law — Impossibility of separating claims for breaches of contract from bilateral investment treaty violation without prior resort to administrative courts — Claimant required under contract to assert its rights in proceedings before administrative courts prior to invoking icsid procedure — Claimant not precluded from asserting its rights in administrative courts — No evidence that courts lacked independence or fairness or would have denied Claimant’s rights procedurally or substantively — No principle of exhaustion of remedies

Procedure — Exhaustion of remedies — Requirement incompatible with Article 8 of bilateral investment treaty and Article 26 of icsid Convention — Resort to administrative courts required under contract for purposes of interpretation and application