Document Type : Article

Authors

1 PhD in International Law, Faculty of Law and Political Science, Islamic Azad University, Science and Research Branch, Tehran, Iran

2 Associate Professor, Department of Public International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran

3 Associate Professor, Department of Law and Political Science, Islamic Azad University, Science and Research Branch, Tehran, Iran

Abstract

International Investment Treaties and Investment Contracts Are Two Different Legal instruments to encourage and promote foreign investment with the possibility of coexistence and the simultaneous governance of them. However, under international investment law, coexistence between these two instruments has created major problems. Indeed, due to the broadness of standards of treatment of investors, often referred to as “fair and equitable treatment”, it is sometimes said that contractual breaches is seen as a breach of a broader treaty standards. So, regarding to the differences of dispute settlement clauses embodied in contract and treaty investment and applicability of each clauses, there will always be a possibility of conflict of jurisdiction between the authorities concerned. This article explores the circumstances under which investment treaty arbitration will be competent to hear claims arising out of breach of an investment contracts. In addition, this article analyzes ICSID arbitral jurisprudence on the basis of restrictive and/or extensive interpretation of dispute settlements clauses embodied in contract and an investment treaty.

Keywords

  1.  English

    1. A) Books
    2. Cremades, Bernardo M. & Cairns, David J. A. )2004(, “Contract and Treaty Claims and Choice of Forum in Foreign Investment Disputes”, in: Horn, Norbert (ed.), “Arbitration Foreign Investment Disputes”,
    3. Douglas, Zachary (2009), The International Law of Investment Claims, Cambridge University Press.
    4. Sir Robert Jennings & Sir Arthur Watts (1996), Oppenheim’s International Law, Ninth Ed., Vol.1.
    5. Wehland, Hanno (2013), “The Coordination of Multiple Proceedings in Investment Treaty Arbitration”, Oxford University Press.

     

    1. B) Articles
    2. Arato, Julian )2016), “The Logic of Contract in the World of Investment Treaties", William & Mary Law Review, Vol. 58, No. 2, pp. 351-417.
    3. Cuniberti, Gilles )2006), "Parallel Litigation and Foreign Investment Dispute Settlement", ICSID Review Foreign Investment Law Journal, Vol. 21, pp.1-48.
    4. Crawford, James (2007(,"Treaty and Contract in Investment Arbitration", The 22nd Freshfields Lectures on International Arbitration, pp. 1-22.
    5. Demirkol, Berk (2018),Non-treaty Claims in Investment Treaty Arbitration”,Leiden Journal of International Law, Vol.31, No.1, pp.59-91.
    6. Dias Simoes, Fernando (2017(, "UNCITRAL’s Work on Concurrent Proceedings in Investment Arbitration: Overcoming the ‘Treaty/Contract Claims’ Gap", in Muruga Ramaswamy and João Ribeiro (eds.)"Harmonising Trade Law to Enable Private Sector Regional Development, UNCITRAL Regional Centre for Asia and the Pacific", New Zealand Association for Comparative Law, pp. 59-80.
    7. Franck, Susan )2009(, Development and Outcomes of Investment Treaty Arbitration”, Harvard International Law Journal, Vol. 50, Issue 2, pp. 435-489.
    8. Schreuer, Christoph (2005),, “Investment Treaty Arbitration and Jurisdiction over Contract Claims, The Vivendi I Case Considered, in International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law”, Todd Weiler (ed.), pp. 281-300.
    9. Shany, Yuval (2005(, Contract Claims V. Treaty Claims: Mapping Conflicts between ICSID Decisions on Multi-Sourced Investment Claims”, American Journal of International Law, Vol. 99, No. 4, pp. 835-851.
    10. Stanimir A., Alexandrov )2010(, Breach of Treaty Claims and Breach of Contract Claims: Is It Still Unknown Territory? in Yannaca-Small Katia (ed.),” Arbitration under International Investment Agreements: A Guide to the Key Issues”, Oxford University Press, New York, pp. 323-350.
    11. Walde, Thomas )2005),Umbrella Clause in Investment Arbitration”, The Journal of World Investment & Trade, Vol. 6, No. 183, pp. 183-236.

     

    1. C) Documents
    2. Convention on the Settlement of Investment Disputes between States and Nationals of Other States - International Centre for Settlement of Investment Disputes (1965).
    3. Vienna Convention on the Law of Treaties (1969).

     

    1. D) Cases
    2. CMS Gas Transmission Company v. The Republic of Argentina ICSID Case No. ARB/01/8, Decision of the Tribunal on objections to on jurisdiction (17 July 2003).
    3. Compañiá de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic ICSID Case No. ARB/97/3, Award (21 November 2001).
    4. Compañía de Aguas del Aconquija S.A and Vivendi Universal v. the Argentine Republic ICSID Case No. ARB/97/3, Decision on Annulment (2002).
    5. Noble Ventures, Inc. v. Romania, ICSID Case No. ARB/01/11, Award (12 October 2005).
    6. Phillips Petroleum Company Iran v. Islamic Republic of Iran, Iran -United States Claims Tribunals Award No.425-39-2, The Hague (29 June 1989).
    7. SGS Société Générale de Surveillance S.A. v. Republic of Philippines ICSID Case No. ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction (29 January 2004).
    8. SGS Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan ICSID Case No. ARB/01/13, Decision of the Tribunal on Objections to Jurisdiction (August 6, 2003).
    9. Salini Costruttori S.p.A and Italstrade S.p.A.v.Kingdom of Morocco ICSID Case No. ARB/00/4, Decision on Jurisdiction (23 July 2001).
    10. Sothern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt ICSID Case No. ARB/84.3), Award on the merits (May 20,1992),3 ICSID Reports189 (1995).

     

    References in Persian

    1. A) Books
    2. Piran, Hossein (2010), The Law of International Investment, Tehran: Ganje Danesh (In Persian).
    3. Zamani ,Seyed Ghasem & Hasibi , Behazin (2019), The Principles of Investment Law, The SD Institute of Law, Research and Study (In Persian).

     

    1. B) Articles
    2. Gholami, Afife & Habibzadeh,Tavakol (2016), “Foreign Investment Contracts and Scope of Host State Commitments Arising From Treaty”, Public Law Research, Vol. 18, Issue 51, pp. 81-109, DOI (10.22054/qjpl.2016.5424) (In Persian).
    3. Zamani ,Seyyed Ghasem  & Shiralizadeh Abolfazl (2019), “The Principles and Procedure of Interpretation of Investment Treaties by Arbitral Tribunals and Priority of International Law over Domestic Law”, The Judiciary Law Journal , Vol. 83, Issue 105, pp. 111-136, DOI (10.22106/JLJ.2019.35489) (In Persian).