Environmental Engineering Reference
In-Depth Information
2.3.2.2 Treaty and Contract Claims
The main idea of the ICSID Convention is that contracts
) create rights in a
domestic legal order whereas treaties create separate rights in the international legal
order.
(
...
'
267
A breach of a contract law is not automatically a breach of international
law.
268
The distinction between contract and treaty claims also relates to the
distinction between mere commercial acts and state interference (e.g. in the case
of a state involvement because of public policy).
269
There is also a definition for
both terms, whereby:
[T]reaty claims are those that are based on an international agreement for breaches of
international obligations (
'
...
) contained in BITs (
...
) and (
...
) contract claims are (
...
)
based on rights that arise under (e.g.) concession agreement(s).
270
Therefore, a difference between a breach of contractual obligations and a breach
of the BIT exists.
271
Treaty and contract claims are different from each other, even
if they arise out of the same fact.
272
This does not rule out the possibility that a
breach of contract might also be a breach of the BIT.
273
The tribunals frequently check the “fundamental basis of the claim”.
274
How-
ever, there is no consistency concerning the scope of assessment, as some tribunals
just mention that their case fulfills all requirements.
275
It is not sufficient that one
party alleges that there is treaty claim. ICSID tribunals concluded that there are two
major concerns to be addressed, which are:
(
) [T]o ensure that courts and tribunals are not flooded with claims which have no chance
of success, or may even be of an abusive nature; and equally to ensure that, in considering
issues of jurisdiction, courts and tribunals do not go into the merits of cases without
sufficient prior debate.
276
...
) has considered whether the facts as alleged by the
Claimant in this case, if established, are capable of coming within those provisions
of the BIT which have been invoked (
Hence, the tribunal
(
...
'
277
The ICJ decided the same question in
a comparable. It pointed out that it cannot limit itself by the mere party statement
...
).
'
267
Shookmann (
2010
), 361 (372); cf ICSID [2002] ARB/97/3—Annulment, 89 (128) para 96.
268
Herdegen (
2003
), 13 (17), cf ICSID [2011] ARB/07/17—Award, 40 para 177.
269
ICSID [2009] ARB/07/12, 34-35 paras 105-108; Further reference concerning commercial
and investment contract, in: Nathan (
1995
), 27 (31).
270
Rosenberg (
2010
), 8 (10).
271
ICSID [2002] ARB/97/3—Annulment, 89 (128) para 96; cf Hauschka (
2005
), 1550 (1555).
272
Fiebiger (
2010
), 269 (269); ICSID [2006] ARB/04/13, 25 para 79; ICSID [2005] ARB/03/29,
40 para 148.
273
Fiebiger (
2010
), 269 (269); ICSID [2006] ARB/04/13, 22 para 64, 25 para 80, 84 para 258.
274
ICSID [2002] ARB/97/3—Annulment, 89 (131) paras 100-101.
275
ICSID [2003] ARB/01/13, 307 (351-352) para 145.
276
ICSID [2005] ARB/03/3, 83 para 254.
277
ICSID [2005] ARB/03/3, 83 para 254.
