Arbitration - Investing into North African Solar Power - page 98

2.4.2.1 TNCs as Subjects of International Law

There are different views on the international law subjectivity of TNCs. First of all,
there are some authors who completely oppose this idea. Contracts between a TNC
and a state are not subject

to international law, according to the dualistic

approach. 373
Nevertheless, there are also other authors arguing in favor of TNCs being subjects
of international law. The first one is the international agreement doctrine. Their point
of view starts with the idea of equating TNC/state contracts with international
agreements under certain circumstances (e.g. completion of the contract by the
highest state organs). 374 In these cases, the TNC gains a

375
Especially if the state contract includes an internationalization or stabilization
clause, some arbitration courts accepted that the contract is partially an international
contract. 376 It must be noted that this doctrine is not customary international law. 377
In the case of investment protection (ICSID Convention), authors claim that TNCs
have a partial legal subjectivity 378 According to the ECT companies have the right to
file claims under ICSID jurisdiction because all member states have given their
unconditional consent. 379 Art. 26(3) of the ECT includes consent to ICSID arbitra-
tion, which makes it comparable to the ECHR. Therefore, the investor can file a
claim without the consent of the state. All this is connected to the derived legal
subjectivity of international law established for international organizations. 380
Yet, there are some arguments against the point of view that TNC are legal
subjects of international law. First of all, legal personality to international law does
not depend on state recognition, as the founding document of the international
organization establishes legal subjectivity of an international organization. 381 Rec-
ognition can also be revoked by a state, without violating the pacta sunt servanda
doctrine, but leading to a negation of the partial legal personality. 382 There are no
international

' functional statehood. '

agreement doctrine. 383 customs concerning the international

373 Epping in Ipsen ( 2011 ), § 9, para 8 et seq.; Doehring ( 2004 ), para 397; Weh ( 2008 ), 158.
374 Schobener et al. ( 2010 ), 61, Kap. 1 § 5 paras 199 and 246; cf Krajewski ( 2009 ), 182; cf
Schweisfurth ( 2006 ), 51 para 166; Muchlinski ( 2009 ), 341 (342); Including further references,
in: Weh ( 2008 ), 158-159.
375 Weh ( 2008 ), 159; cf Verdross ( 1958 ), 635 (639 et seq.).
376

If there is a clear expression that both parties want to “denationalize” the contract, in: Herdegen
( 2003 ), 13 (19); Krajewski ( 2009 ), 183.
377

Schobener et al. ( 2010 ), 62, Kap. 1 § 5 para 199; Dahm et al. ( 2002 ), 257; Gruss ( 1979 ),
782 (785); Tribunal accepted that a private can be partially subject of international law but is
genuine subject, in: Seidl-Hohenveldern ( 1977 ), 502 (502).
378 Sch

€ obener et al. ( 2010 ), 60, Kap. 1 §5 para 197; Sch € obener and Markert ( 2006 ), 65 (69).

379 Tietje ( 2005 ), 47 (62); Tietje ( 2003 ), 5 (16).
380 Epping in Ipsen ( 2011 ), § 8 para 18.
381 Weh ( 2008 ), 159.
382 Epping in Ipsen ( 2011 ), § 8 para 18; Weh ( 2008 ), 159-160.
383 Liemen ( 1980 ), 150 et seq.; Weh ( 2008 ), 160.