Environmental Engineering Reference
In-Depth Information
Furthermore, some ICSID tribunals dealt with the issue of legal dispute
according to Art. 25(1) of the ICSID Convention. One tribunal mentioned that a
'
) legal dispute, in the ordinary meaning of the term, is a disagreement about
legal rights or obligations.
(
...
301 In another decision, an ICSID tribunal highlighted
that a legal dispute exists, if a state measure affects the legal rights of the investor
and if the BIT offers legal protection. 302
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3.5.2.1.3 The Meaning of “Directly”
The first drafts of the ICSID Convention only included jurisdiction for all legal
disputes
303
However, this definition was subject to a lot of criticism and the term “directly”
was added. 304 This change was done without providing any definition of the word
direct. 305 Directness is an objective criterion of Art. 25(1) ICSID Convention,
which means it cannot be differently agreed upon by the parties. 306 One ICSID
tribunal mentioned that:
(
(
...
) arising out of or in connection with any investment (
...
).
'
'
...
) [I]t is apparent that the term “directly” relates (
...
) (Article 25(1) ICSID Convention)
) to the “dispute” and not to the “investment”. It follows that jurisdiction can exist even
in respect of investments that are not direct, so long as the dispute arises directly from such
transactions. 307
Other tribunals support this decision. 308 Due to the complicated task to separate
between direct or indirect claims, a case by case analysis is necessary. 309 Overall,
requirements of legal dispute and directness are subject to a case by case evaluation.
Not fulfilling these criteria would result in a decline of jurisdiction and lead to
unnecessary costs.
(
...
3.5.2.2 Unity of Investment
The Desertec Concept encompasses several contracts, e.g. concession contracts,
construction contracts, and state contracts. Therewith, the question arises if each
301
ICSID [2006] ARB/03/17, 18-19 para 34.
302
ICSID [2006] ARB/03/9, 24 para 67.
303
ICSID ( 1970 ) vol I, 116.
304
ICSID (1968) vol II(2), 700 and 826.
305
Schreuer ( 2009 ), 106 para 83.
306
Schreuer ( 2009 ), 106-107 para 85.
307 ICSID [1997] ARB/96/3, 1378 (1384) para 24.
308 Ambivalent concerning the requirement, in: ICSID [2006] ARB/03/16—Award, 62-63 para
331; ICSID [2003] ARB/01/8, 788 (796) para 52; ICSID [1999] ARB/97/4—Decision, 251 (275)
paras 71 and 72.
309 Further indicators for a possible distinction, in: Schreuer ( 2009 ), 112 para 104.
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