Environmental Engineering Reference
In-Depth Information
of the investment.
614
Conferring to domestic law is not
a qualification of an investment as such, but a
on the question of
legality
'
'
(
...
) condition of its validity under
'
615
Similarly, the Salini ICSID tribunal ruled, as it pointed out that
domestic law.
'
is not part of the notion of investment.
616
Thus, the
question of violation of national law is an issue related to the merit of the decision
and not an issue of ICSID jurisdiction.
617
Other tribunals decided differently on this
issue. Some pointed out that such a case concerns the legitimacy of the investment, but
not the jurisdiction of the tribunal.
618
Again others decided if the investment is against
the law of the state, there is no consent of the state to participate in an ICSID
proceeding, and thus no jurisdiction.
619
Additionally, it is also highly disputed whether
a violation of host state law would lead to a denial of BIT investment protection.
620
To
exclude every investment from BIT protection which is does not completely conform
in a legal sense could result in an unwanted erosion of the BIT application.
621
The requirement of
'
accordance with the law
'
is also beneficial because it
helps to “limit” the effects on sovereignty.
622
If the investment is in accordance
with the local laws, there is no infringement of state sovereignty. Nevertheless,
problems remain related to the correctives of host state law violation. First, the good
faith of the investor is hard to prove and the severity of the violation is irrelevant.
623
Second, the state can pass non-discriminatory laws as
in accordance with the law
'
'
prior to
the investment and use them later on to influence the investment.
624
Third, the fact
that the deliberate toleration is a subjective approach can cause problems as the pure
impartial enforcement of a law might not be covered.
625
Finally, the issue of a
violation while initiating an investment is difficult to assess, as there is no agree-
ment when an investment starts.
626
There is no doubt that a state cannot invoke its own breach of the law to avoid
BIT jurisdiction.
627
There is a legitimate expectation of the investor because of the
emergency reserve
'
'
614
ICSID [2010] ARB/07/20—Award, 37 para 114.
615
ICSID [2010] ARB/07/23, 53 para 140.
616
ICSID [2001] ARB/00/4, 609 (620-621) para 46.
617
ICSID [2007] ARB/03/25—Award—Dissenting Opinion of Bernardo M. Cremades, 22 para
38; Borris and Hennecke (
2008
), 49 (55); Tietje (
2010
), 5 (16-17).
618
ICSID [2005] ARB/03/29, 30-31 paras 109-114; ICSID [2001] ARB/00/4, 609 (620-621) para
46.
619
ICSID [2006] ARB/03/26—Award, 50-52 paras 168-173 and 100-101 para 332
620
Tietje (
2010
), 5 (10).
621
Restraining investment could be against the will of parties (according to the BIT), in: Hobe and
M¨ ller (
2009
), 65 (68); Borris and Hennecke (
2008
), 49 (56).
622
Maier (
2010
), 95 (104).
623
Borris and Hennecke (
2008
), 49 (56-57).
624
Borris and Hennecke (
2008
), 49 (57).
625
Borris and Hennecke (
2008
), 49 (57-58).
626
Borris and Hennecke (
2008
), 49 (58).
627
ICSID [2007] ARB/05/18, 49-50 para 182.
