Environmental Engineering Reference
In-Depth Information
performance of governmental authorities.
628
Hence, the principle of estoppel is
applied by the ICSID tribunals. Estoppel in international law means that a state is
bound to the raised expectations due to its behavior, and the opposite party can rely
on it according to good faith.
629
Overall evaluation of this requirement is quite difficult. This is also due to the
fact that other international conventions also include this prerequisite concerning
investment. The most prominent example is Art. 12(d) of the MIGA Convention.
630
Since the MIGA is a very useful tool to secure investments, the investor should
make a considerable effort to meet all requirements. There can be no doubt that the
violation of national law does not matter. Nevertheless, the issue does not need to be
determined, since a violation of national law causes problems for the investor.
Concerning the Desertec Concept, it is important that there is a previous assessment
of the national law. In Art. 1(1) of the G/M-BIT it is stipulated that the investment
must be in accordance with the law of the contracting state. Despite the fact that this
supports social acceptance of the project, it prevents serious mistakes. It would be
beneficial to include local lawyers or legal professionals to secure that there is
enough knowledge concerning the local laws. If an investor violates host state law,
there is a high risk of it not being included under the ICSID protection umbrella.
3.7.7 Assets Invested
Bona fide
The Salini decision did not include this requirement. In 2009, another tribunal
introduced it. The main idea is that ICSID jurisdiction cannot apply to investments
not made in good faith.
631
International investment arbitration cannot take place if
this would be against general principles of international (e.g. good faith), whereby
good faith means
...
) to deal honestly and fairly with each other, to represent their
motives and purposes truthfully, and to refrain from taking unfair advantage
(
'
(
632
Concerning good faith there is a dual approach, as it is said that a violation
of good faith automatically violates national and international law.
633
However,
another tribunal highlighted that Art. 25(1) of the ICSID Convention does not
...
).
'
628
ICSID [2007] ARB/05/18, 52 para 191; ICSID [1992] ARB/84/3—Award [1992] ICSID
Review, 328 (352) paras 82-83; Verdross and Simma (
2010
), 801-803 paras 393-394 para 615;
cf ICJ [1998] Land and Maritime Boundary between Cameroon and Nigeria—Preliminary
Objects, 275 (303) para 57.
629
Verdross and Simma (
2010
), 801-803 paras 393-394 para 615; cf ICJ [1998] Land and
Maritime Boundary between Cameroon and Nigeria—Preliminary Objects, 275 (303) para 57.
630
Commentary on Convention - Establishing the Multilateral Investment Guarantee Agency
(
2010
), para 21.
631
ICSID [2009] ARB/06/5—Award, 42 para 106.
632
ICSID [2009] ARB/06/5—Award, 42 paras 106-107.
633
ICSID [2009] ARB/06/5—Award, 44 para 112; ICSID [2008] ARB/03/24—Award, 42 paras
143-144.
