Environmental Engineering Reference
In-Depth Information
of investment protection.
71
For example, BITs address the question of the definition
of investment and thus securing investor protection rights.
72
Interestingly, the
wording of most BITs has not changed since their appearance 50 years ago.
73
Through BITs, the state deliberately renounces certain parts of its sovereignty to
be able to attract foreign investments.
74
Consequently, the BIT binds both parties.
75
The fact that an individual can sue the state because of the ICSID Convention
and the BIT is almost unique. Therefore, the ICSID and BITs go beyond the
classical case of international law, where states sue each other.
76
This means that
the ICSID Convention and BITs are intertwined with international law.
77
Although
some mention that a BIT favors investors, there are also a lot of examples of where
the state has prevailed.
78
2.1.2.2.4 The Relationship Between ICSID Convention and General
International Law
Art. 27(1) of the ICSID Convention expressively prohibits the home state of the
investors to use diplomatic protection if the host state has agreed to ICSID juris-
diction. Vice versa, section V No. 33 of the Report of the Executive Directors of the
International Bank for Reconstruction and Development on the Convention on the
Settlement of Investment Disputes between States and Nationals of Other States
(Report of the Executive Directors) stipulates that the investor cannot ask his home
country to exercise diplomatic protection. No. 32 Report of the Executive Directors
offers an interpretation guide of Art. 27 of the ICSID Convention in section V. It
points out that if both parties have not agreed to other remedies, the intention of the
parties to have recourse arbitration excludes any other remedy.
The only exception to this rule is when a contracting state does not comply with
an ICSID award (Art. 27(1) of the ICSID Convention). One ICSID tribunal recently
concluded that
...
'
(
) (t)he customary international law minimum standard of
71
Clapham (
2009
), 437 (437); Harten and Loughlin (
2006
), 121 (123); Metje (
2008
), 76-77;
Semler (
2003
), 97 (98); Zampetti and Sauv
´
(
2007
), 211 (214-215); cf Lowenfeld (
2008
), 554-
555; cf Dolzer and Schreuer (
2008
), 21; Krajewski (
2009
), 173; cf Schobener et al. (
2010
),
223, Kap. 4
§
13 para 7; cf Vannieuwenhuyse (
2009
), 115 (127).
72
Zampetti and Sauv
´
(
2007
), 211 (216).
73
Karl (
2003
), 37 (38).
74
Dolzer and Schreuer (
2008
), 23.
75
Desbordes and Vicard (
2009
), 372 (375).
76
Alexandrov (
2009
), 322 (322); Harten and Loughlin (
2006
), 121 (129).
77
ICSID [2009] ARB/06/5—Award, 30-31 para 78; Nevertheless customary international law is
still important in cases of investment arbitration, in: Maier (
2010
), 95 (104).
78
Maier (
2010
), 95 (101-102); He also points out that a too strict investor protection would be
contrary to a functional international investment regime, in: Maier (
2010
), 95 (106); State
sovereignty is not protected enough by ICSID in: Mortenson (
2010
), 257 (312); ICSID favors
investor, in: Rosenberg (
2010
), 8 (9).
