Abstract
Concerns about inconsistency in the application of standards in arbitral awards are strongly present in investment treaty arbitration. In particular, tribunals can regularly exercise a varying scope of jurisdiction when they determine the legality requirement that demands foreign investments to be made in accordance with the law of the host state.In this paper, the author seeks to analyze the decision rendered by the tribunal in Bear Creek v. Peru, in which the Canadian mining company alleged that the Peruvian State breach, inter alia, expropriation protections under the Canada-Peru Free Trade Agreement in relation to its investment in the silver mining project of Santa Ana. In order to achieve this aim, in the first chapter, he addresses three key issues regarding the tribunal’s jurisdiction, the rights on which the company based its claim and the arguably prerequisite of legality or good faith for the tribunal’s exercise of jurisdiction. In the second chapter, he analyzes the validity of the tribunal’s interpretation on the legality requirement for investment as an implicit element in the relevant treaty to determine the tribunal’s jurisdiction.
Highlights
This paper is divided into two chapters
The first chapter is a case note on the key jurisdictional issues related to the legality of the investment and the interpretation principles used to solve these matters derived from the award of International Centre for Settlement of Investment Disputes (ICSID) Case No ARB/14/21 between the claimant, Canadian company Bear Creek Mining Corporation (“BC”), and the respondent, Republic of Peru
There is a strong criticism of the investment arbitration system due to the lack of consistency in arbitral tribunal’s awards’ interpretation of virtually the same treaty provisions (IBA, 2016, p. 2)
Summary
This paper is divided into two chapters. The first chapter is a case note on the key jurisdictional issues related to the legality of the investment and the interpretation principles used to solve these matters derived from the award of ICSID Case No ARB/14/21 between the claimant, Canadian company Bear Creek Mining Corporation (“BC”), and the respondent, Republic of Peru. The second chapter provides an analysis and discusses the application of an implied legality of the investment requirement in order to determine the tribunal’s jurisdiction, especially if that requirement is not expressly included in the relevant treaty.
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