Convention Violations and Investment Claims

Abstract

In theory, treaty commitments remain a foundation of international law, often expressed in the adage pacta sunt servanda: ‘agreements are to be kept’.1 In practice, however, some treaty violations remain without realistic sanctions. Here as elsewhere, the divergence between theory and practice remains greater in practice than in theory. Mature legal thinking implicates more than one principle. The Convention requires that signatory nations give effect to the treaty. Article II and Article III contain mandatory language, stating that contracting states ‘shall recognize’ (respectively) arbitration agreements and arbitral awards. If a national constitution so requires, giving effect to agreements and awards might call for implementing legislation. If a country fails to implement the Convention, its national courts might well look to domestic constitutional law rather than treaty provisions. Such failure to implement the Convention nevertheless constitutes a breach of treaty obligation. Similar lines of...