Abstract
Abstract International investment tribunals are frequently required to interpret and apply rules of Customary International Law (CIL) in investor-State disputes. This article examines how investor-State tribunals, in particular those constituted on the basis of the Energy Charter Treaty (ECT), have interpreted the CIL ‘full reparation’ standard regarding damages and reparation. By reference to ECT jurisprudence it is established that tribunals often utilize teleological interpretive tools to give content to this norm. Furthermore, some critical comments are made concerning the manner in which ECT tribunals subsequently apply the ‘full reparation’ standard. It is argued that the combination of the commonly adopted approaches to interpretation and application may explain why investors are occasionally capable of obtaining significant amounts of compensation in these public law disputes.
Highlights
Over the last three decades international investment law has established itself as one of the most important subfields of international law: in the 1990’s hundreds – if not thousands – of investment treaties were concluded, a development that was followed by a surge in investment disputes starting in the late 90’s that continues until this day.[1]
Verburg of ‘full reparation.’[8] the present author will attempt to answer the following question: “What interpretive tools have been used by Energy Charter Treaty (ECT) tribunals to interpret the ‘full reparation’ standard as prescribed by Customary International Law (CIL) in cases of an internationally wrongful act?” This examination is expressly limited to awards rendered under the ECT since the applicable law in ECT cases will largely be the same.[9]
The ILC Articles hereby restate the principle that had been applied by the Permanent Court of International Justice (PCIJ) in the Chorzów Factory case and which has received the approval of international courts and tribunals ever since: The essential principle contained in the actual notion of an illegal act – a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals – is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.[31]
Summary
Over the last three decades international investment law has established itself as one of the most important subfields of international law: in the 1990’s hundreds – if not thousands – of investment treaties were concluded, a development that was followed by a surge in investment disputes starting in the late 90’s that continues until this day.[1]. Verburg of ‘full reparation.’[8] the present author will attempt to answer the following question: “What interpretive tools have been used by ECT tribunals to interpret the ‘full reparation’ standard as prescribed by CIL in cases of an internationally wrongful act?” This examination is expressly limited to awards rendered under the ECT since the applicable law in ECT cases will largely be the same.[9] According to Art. 26(6) ECT, tribunals ‘shall decide the issues in dispute in accordance with this Treaty and applicable rules and principles of international law.’[10] Other considerations to keep the scope of this analysis restricted to the ECT are: the fact that it is a highly relevant investment treaty because of its multilateral scope with more than 50 Contracting Parties It is the most often invoked treaty with investment provisions in existence and it applies to the energy sector where the various interests – including financial interests – are often rather significant.[11]. See section 3.2. below. James Crawford, State Responsibility – the General Part (1st ed., 2013) p
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