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Non-treaty Claims in Investment Treaty Arbitration

Published online by Cambridge University Press:  23 November 2017

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Abstract

This article explores the conditions under which it is possible to bring claims based on non-international investment agreement (IIA) norms of international law in investment treaty arbitration. For that purpose, it analyzes in the first instance broad dispute settlement clauses incorporated in IIAs that make reference to the settlement of ‘any investment dispute’. Such clauses grant jurisdiction to investment treaty tribunals to hear non-IIA claims. However, at least two additional conditions need to be satisfied for the investor to bring a self-standing claim based on a non-IIA norm of international law. First, the non-IIA instrument (a contract or another international treaty) may include a dispute settlement clause envisaging exclusive jurisdiction in favour of another forum. Second, the investor's standing to bring a claim based on a non-IIA norm of international law depends on whether this norm attributes any legal entitlement in the benefit of the investor.

Keywords

admissibilityexclusive forum selection agreementsinvestment treaty arbitrationjurisdictionstanding
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 31 , Issue 1 , March 2018 , pp. 59 - 91
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2017 

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References

1 Emmis International Holding, Emmis Radio Operating and MEM Magyar Electronic Media v. Hungary, ICSID Case No. ARB/12/2, Decision on Respondent's Objection under ICSID Arbitration Rule 41(5), 11 March 2013, paras. 33–4; Accession Mezzanine Capital and Danubius Kereskedöhaz Vagyonkezelö v. Hungary, ICSID Case No. ARB/12/3, Decision on Respondent's Objection under Arbitration Rule 41(5), 16 January 2013, para. 37; Peter A Allard v. The Government of Barbados, PCA Case No. 2012-06, 1976 UNCITRAL Arbitration Rules, Award on Jurisdiction, 13 July 2014, para. 25.

2 Parlett, K., ‘Claims under Customary International Law in ICSID Arbitration’, (2016) 31 (2) ICSID Review 434 CrossRefGoogle Scholar.

3 1833 UNTS 3 (1982), entered into force on 16 November 1994.

4 330 UNTS 3 (1958), entered into force on 7 June 1959.

5 ATA Construction, Industrial and Trading Company v. The Hashemite Kingdom of Jordan, ICSID Case No. ARB/08/2, Award, 18 May 2010, paras. 125, 128.

6 Saipem S.p.A. v. People's Republic of Bangladesh, ICSID Case No. ARB/05/7, Award, 30 June 2009, para. 170 (emphasis added).

7 999 UNTS 171 (1966), entered into force on 23 March 1976.

8 Toto Costruzioni Generali S.p.A. v. The Republic of Lebanon, ICSID Case No. ARB/07/12, Decision on Jurisdiction, 11 September 2009, paras. 152–68.

9 Parlett, supra note 2, at 453–4.

10 E.g., Ch. 14 of the Agreement Between Australia and Japan for an Economic Partnership; Arts. 8.27–8.28 of the Comprehensive Economic and Trade Agreement between Canada-European Union (CETA). See also Nottage, L., ‘Investor-State Arbitration: Not in the Australia-Japan Free Trade Agreement, and Not Ever for Australia?’, (2014) 19 (2) Journal of Japanese Law 37 Google Scholar; Trakman, L.E. and Musayelyan, D., ‘The Repudiation of Investor-State Arbitration and Subsequent Treaty Practice: The Resurgence of Qualified Investor-State Arbitration’, (2016) 31 (1) ICSID Review 194 CrossRefGoogle Scholar.

11 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgment of 3 February 2015, [2015] ICJ Rep. 3, para. 88.

12 Z. Douglas, The International Law of Investment Claims (2009), 234.

13 Art. 26(1) of the 1994 Energy Charter Treaty, 2080 UNTS 95 (emphasis added).

14 Douglas, supra note 12, at 235. See also Parlett, supra note 2, at 454.

15 United Parcel Service of America Inc v. Canada, Arbitration under Chapter 11 of NAFTA / UNCITRAL, Award on Jurisdiction, 22 November 2002, paras. 60–1, 67.

16 Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award, 4 April 2016, para. 471.

17 Art. 24(1)(a)(i) and Art. 24(1)(b)(i) of the US Model BIT (2012), available at ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf.

18 Art. 1 of the US Model BIT (2012). See also K.J. Vandevelde, U.S. International Investment Agreements (2009), 599.

19 Douglas supra note 12, at 235.

20 Compania de Aguas del Aconquija SA and Vivendi Universal v. Argentine Republic, ICSID Case No. ARB/97/3, Decision on Annulment, 3 July 2002, para. 55.

21 Yet, it is to be noted that this view does not constitute a jurisprudence constante. Some arbitral tribunals still ignored the contrast in the text of different IIAs’ dispute settlement provision and failed to treat the discussion on the scope of their jurisdiction. See, for instance, El Paso Energy International Company v. Argentine Republic, ICSID Case No. ARB/03/15, Decision on Jurisdiction, 27 April 2006, para. 65; LESI S.p.A. et ASTALDI S.p.A. v. Algeria, ICSID Case No. ARB/05/3, Decision, 12 July 2006, para. 84(i).

22 Vivendi v. Argentina, Decision on Annulment, supra note 20, para. 55.

23 Art. 8(1) of the 1990 Italy-Morocco BIT reads as ‘[a]ll disputes or differences, including disputes related to the amount of compensation due in the event of expropriation, nationalisation, or similar measures, between a Contracting Party and an investor of the other Contracting Party concerning an investment of the said investor . . .’ (emphasis added).

24 Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 16 July 2001, para. 59.

25 SGS Société Générale de Surveillance SA v. Republic of Philippines, ICSID Case No. ARB/02/6, Decision on Jurisdiction, 29 January 2004, para. 131. For an opposite reading of an identical dispute settlement clause, see SGS Société Générale de Surveillance SA v. Islamic Republic of Pakistan, ICSID Case No. ARB/01/13, Decision on Jurisdiction, 6 August 2003, paras. 161–2.

26 SGS v. Philippines, supra note 25, para. 132(b). See also, ibid., para. 132(e).

27 See, e.g., Schreuer, C., ‘Investment Treaty Arbitration and Jurisdiction over Contract Claims – the Vivendi I Case Considered’, in Weiler, T. (ed.), International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law (2005) 281, 296–9Google Scholar; Alexandrov, S., ‘Breach of Treaty Claims and Breach of Contract Claims: Is It Still Unknown Territory?’, in Yannaca-Small, K., Arbitration Under International Investment Agreements: A Guide to the Key Issues (2010) 323, 331–2Google Scholar; Parlett, supra note 2, at 437. Cf E. Gaillard, , ‘Investment Treaty Arbitration and Jurisdiction over Contract Claims – the SGS Cases Considered’, in Weiler, T. (ed.), International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law (2005) 325, 336Google Scholar.

28 Crawford, J., ‘Treaty and Contract in Investment Arbitration’, (2008) 24 (3) Arbitration International 351, at 362CrossRefGoogle Scholar.

29 Douglas, supra note 12, at 238.

30 Douglas, supra note 12, at 238–40.

31 See Salini v. Morocco, supra note 24, paras. 60–1; Impregilo S.p.A v. Islamic Republic of Pakistan, ICSID Case No ARB/03/3, Decision on Jurisdiction, 22 April 2005, paras. 211–16. See also Crawford, supra note 28, at 363. In Bayindir v Pakistan, which involved this scenario, the tribunal upheld its jurisdiction only over treaty claims without providing any reasoning as to why it did not have jurisdiction over contractual claims (Bayindir Insaat v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Decision on Jurisdiction, 14 November 2005, para. 263). This is mostly because the tribunal did not have power to make such decision after the investor had withdrawn its argument that the tribunal had jurisdiction over contractual claims (para. 63). In any case, the tribunal did not have jurisdiction to hear those claims because the contract was between the investor and a state entity, who was not a party to the investment dispute.

32 See Azurix Corp v. The Argentine Republic, ICSID Case No. ARB/01/12, Award, 14 July 2006, para. 384; Siemens AG v. The Argentine Republic, ICSID Case No. ARB/02/8, Award, 6 February 2007, para. 205; Oxus Gold v. The Republic of Uzbekistan, UNCITRAL, Final Award, 17 December 2015, para. 377.

33 WNC Factoring Ltd v. The Czech Republic, PCA Case No. 2014-34, Award, 23 February 2017, para. 322.

34 Ibid., para. 323. See also para. 335.

35 Douglas, supra note 12, at 238.

36 Douglas, Z., ‘The enforcement of environmental norms in investment treaty arbitration’, in Dupuy, P.M. and Viñuales, J.E. (eds.), Harnessing Foreign Investment to Promote Environmental Incentives and Safeguards (2013) 415, 424–5CrossRefGoogle Scholar.

37 See, e.g., the dispute in Allard v. Barbados, supra note 1, para. 3. The investor claimed in this case the breach of the applicable BIT, as well as the violation of a principle of customary international law which is the prohibition of using its own territory in such a manner as to cause injury to a third person (ibid., para. 25). It seems that the investor abandoned the latter claim at the merits phase (see Peter A Allard v. The Government of Barbados, PCA Case No. 2012-06, 1976 UNCITRAL Arbitration Rules, Award, 27 June 2016, para. 51). The investor did not in this case directly invoke any environmental law cause of action but it indirectly claimed the failure of the implementation of domestic environmental law through the operation of the full protection and security standard of the BIT (ibid., para. 239(iii)).

38 Viñuales, J.E., ‘Foreign Investment and the Environment in International Law: An Ambiguous Relationship’, (2009) 80 BYBIL 244, at 256–7Google Scholar.

39 Ibid., at 257.

40 Biloune and Marine Drive Complex Ltd v. Ghana Investments Centre and the Government of Ghana, UNCITRAL, Award on Jurisdiction and Liability, 27 October 1989, 95 ILR 183, 202–3.

41 Ibid., at 202.

42 Ibid., at 203.

43 Ibid.

44 ETS 9 (1952).

45 213 UNTS 221 (1950), entered into force on 3 September 1953.

46 See Balkan Energy (Ghana) Limited v. The Republic of Ghana, PCA Case No. 2010-7, Award on the Merits, 1 April 2014, para. 553.

47 Concluded on 2 September 1987, entered into force on 1 July 1988.

48 Concluded on 5 October 1988, entered into force on 16 May 1989.

49 Emmis International Holding, Emmis Radio Operating and MEM Magyar Electronic Media v. Hungary, ICSID Case No. ARB/12/2, Award, 16 April 2014, para. 143. See also Accession Mezzanine v. Hungary, supra note 1, para. 64.

50 Emmis v. Hungary, supra note 1, para. 81.

51 Ibid., para. 82.

52 Cf. Accession Mezzanine v. Hungary, supra note 1, para. 72.

53 See, e.g., Woodruff, USA/Venezuela Mixed Claims Commission, 1903-1905, IX UNRIAA 213, 222.

54 North American Dredging Company of Texas (USA) v. United Mexican States, Mexico/USA General Claims Commission, 31 March 1926, IV UNRIAA 26, paras. 14, 20, 23.

55 See also Douglas supra note 12, at 366–70.

56 SGS v. Philippines, supra note 25, paras. 154–5.

57 Douglas, supra note 12, at 364 and Rule 45.

58 SGS v. Philippines, supra note 25, para. 138.

59 Crawford, supra note 28, at 363.

60 SGS v. Philippines, supra note 25, para. 138.

61 Crawford, supra note 28, at 363.

62 MNSS and Recupero Credito Acciaio v. Montenegro, ICSID Case No. ARB(AF)/12/8, Award, 4 May 2016, para. 159.

63 See Crawford, supra note 28, at 363.

64 Douglas, supra note 12, at 393.

65 Toto v. Lebanon, supra note 8, para. 202.

66 See SGS v Philippines, supra note 25, para. 128.

67 Cf. SGS v. Philippines, supra note 25, paras. 154–5.

68 SGS v. Philippines, supra note 25, para. 154. See also Vivendi v. Argentina, Decision on Annulment, supra note 20, para 76, where the annulment committee refused to consider the forum selection agreement in the contract as an issue affecting the jurisdiction of the tribunal over treaty claims.

69 SGS v. Philippines, supra note 25, paras. 175, 177(c).

70 Vivendi v. Argentina, Decision on Annulment, supra note 20, para. 95.

71 Vivendi v. Argentina, Decision on Annulment, supra note 20, para. 95.

72 See Impregilo v. Pakistan, supra note 31, para. 289 (consider in conjunction with the analysis in paras. 264–7 and 281). See also Vivendi v. Argentina, Decision on Annulment, supra note 20, para. 101.

73 Contra Nykomb Synergetics v. Republic of Latvia, SCC, Award, 16 December 2003, Section 2.4, where the tribunal concluded that ‘it has jurisdiction to determine, as a preliminary matter, whether there has been a breach of the contract, insofar as it is necessary for its decision in relation to the claims raised on the basis of the Treaty’.

In this case, a subsidiary of the investor (but not the investor itself) was a party to the contract which fixed the general tariff for average sales prices of electricity and which involved an exclusive jurisdiction agreement. Although it is true that the jurisdiction agreement would not bind a person that is not a party to it, that person would not be entitled to invoke the rights under this contract even under the guise of a treaty claim. In other words, as opposed to what was explicitly suggested by the tribunal, the investor's claims cannot be based on alleged breaches of its subsidiary's contract.

74 Douglas, supra note 12, at 364.

75 Vivendi v. Argentina, Decision on Annulment, supra note 20, para. 98. See also Douglas, supra note 12, at 371.

76 For instance, the presence of an unresolved contractual dispute as to the amount payable in SGS v. Philippines made the adjudication of the treaty claim by the investment tribunal ‘inappropriate and premature’. See SGS v. Philippines, supra note 25, para. 162.

77 See SGS v. Philippines, supra note 25, para. 163.

78 Douglas, supra note 12, at 364, 390 and Rule 44.

79 Compania de Aguas del Aconquija SA and Vivendi Universal v. Argentine Republic, ICSID Case No. ARB/97/3, Award (Resubmitted Claim), 20 August 2007, para. 7.3.10.

80 Ibid., para. 7.3.8.

81 Three sentences in Vivendi v. Argentina, Award in the Resubmitted Claim, supra note 79, para. 7.3.10, which conclude the discussion on the tribunal's power to consider alleged breaches of the contract, are almost identical with the ones in Vivendi v. Argentina, Decision on Annulment, supra note 20, para. 95.

82 Vivendi v. Argentina, Award in the Resubmitted Claim, supra note 79, para. 7.3.8.

83 Ibid., para. 7.3.9.

84 Ibid.

85 Vivendi v. Argentina, Decision on Annulment, supra note 20, para. 105.

86 Vivendi v. Argentina, Award in the Resubmitted Claim, supra note 79, para. 7.3.11.

87 Crystallex v. Venezuela, supra note 16, para. 480.

88 See Bayindir v. Pakistan, supra note 31, para. 151; Toto v. Lebanon, supra note 8, para. 217. Schreuer also notes, ‘consistent line of authorities demonstrates that a forum selection clause contained in a contract between the investor and the host State does not affect the competence of a tribunal, based on a BIT’; Schreuer, supra note 27, at 293.

89 See, e.g., Bayindir v. Pakistan, supra note 31, paras. 166-167; Suez, Sociedad General de Aguas de Barcelona S.A, and Vivendi Universal S.A. v. Argentine Republic, ICSID Case No. ARB/03/19, in conjunction with AWG Group Ltd v. Argentine Republic, UNCITRAL (together Suez v. Argentina), Decision on Jurisdiction, 3 August 2006, para. 43; MNSS v. Montenegro, supra note 62, para. 196.

90 Bayindir v. Pakistan, supra note 31, para. 270.

91 MNSS v. Montenegro, supra note 62, para. 196.

92 See also Gaillard, supra note 27, at 344–5 who considers that the scope of application of an exclusive contractual forum selection agreement would be distinct from the scope of application of the dispute settlement clause in a particular IIA even when the investment treaty claim is based on the umbrella clause of the IIA.

93 Bayindir v. Pakistan, supra note 31, paras. 272–3.

94 Ibid., para. 271.

95 It is to be noted that in the context of the Bayindir v. Pakistan case, the relevant contract was not between the parties of the investment dispute (the investor had signed a contract with a state entity, not with the state itself). Therefore, even if there had not been any forum selection clause in that contract, the investment tribunal should have avoided making any conclusion on the contractual dispute.

96 Alternatively, one could also easily argue that in each case where there is an exclusive forum selection agreement, there are compelling reasons of principle and policy that mandate preserving the efficacy of such agreements, such as protecting legal certainty, avoiding the potential risk of multiple proceedings, and honouring the collective will of the parties; Douglas, supra note 12, at 364–5.

97 Douglas, supra note 12, at 375 and 377.

98 G.B. Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (2013), 17.

99 Cf. Lanco International v. Argentine Republic, ICSID Case N.o ARB/97/6, Preliminary Decision, 8 December 1998, para. 26. See also SGS v. Philippines, supra note 25, para. 138.

The tribunal in Lanco did not consider the contractual dispute settlement clause for the settlement of administrative disputes as a proper forum selection agreement, but rather as a confirmation of the pre-existing jurisdiction, because administrative jurisdiction could not be selected by the mutual agreement of parties (para. 26).

100 Born, supra note 98, at 19.

101 Art. 25(1) of the EU Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (application as of 10 January 2015).

102 Art. 3(b) of the Convention of 30 June 2005 on Choice of Court Agreements (entered into force on 1 October 2015).

103 See Gaillard, E. and Savage, J. (eds.), Fouchard Goldman Gaillard on International Commercial Arbitration (1999), 381 Google Scholar; J.D.M. Lew, L.A. Mistelis and S.M. Kröll, Comparative International Commercial Arbitration (2003), 4.

104 Art. II(3) of the New York Convention, supra note 4.

105 Arbitration agreements providing that ‘the parties may refer any disputes under the contract to arbitration’ (emphasis added) or ‘any Party may submit the dispute to binding arbitration’ (emphasis added) were not construed as typical exclusive arbitration agreements by the Court of Appeal for Ontario in Canadian National Railway Company v. Lovat Tunnel Equipment Inc (1999), 174 DLR (4th) 385 and by the UK Privy Council in Anzen Limited and others v. Hermes One Limited [2016] UKPC 1 respectively. Notwithstanding that, both courts considered the submission of the dispute to another forum as neither binding nor final. They rather interpreted the dispute settlement clause in a way that arbitration would become binding after either party initiates an arbitral proceeding, even if the matter had previously been submitted to a domestic court (Canadian National Railway Company, paras. 12–14; Anzen v. Hermes, paras. 32–5).

106 G.B. Born, International Commercial Arbitration (2014), 1392.

107 For an investment tribunal distinguishing these two interpretations, see MNSS v. Montenegro, supra note 62, paras. 155–9.

108 See Getma International v. Republic of Guinea, ICSID Case No. ARB/11/29, Decision on Jurisdiction, 29 December 2012, paras. 97–125; Hochtief AG v. Argentine Republic, ICSID Case No. ARB/07/31, Decision on Liability, 29 December 2014, paras. 187–94.

109 Art. 28 of the ICCPR established the Human Rights Committee. As per Art. 41, the Committee has jurisdiction to hear claims of a state party alleging that another state party has breached its obligations under the Covenant on the condition that both states parties have recognized the competence of the Committee. Art. 19 of the ECHR established the European Court of Human Rights (ECtHR), which, under Art. 32, has jurisdiction to hear all disputes concerning the interpretation and application of the Convention and its Protocols. Art. 30 of the African Charter on Human and Peoples Rights established the African Commission on Human and Peoples’ Rights, which, under Art. 49, has jurisdiction to hear disputes between states parties concerning a state party's allegation that the other has violated the provisions of the Charter.

Art. 52 of the American Convention on Human Rights established the Inter-American Court of Human Rights, which, under Arts. 61 and 62, has jurisdiction over claims submitted by states parties, as well as by the Inter-American Commission on Human Rights, against another state party that has recognized the Court's jurisdiction for disputes concerning the interpretation and application of the provisions of the Convention.

110 App. 1 to the DSU lists the agreements that are covered by this particular dispute settlement mechanism.

111 E.g., under Arts. 258 and 259 of the Treaty on the Functioning of the European Union, the Court of Justice of the European Union has jurisdiction over disputes concerning the obligations prescribed by this treaty and the Treaty on European Union, and under Art. 263, over legislative acts, recommendations, opinions, and other acts of the organs of the European Union.

112 E.g., Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation); Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation recast); Regulation No. 593/2008 on the law applicable to contractual obligations (Rome I Regulation); Regulation No. 864/2007 on the law applicable to non-contractual obligations (Rome II Regulation); Regulation No. 1259/2010 implementing enhanced co-operation in the area of the law applicable to divorce and legal separation (Rome III Regulation); Regulation No. 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (Rome IV Regulation). These instruments are in the form of EU regulations rather than international conventions.

113 E.g., Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Brussels Convention) and Convention on the law applicable to contractual obligations (Rome Convention). The Rome Convention may still find application due to intertemporal rules in the Rome I Regulation, which replaced the Rome Convention. Art. 28 of the Rome I Regulation states that the Regulation is to apply to contracts concluded after 17 December 2009. Contracts concluded before this date are still governed by the Rome Convention.

114 Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (see curia.europa.eu/common/recdoc/convention/en/c-textes/brux03-idx.htm) gave jurisdiction to the ECJ to interpret the Brussels Convention. First Protocol of 19 December 1988 on the interpretation by the Court of Justice of the European Communities of the Convention on the law applicable to contractual obligations (Official Journal of the European Communities L 048, 20 February 1989, at 1–16) and Second Protocol of 19 December 1988 conferring on the Court of Justice of the European Communities certain powers to interpret the Convention on the law applicable to contractual obligations (Official Journal of the European Communities L 048, 20 February 1989, at 17–22) gave jurisdiction to the ECJ to interpret the Rome Convention.

115 See Section 3.1.

116 1155 UNTS 331 (1969), entered into force 27 January 1980.

117 Art. 31(1) of the VCLT.

118 E.g., the New York Convention, supra note 4.

119 E.g., Art. 11(3) of the 1985 Vienna Convention for the Protection of the Ozone Layer, 1513 UNTS 293 (entered into force on 22 September 1988); Art. 22(2) of the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1936 UNTS 269 (entered into force on 6 October 1996); Art. XVIII of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 993 UNTS 243 (entered into force on 1 July 1975).

120 Art. 33 reads: ‘[a]ny High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention . . . by another High Contracting Party’ (emphasis added) and Art. 34 reads: ‘[t]he Court may receive applications from any person . . . claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention . . .’ (emphasis added).

121 Art. 287(1) of the UNCLOS.

122 J.G. Merrils, International Dispute Settlement (2017), 180.

123 Art. 287(5) of the UNCLOS.

124 Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (2003), 201–2.

125 Southern Bluefin Tuna (New Zealand-Japan, Australia-Japan), Award on Jurisdiction and Admissibility, 4 August 2000, XXIII RIAA 1, para. 59.

126 See MOX Plant (Ireland v. United Kingdom), PCA Case No. 2002-01, Order No. 3, 24 June 2003, paras. 23–8.

127 South China Sea (The Republic of Philippines v. The People's Republic of China), PCA Case No. 2013-19, Award, 12 July 2016, para. 159.

128 Shany, supra note 124, at 183; J. Crawford, Brownlie's Principles of Public International Law (2012), 739; Merrils, supra note 122, at 232.

129 Emphasis added.

130 Iwasawa, Y., ‘Settlement of Disputes Concerning the WTO Agreement: Various Means Other Than Panel Procedures’, in Young, M.K. and Iwasawa, Y. (eds.), Trilateral Perspectives on International Legal Issues: Relevance of Domestic Law and Policy (1996), 377, 400Google Scholar. See also Merrils, supra note 122, at 232; cf. Shany supra note 124, at 184.

131 For the objectives of the WTO dispute settlement procedure, see M. Matsushita et al., The World Trade Organization: Law, Practice, and Policy (2015), 90.

132 Art. 3(2) of the WTO DSU.

133 Art. 22(1) of the WTO DSU.

134 LaGrand (Germany v. USA), Merits, Judgment of 27 June 2001, [2001] ICJ Rep. 466, para. 77; Avena and Other Mexican Nationals (Mexico v USA), Merits, Judgment of 31 March 2004, [2004] ICJ Rep. 12, para. 40. Cf. Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials who have Passed into the Polish Service, Against the Polish Railways Administration), Advisory Opinion of 3 March 1928, PCIJ Rep. Series B No 15 (1928) 3, at 17–18. See also Lauterpacht, E. (ed.), International Law: Collected Papers of Hersch Lauterpacht, Vol I (1970), 469–70Google Scholar; K. Parlett, The Individual in the International Legal System: Continuity and Change in International Law (2011), 47–175.

135 LaGrand, supra note 134, para. 78; Avena, supra note 134, para. 124.

136 R. Jennings and A. Watts, Oppenheim's International Law (1992), 847 (footnote omitted).

137 LaGrand, supra note 134, para. 77. See also Paparinskis, M., ‘Investment Treaty Arbitration and the (New) Law of State Responsibility’, (2013) 24 (2) EJIL 617, at 626Google Scholar.

138 Paparinskis, supra note 137, at 626.

139 Douglas, supra note 12, at 32–8; Parlett, supra note 134, at 103–19. See also Paparinskis, supra note 137; A. Peters, Beyond Human Rights (2016), 301–17.

140 This might be contrasted with the general understanding in international law, which is expressed by Peters in the following terms: ‘the violation of a State obligation that is owed only among States and that benefits individuals only reflexively (without a corresponding primary right of that individual against the State) cannot trigger State responsibility vis-à-vis that individual, but it might trigger international responsibility vis-à-vis the individual's home State’; Peters, supra note 139, at 167.

141 The investor may, however, claim that this wrongful act is at the same time in breach of another norm, which protects the investor or its investment, such as the breach of the fair and equitable treatment standard. This would depend on the interpretation of the content of the relevant norm. The investor would have standing to invoke this international cause of action under the traditional investment treaty arbitration regime.

142 1974 UNTS 45 (1992), entered into force 29 April 1997.

143 Art. 1 of the Chemical Weapons Convention, ibid.

144 2303 UNTS 162 (1997), entered into force 16 February 2005.

145 Art. 3 of the Kyoto Protocol, ibid.

146 Principle 1 of the Rio Declaration on Environment and Development states that ‘[h]uman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature’. This is a non-binding soft law instrument. Besides, whereas this norm puts human beings at the centre of concerns, it aims to protect the humankind and the societies rather than individuals. For this reason, it must be construed as an inter-state norm as well. The only norm recognizing the rights of individuals is Principle 10, which provides for an entitlement to an appropriate level of access to information concerning the environment that is held by public authorities. This principle is still not binding per se. It inspired, however, the adoption of the 1998 Aarhus Convention. See P. Sands and J. Peel, Principles of International Environmental Law (2012), 91.

147 See Arts. 1, 3(1) and 3(7) of the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 2161 UNTS 446 (entered into force 30 October 2001).

148 See, however, Sands and Peel, supra note 146, at 781.

149 Sands and Peel, supra note 146, at 181; Francioni, F., ‘ The private sector and the challenge of implementation ’, in Dupuy, P.M. and Viñuales, J.E. (eds.), Harnessing Foreign Investment to Promote Environmental Incentives and Safeguards (2013) 24, at 36–7CrossRefGoogle Scholar. Cf. Boyle, A., ‘Human Rights and the Environment: Where Next?’, (2012) 23 (3) EJIL 613 Google Scholar.

150 López Ostra v. Spain, ECtHR Case No. 16798/90, 9 December 1994, para. 58.

151 On navigational rights and freedoms, see Y. Tanaka, ‘Navigational Rights and Freedoms’, in D.R. Rothwell et al., The Oxford Handbook of the Law of the Sea (2015), 536.

152 Art. 24(1) of the UNCLOS.

153 Art. 26(1) of the UNCLOS.

154 M/V “Saiga” (Saint Vincent and the Grenadines v Guinea), ITLOS Case No. 2, Judgment, 1 July 1999, para. 106; M/V “Virginia G” (Panama/Guinea-Bissau), ITLOS Case No. 19, Judgment, 14 April 2014, para. 127; Artic Sunrise (The Kingdom of the Netherlands v. The Russian Federation), PCA Case No. 2014-02, Award on the Merits, 14 August 2015, para. 172; Duzgit Integrity (The Republic of Malta v. The Democratic Republic of São Tomé and Príncipe), PCA Case No. 2014-07, Award, 5 September 2016, para. 150.

155 M/V “Virginia G”, supra note 154, para. 156.

156 993 UNTS 3 (1966), entered into force on 3 January 1976.

157 1249 UNTS 13 (1979), entered into force on 3 September 1981.

158 1465 UNTS 85 (1984), entered into force on 26 June 1987.

159 See also Parlett, supra note 134, at 278–339.

160 Emphasis added.

161 E.g., Art. 1 of UK/France Double Taxation Convention (concluded on 19 July 2008; entered into force on 18 December 2009).

162 Art. II(1) requires that ‘[e]ach Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship’ (emphasis added).

Art. II(3) requires that ‘[t]he court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an [arbitration agreement], shall . . . refer the parties to arbitration’ (emphasis added).

Art. III requires that ‘[e]ach Contracting State shall recognize arbitral awards as binding and enforce them . . .’ (emphasis added).

163 The mechanism under Art. II(3) (the obligation of a domestic court to refer the parties to arbitration) is triggered at the request of one of the parties to the litigation before that court.

Art. IV explains how to obtain the recognition and enforcement of a foreign arbitral award. It stipulates that the party applying for recognition and enforcement needs to supply a certain number of documents.

164 See Demirkol, B., ‘Enforcement of International Commercial Arbitration Agreements and Awards in Investment Treaty Arbitration’, (2015) 30 (1) ICSID Review 56 CrossRefGoogle Scholar.

165 See the famous maxim of E. de Vattel, Le Droit des gens, ou principes de la loi naturelle (M.P. Pradier-Fodéré, ed., 1863), Livre II, Chapitre VI, §71: ‘whoever ill-treats a citizen indirectly injures the State, which must protect that citizen’.

166 Mavrommatis Palestine Concessions (Greece v. United Kingdom), Judgment of 30 August 1924, PCIJ Rep Series A No 2 (1924) 5, 12.

167 ILC Commentary to Articles on Diplomatic Protection, Art. 1, para. 3.

168 See, e.g., Avena, supra note 134, para. 40.

169 ILC Commentary to Articles on Diplomatic Protection, Art. 1, para. 3. See further Peters, supra note 139, at 392–6.

170 See ILC Commentary to Articles on Diplomatic Protection, Art. 1, para. 4.

171 Lauterpacht, supra note 134, at 470.

172 Parlett, supra note 2, at 435–6.