The Vienna Convention on the Law of Treaties defines a treaty as a written agreement concluded between states that is governed by international law.132. Aside from state laws, treaties are the main instruments that regulate foreign investments. As a result, they are also the main source of investor-state disputes. Historically, BITs and TIPs
127 United Nations (International Law Commission) “ARSIWA” Article 43
http://legal.un.org/ilc/sessions/53/ (Date of use: 02 October 2017) sets out the process to be observed when invoking the responsibility of a state pursuant to Articles 42 and 48 (see ARSIWA Commentary at 119-120). Article 44 provides for circumstances where the responsibility of a state may not be invoked (see ARSIWA Commentary at 120-121). Article 45 provides for circumstances where the responsibility of a state may not be invoked (ARSIWA Commentary at 121-123).
128 United Nations (International Law Commission) “ARSIWA” Articles 49-53
http://legal.un.org/ilc/sessions/53/ (Date of use: 02 October 2017); ARSIWA Commentary at 130-137; Aust Handbook of International Law at 425-428; Rothwell et al International Law: Cases and Materials with Australian Perspectives at 480-484.
129 United Nations (International Law Commission) “ARSIWA” Commentary at 33(4)
http://legal.un.org/ilc/sessions/53/ (Date of use: 02 October 2017).
130 United Nations (International Law Commission) “ARSIWA” Commentary at 33(4)
http://legal.un.org/ilc/sessions/53/ (Date of use: 02 October 2017).
131 United Nations (International Law Commission) “ARSIWA” Commentary at 33 para 4
http://legal.un.org/ilc/sessions/53/ (Date of use: 02 October 2017).
132 Article 2(1) (a) Vienna Convention on the Law of Treaties. See also Anton, Mathew and
Morgan International Law Cases and Materials at 276-388; Henkin et al International Law: cases and materials at 420-425; Dorr O and Schmalenbach K (eds) Vienna Convention on the Law of Treaties: A Commentary (Springer Heidelberg 2012) at 131- 133; Fitzmaurice M and Elias O Contemporary Issues In The Law of Treaties (Eleven International Publishing Utrecht 2005) at 1-3, 7-25.
36
respectively contributed 60 percent and 29 percent of opened under the ICSID.133 On an annualised basis, during 2017 BITs contributed 62 percent of new cases, while TIPs contributed 29 percent of new cases.134 When non-ICSID cases are added, BITs and TIPs respectively contributed 80 and 20 percent of new cases opened during 2017.135
The first modern BIT was the Promotion and Protection of Investments Germany and Pakistan of 25 November 1959 (Germany-Pakistan BIT).136 This BIT referred investor disputes to the ICJ or international arbitration, depending on the agreement of the
133 International Centre for Settlement of Investment Disputes “The ICSID Caseload
Statistics”, Issue 2017-2 (New York 2017) at 10
https://icsid.worldbank.org/en/Documents/resources/ICSID%20Web%20Stats%202017- 2%20(English)%20Final.pdf (Date of use: 10 March 2018). For details of cases opened under various BITs and TIPs see
http://investmentpolicyhub.unctad.org/ISDS/FilterByApplicableIia (Date of use: 30 March 2018).
134 International Centre for Settlement of Investment Disputes “The ICSID Caseload
Statistics”, Issue 2017-2 at 25
https://icsid.worldbank.org/en/Documents/resources/ICSID%20Web%20Stats%202017- 2%20(English)%20Final.pdf (Date of use: 10 March 2018).
135 United Nations Conference on Trade and Development “International Investment
Agreement Issues Note”, Issue 3 at 3
http://unctad.org/en/PublicationsLibrary/diaepcb2017d7_en.pdf (Date of use: 30 March 2018).
136 English version is available at
http://investmentpolicyhub.unctad.org/Download/TreatyFile/1387 (in force 28 April 1962) (Date of use 23 April 2018); Aust Handbook of International Law at 373. For a history of investment treaties see Salacuse JW “BIT by BIT: The Growth of Bilateral Investment Treaties and Their Impact on Foreign Investment in Developing Countries” in Beveridge F (ed) Globalization and International Investment (Ashgate Publishing Limited 2005) at 25- 45; Salacuse JW and Sullivan NP “Do BITs Really Work: An Evaluation of Bilateral Investment Treaties and Their Grand Bargain” 2005 (46) Harvard International Law Journal 67-130 at 73; Salacuse JW The Law of Investment Treaties (Oxford University Press Oxford 2010) at 78-125; Tietje C and F Baetens “The Impact of Investor-State- Dispute Settlement (ISDS) in the Transatlantic Trade and Investment Partnership”: Study prepared for Minister for Foreign Trade and Development Cooperation, Ministry of
Foreign Affairs, The Netherlands, 26 June 2014 at para 10-39
http://media.leidenuniv.nl/legacy/the-impact-of-investor-state-dispute-settlement-isds-in- the-ttip.pdf (Date of use: 17 April 2018); Vandenvelde KJ “A Brief History of International Investment Agreements” 2005 (12) University of California Davis Journal of International Law and Policy 157-194.
37
parties.137 After this BIT was concluded, the use of BITS grew gradually, such that at 1 April 2018 there were 2947 BITs, of which 2364 were in effect.138 The number of TIPs was 379, of which 309 were in force.139
The Vienna Convention on the Law of Treaties provides that every treaty in force is binding upon the parties thereto, and that the parties must comply with their treaty obligations in good faith.140 The basis of the obligation to honour treaties is the maxim pacta sunt servanda.141 Pacta sunt servanda emanates from private law, and means that treaties must be honoured.142 The maxim has been codified as Article 2(b) of ARSIWA.143
A state may not rely on its internal law to avoid compliance with a treaty.144 This is an important pillar for the observance and existence of treaties because in its absence treaties could be easily avoided, given that a state would be able to rely on its internal law to avoid responsibility for breach of the treaty.145 This rule enables international law
137 Article 11(2) Germany-Pakistan BIT.
138 http://investmentpolicyhub.unctad.org/IIA (Date of use: 1 April 2018). 139 http://investmentpolicyhub.unctad.org/IIA (Date of use: 1 April 2018). 140 Article 26; Henkin et al International Law: cases and materials at 463. 141 Fitzmaurice and Elias Contemporary Issues In The Law of Treaties at 3.
142 Dorr and Schmalenbach (eds) Vienna Convention on the Law of Treaties: A Commentary
at 428-429.
143 United Nations (International Law Commission) “ARSIWA” Commentary at 35-36
http://legal.un.org/ilc/sessions/53/ (Date of use: 02 October 2017).
144 Article 27 Vienna Convention on the Law of Treaties; Dorr and Schmalenbach (eds)
Vienna Convention on the Law of Treaties: A Commentary at 453-473. This rule was codified as Article 32 of United Nations (International Law Commission) “ARISWA” http://legal.un.org/ilc/sessions/53/ (Date of use: 02 October 2017), see ARSIWA Commentary at 94 para 2-3. Article 27 is also a codification of international customary law (Dorr and Schmalenbach (eds) Vienna Convention on the Law of Treaties: A Commentary at 454; Azurix Corp. v The Argentine Republic (ICSID Case No. ARB/01/12) Decision on Annulment of 1 September 2009 at para 146).
38
to “turn a blind eye” to a state’s internal law, thus rendering it irrelevant for the purpose of determining state responsibility.146 Hence a provision such as that found in Zimbabwe to the effect that in the event of the expropriation of agricultural land, compensation shall only be paid for improvements but not for the land, is invalid under international law.147
A state may in the compliance with its internal law act in violation of a treaty, or it may, while acting in compliance with a treaty obligation, violate its internal law.148 In the former case, the state’s conduct will be an internationally wrongful act because as already stated, a state may not rely on its internal law to avoid compliance with its treaty obligations. A state may also not argue that its consent to be bound by a treaty is invalid by virtue of the fact that the consent was given contrary to its internal law, unless the granting of the consent was manifest, and it concerned a rule of its internal law of fundamental importance.149
The sum of the above is that breach of a treaty is an internationally wrongful act,150 and it attracts the consequences outlined in Part Two of ARSIWA,151 as well as in international customary law.152 This consequence is the power behind BITs and TIPs, as it compels
at 453.
146 Dorr and Schmalenbach (eds) Vienna Convention on the Law of Treaties: A Commentary
at 460.
147 See the discussion relating to Zimbabwe in Chapter 4 below.
148 Case Concerning Electtronica Sicula S.p.A (USA v Italy) I.C.J. Reports 1989 (ELSI), at
40 para 73.
149 Article 46 Vienna Convention; Dorr and Schmalenbach (eds) Vienna Convention on the
Law of Treaties: A Commentary at 776-804.
150 United Nations (International Law Commission) “ARSIWA” Commentary at 54(2), 55(3)
http://legal.un.org/ilc/sessions/53/ (Date of use: 02 October 2017); ELSI at 70 para 136; Factory at Chorzow (Merits), Judgment No. 7, 1926, P.C.I.J., Series A, No. 7 of 25 May 1926 at 34; Chorzow (Merits) Decision of 13 September 1928 at 46-48.
151 United Nations (International Law Commission) “ARSIWA” Articles 28-41
http://legal.un.org/ilc/sessions/53/ (Date of use: 02 October 2017).
39
host states to honour their obligations in terms thereof.153 In this regard, it is noteworthy that recent arbitral awards in the amounts of USD 39 Billion,154 USD 8 Billion,155 USD 1.8 Billion,156 and USD 1.7 Billion,157 were based on breach of investment treaty.158 In SADC,
suspend its obligations in terms of A treaty, See Fitzmaurice and Elias Contemporary Issues In The Law of Treaties at 164-171.
153 For a breakdown of ISDS cases per BIT or TIP, see
http://investmentpolicyhub.unctad.org/ISDS/FilterByApplicableIia (Date of use: 1 April 2018).
154 Hulley Enterprises Limited at para 1888. The awards were annulled by The Hague
District Court under (Chamber for Commercial Affairs) under case number C/09/477160/HA ZA 15-1, Judgment of 20 April 2016
https://www.italaw.com/sites/default/files/case-documents/italaw7255.pdf (Date of use: 10 April 2018). This decision is pending appeal before The Hague Court of Appeal under case number Case No. 200.197.079/01 (see Russia’s defence at
https://www.italaw.com/sites/default/files/case-documents/italaw9633.pdf) (Date of use: 10 June 2018). The basis of the annulment was that there was no valid consent to arbitration by the Russian Federation (Decision of the District Court at para 5.95 - 5.97).
155 Veteran Petroleum Limited at para 1888. Russia was successful in setting aside the
award, what was said in the preceding note applies in this case as well.
156 Yukos Universal Limited at para 1888. Russia was successful in setting aside the
award, what was said in the preceding note applies in this case as well.
157 Occidental Petroleum Corporation and Occidental Exploration and Production Company
v The Republic of Ecuador (ICSID Case No. ARB/06/11) Award at para 876.
158 See also the following cases where the host states were held liable for breach of treaty:
ADC Affiliate Limited and ADC & ADMC Management Limited v The Republic of Hungary (ICSID Case No. ARB03/16) Award of the Tribunal of 2 October 2006 at para 483, 499; Alpha Projektholding GMBH v Ukraine (ICSID Case No. ARB/07/16) Award of 8 November 2010 at para 413-416; American Manufacturing & Trading Inc v Republic of Zaire (ICSID Case No. ARB/93/1) Award of 10 February 1997 at para 6.01-6.24; ATA Construction, Industrial and Trading Company v The Hashemite Kingdom of Jordan (ICSID Case No. ARB/08/02) Award of 18 May 2010 para 121, 129; Bernhard Hendricus Funekkotter v Republic of Zimbabwe (ICSID Case No. ARB/05/6) Award of 24 July 2008 at 32 para 107; Biwater Gauff at para 814(b); Cargill Incorporated v United Mexican States (ICSID Case No. ARB (AF)/05/02) Award of 18 September 2009 at para 554 – 561; CMS Gas Transmission Company v The Argentine Republic (ICSID Case No, ARB/01/8) Decision on Objections to Jurisdiction of 17 July 2003 at para 281, 303; Desert Line Projects at para 193-194, para 3 of the tribunal’s order; Duke Energy at para 325, 361, 364, para 2 of tribunal’s order; Eureko at para 234, 243, 260, 262; Gemplus at para 7-76, 8-25- 8-27; Ioannis Kardassopoulos at para 541-452; Metalclad Corporation v United Mexican States (ICSID Case No. ARB (AF)/97/1) Award of 30 August 2000 at para 112; Middle East Cement Shipping and Handling Co. S.A v Arab Republic of Egypt (ICSID Case No. ARB/99/6) Award of 12 April 2002 at para 144; OKO Pankki OYJ, VTB Bank (Deutschland) AG and Sampo Bank Plc. v The Republic of Estonia (ICSID Case
40
the highest known arbitral award of USD 194 Million based on breach of treaty was made in Bernhard Von Pezold.159