Set 2 Flashcards
(30 cards)
What is the difference between jurisdiction and admissibility?
Jurisdiction concerns the tribunal’s legal power to hear a case; admissibility concerns whether a claim should be heard at that time or in that form.
How does the tribunal determine jurisdiction in ICSID cases?
Under Article 41(1) of the ICSID Convention, the tribunal has the competence to decide its own jurisdiction.
What case highlighted the need for ‘good faith’ in ICSID jurisdiction?
Phoenix Action Ltd v. Czech Republic (2009)
What is the ‘Salini test’ and is it mandatory?
It provides four indicators to determine investment status; while widely referenced, it is applied flexibly or even rejected in some cases.
What are common ratione voluntatis challenges?
Claims that consent was not given, was withdrawn, or did not cover specific dispute types.
What is the importance of the Broches test for SOEs?
It determines whether a state-owned enterprise qualifies as an investor under ICSID (Broches formulation from ICSID drafting history).
What is the significance of Saba Fakes v. Turkey (2010)?
The tribunal dismissed the claim due to the claimant’s failure to prove its corporate nationality.
In what 2011 case did a tribunal accept mass claims under ICSID jurisdiction?
Abaclat v. Argentina (2011)
What case refused to import dispute resolution clauses via an MFN clause?
Plama v. Bulgaria (2005)
What type of arbitration rules are used in non-ICSID investment arbitration?
Common rules include UNCITRAL, SCC, and ICC arbitration rules.
How is ICSID award enforcement different from UNCITRAL awards?
ICSID awards are automatically enforceable under the ICSID Convention; UNCITRAL awards must be recognized by national courts under the New York Convention.
What was the ruling in Ambiente Ufficio v. Argentina (2013)?
The tribunal upheld jurisdiction for multiple claimants and emphasized the flexible application of Salini criteria.
What is ‘denial of benefits’ in jurisdictional context?
A clause allowing states to exclude protections to investors lacking substantial business activity in their home state.
What is the importance of the ‘cooling-off’ period in BITs?
It’s a procedural requirement to allow amicable resolution before arbitration; failure to observe it may affect admissibility.
How do tribunals handle consent in umbrella clauses?
Some treat it as extending treaty protection to contract obligations, while others require clear linkage to treaty breaches.
What is the fork-in-the-road clause designed to prevent?
Forum shopping and parallel litigation between domestic and international forums.
How is jurisdiction challenged on ratione temporis grounds?
By arguing the investment or dispute arose before or after the BIT entered into force.
What is the significance of Postova Banka v. Greece (2015)?
The tribunal denied jurisdiction, finding that sovereign bonds did not meet the definition of investment under the ICSID Convention.
Can an investor claim based on an indirect shareholding?
Yes, if the BIT covers indirect investments and there’s sufficient connection (e.g., Abaclat, 2011).
What tribunal principle is expressed in ‘competence-competence’?
The tribunal has authority to determine its own jurisdiction.
What is a fork-in-the-road clause?
A treaty provision requiring an investor to choose either domestic litigation or international arbitration, with the first choice being final.
How did Genin v. Estonia (2001) interpret the fork-in-the-road clause?
The tribunal found that claims in domestic court and arbitration were legally distinct, so the clause did not apply.
What test is often used to interpret fork-in-the-road clauses?
The ‘fundamental basis’ test—do the claims share the same legal basis and factual content?
What happened in H&H Enterprises v. Egypt (2014) regarding fork-in-the-road?
The tribunal held that earlier domestic proceedings barred subsequent arbitration under the fork-in-the-road clause.
