Arbitral Activism and Choice of Law under the ICSID Convention Chinese Journal of International Law

Arbitral Activism and Choice of Law under the ICSID Convention

Lucas Clover Alcolea, Arbitral Activism and Choice of Law Under ICSID CONVENTION, CHINESE JOURNAL OFNTERNATIONAL LAW 22, Pages 499-546, https: // doi. Org/10. 1093/jmac027

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Abstract

One of the most controversial issues in the International Investment Law is the international law and the local law (domestic law) to determine how international to internationalize or localize investment disputes. Which one is applied. Furthermore, in the context of the Investment Law, there is also the problem of how international law prioritizes domestic law. The ICSID Convention clearly stipulates laws applied to ICSID arbitration through Article 42, indicating a unique entrance to this dispute. In order to determine the role of international law and domestic law under Article 42 of the ICSID Treaty, this paper uses a sem i-fieldist approach. In the original documentary approach, we will focus on the intentions and understanding of the arbitrator as Roadstone, and to examine the General Assembly Travaux Préparatoires, other modern or associate information sources. 。 He also pointed out that the often exaggerated doctrine of the international economic order is an important part of the framework of the ICSID Convention, which has led to a serious mistranslation of the treaty. The general view of rejection of host countries in Article 42 with priority on international law was not intended by the ICSID Treaty Burgling. Rather, Lucas Clover Alcole, Arbitral Activism and Choice of Law Under ICSID ICSID CONVENTION, CHINESE JOURNAL OFNATIL LAW Sue 3, September 2022, Pages 499-546, https: // doi. Org /10. 1093/CHINESEJIL/JMAC027

I. Introduction

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One of the most controversial issues in the International Investment Law is the international law and the local law (domestic law) to determine how international to internationalize or localize investment disputes. Which one is applied. Furthermore, in the context of the Investment Law, there is also the problem of how international law prioritizes domestic law. The ICSID Convention clearly stipulates laws applied to ICSID arbitration through Article 42, indicating a unique entrance to this dispute. In order to determine the role of international law and domestic law under Article 42 of the ICSID Treaty, this paper uses a sem i-fieldist approach. In the original documentary approach, we will focus on the intentions and understanding of the arbitrator as Roadstone, and to examine the General Assembly Travaux Préparatoires, other modern or associate information sources. 。 He also pointed out that the often exaggerated doctrine of the international economic order is an important part of the framework of the ICSID Convention, which has led to a serious mistranslation of the treaty. The general view of rejection of host countries in Article 42 with priority on international law was not intended by the ICSID Treaty Burgling. Rather, Lucas Clover Alcolea, Arbitral Activism and Choice of Law Under ICSID CONVENTION, CHINESE Journal of International Law, ISSUE 3 September 2022, Pages 499-546, https: // Doi. Org/10. 1093/CHINESEJIL/JMAC027

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One of the most controversial issues in the International Investment Law is the international law and the local law (domestic law) to determine how international to internationalize or localize investment disputes. Which one is applied. Furthermore, in the context of the Investment Law, there is also the problem of how international law prioritizes domestic law. The ICSID Convention clearly stipulates laws applied to ICSID arbitration through Article 42, indicating a unique entrance to this dispute. In order to determine the role of international law and domestic law under Article 42 of the ICSID Treaty, this paper uses a sem i-fieldist approach. In the original documentary approach, we will focus on the intentions and understanding of the arbitrator as Roadstone, and to examine the General Assembly Travaux Préparatoires, other modern or associate information sources. 。 He also pointed out that the often exaggerated doctrine of international economic order is an important part of the framework of the ICSID Convention, which has led to a serious mistranslation of the treaty. The general view of rejection of host countries in Article 42 with priority on international law was not intended by the ICSID Treaty Burgling. Rather, the drooling people
1. The purpose of this paper is to promote the interpretation of Article 42 of the ICSID Treaty (stipulating the laws applied under the Treaty) based on the understanding and intentions of each country during negotiations. be. It may seem like a purpose at first glance, but in fact, many of the interpretations of Article 42 (and perhaps the treaty in general) are more policy and ideologies than the national understanding and intentions negotiating the terms of the treaty and treaties. It is claimed that it focuses on the taste. As a result, the United States Constitution, which caused the purpose of this paper and the concept of "judge screening that judge is not interpreting the law, but the authority to impose their own policy preferences". You can find similarities between the initial movements in the academic 1. 1. How to see such aggressiveism depends on the "school" of the originalism. The current view is that "we must focus on the relevant constitutional article and test whether it is enforced according to the simple language that was originally understood." Some have a broader view that mentions the "original context", including external evidence, legislation, and relationships with other acts, "the entire constitution or amendment clause. 。 4 However, the common point that links all the principles is to deny modern ideology and public policies as appropriate legal interpretation and use historical analysis. For example, it interprets the enactment method in the relationship with the dictionary published at the time of the enactment method, or a wide range of legislative history. 6 1. The purpose of this paper is based on the interpretation of Article 42 of the ICSID Treaty (the law applied under the Treaty) based on the understanding and intention of each country during negotiations. To promote. It may seem like a purpose at first glance, but in fact, many of the interpretations of Article 42 (and perhaps the treaty in general) are more policy and ideologies than the national understanding and intentions negotiating the terms of the treaty and treaties. It is claimed that it focuses on the taste. As a result, the United States Constitution, which caused the purpose of this paper and the concept of "judge screening that judge is not interpreting the law, but the authority to impose their own policy preferences". You can find similarities between the initial movements in the academic 1. 1. How to see such aggressiveism depends on the "school" of the originalism. The current view is that "we must focus on the relevant constitutional article and test whether it is enforced according to the simple language that was originally understood." Some have a broader view that mentions the "original context", including external evidence, legislation, and relationships with other acts, "the entire constitution or amendment clause. 。 4 However, the common point that links all the principles is to deny modern ideology and public policies as appropriate legal interpretation and use historical analysis. For example, it interprets the enactment method in the relationship with the dictionary published at the time of the enactment method, or a wide range of legislative history. 61. The purpose of this paper is to promote the interpretation of Article 42 of the ICSID Treaty (the law applied under the Treaty) based on the understanding and intentions of the provisions and the terms of negotiations. be. It may seem like a purpose at first glance, but in fact, many of the interpretations of Article 42 (and perhaps the treaty in general) are more policy and ideologies than the national understanding and intentions negotiating the terms of the treaty and treaties. It is claimed that it focuses on the taste. As a result, the United States Constitution, which caused the purpose of this paper and the concept of "judge screening that judge is not interpreting the law, but the authority to impose their own policy preferences". You can find similarities between the initial movements in the academic 1. 1. How to see such aggressiveism depends on the "school" of the originalism. The current view is that "we must focus on the relevant constitutional article and test whether it is enforced according to the simple language that was originally understood." Some have a broader view that mentions the "original context", including external evidence, legislation, and relationships with other acts, "the entire constitution or amendment clause. 。 4 However, the common point that links all the principles is to deny modern ideology and public policies as appropriate legal interpretation and use historical analysis. For example, it interprets the enactment method in the relationship with the dictionary published at the time of the enactment method, or a wide range of legislative history. 6

2. Finally, in this paper, when you look at the tree and do not look at the forest, when you do not give an opinion on whether the original personality is "correct", when interpreting the ICSID Treaty, We will consider both the intention of the intentions and the preservat of the ICSID treaty. I) The ICSID Convention indicates the balance between competing for the International Investment Law and vision. II) The amendment of the ICSID Convention is an extremely complicated process that requires a uniform seven, so it is virtually impossible and accompanied by great complexity. 8 III), therefore, interpreting the ICSID in a way that is contrary to the understanding and intention of the drafting person of ICSID is likely to overturn the compromise in the ICSID article, as described below. As a result, there is a fierce conflict between ideology, political, and economic camps, and as before, they have agreed to revise the treaty. Because it is not possible and does not intend to condemn the treaty, it will force more inconsistent interpretation than ever before.

II. Original meaning, context, and the Vienna Convention on the Law of Treaties

3. As a starting point, it is worth the question: Why is the law selection important? In other words, if the law X is applied, the parties A will win, and if the law Y is applied, the parties B will win, and if the incorrect law is applied, the judgment may be canceled. That is. 9 Similarly, internationalization efforts to mainly apply international or international law, and localization efforts to apply domestic or domestic laws may not be recognized by international laws. There is also the opposite, so it is an issue. Therefore, if the application of international law is determined, the host country may be liable, but the host country may be exempted if the application of domestic law is determined. 10

4. Based on the above, it is not surprising that the ICSID Convention stipulates the problem of compliant law in Article 42: 2. Finally, in this article, look at the tree. Since the forest is not seen, there is no opinion about whether the original personality view is "correct", and when interpreting the ICSID Convention, both the intentions and the conservatives of the ICSID treaty are understanding. I will consider it. I) The ICSID Convention indicates the balance between competing for the International Investment Law and vision. II) The amendment of the ICSID Convention is an extremely complicated process that requires a uniform seven, so it is virtually impossible and accompanied by great complexity. 8 III), therefore, interpreting the ICSID in a way that is contrary to the understanding and intention of the drafting person of ICSID is likely to overturn the compromise in the ICSID article, as described below. As a result, there is a fierce conflict between ideology, political, and economic camps, and as before, they have agreed to revise the treaty. Because it is not possible and does not intend to condemn the treaty, it will force more inconsistent interpretation than ever before.
3. As a starting point, it is worth asking: Why is the law selection important? In other words, if the law X is applied, the parties A will win, and if the law Y is applied, the parties B will win, and if the incorrect law is applied, the judgment may be canceled. That is. 9 Similarly, internationalization efforts to mainly apply international or international law, and localization efforts to apply domestic or domestic laws may not be recognized by international laws. There is also the opposite, so it is an issue. Therefore, if the application of international law is determined, the host country may be liable, but the host country may be exempted if the application of domestic law is determined. 10
- 4. Based on the above, it is not surprising that the ICSID Treaty specifies the problem of compliant law in Article 42: 2. Finally, in this article, look at the woods and look at the forest. In terms of whether or not the original personality view is "correct", we do not give an opinion, and when interpreting the ICSID Convention, both the intention and the understanding of the preservatives of the ICSID treaty will be considered. I will. I) The ICSID Convention indicates the balance between competing for the International Investment Law and vision. II) The amendment of the ICSID Convention is an extremely complicated process that requires a uniform seven, so it is virtually impossible and accompanied by great complexity. 8 III), therefore, interpreting the ICSID in a way that is contrary to the understanding and intention of the drafting person of ICSID is likely to overturn the compromise in the ICSID article, as described below. As a result, there is a fierce conflict between ideology, political, and economic camps, and as before, they have agreed to revise the treaty. Because it is not possible and does not intend to condemn the treaty, it will force more inconsistent interpretation than ever before.
- 3. As a starting point, it is worth asking: Why is the law selection important? In other words, if the law X is applied, the parties A will win, and if the law Y is applied, the parties B will win, and if the incorrect law is applied, the judgment may be canceled. That is. 9 Similarly, internationalization efforts to mainly apply international or international law, and localization efforts to apply domestic or domestic laws may not be recognized by international laws. There is also the opposite, so it is an issue. Therefore, if the application of international law is determined, the host country may be liable, but the host country may be exempted if the application of domestic law is determined. 10
4. Based on the above, it is not surprising that the ICSID Treaty specifies the problem of compliant law in Article 42:
- The court determines a dispute in accordance with the laws that the parties can agree. If there is no such agreement, the court shall apply the laws of the Convention Contracting (including rules related to the law conflict) and international laws that are applied.
- The court cannot rely on the certification that there is no possibility due to the implying or ambiguity of the law.
- The provisions of paragraph (1) and (2) shall not harm the authority in which the court determines the dispute in EX Aequo et bono if the parties have agreed.
5. The first paragraph has a lot of interest, so this article focuses mainly on this paragraph. This article is roughly divided into six sections. In the first two sections, the situation is set by discussing the concept of arbitration of arbitration by discussing the consistency with the Vienna Treaty (VCLT) regarding the initial framework and the Convention on the Understanding Approach. The last four sections are the substantial part of this paper, reflecting the options of various compliant laws under Article 42 of the ICSID Treaty. In Section 1, regarding situations where the law has not been selected, in Section 2, the parties have chosen international law to discipline disputes, and in Section 3, the parties are disciplined. Regarding the situation where the method is selected, in Section 4, the parties consider the situation in which both international law and host country laws are disciplined. Finally, as a conclusion, summarize the entire papers and explain the suggestions for the future.

6. The correct approach to the interpretation of the ICSID Convention is usually in Article 31 and 32 of VCLT. Article 31 stipulates as follows:

The treaty shall be interpreted in good faith in accordance with the normal meaning given to the treaty of the Convention, in light of the intentions and the purpose and purpose of the treaty.

The context of interpreting the treaty includes the text, the priorities and the attached documents:

All agreements related to the treaty, exchanged between the entire country in connection with the conclusion of the treaty;
A document created by one or more states in relation to the conclusion of the treaty and accepting it as a treaty related to other states.

These are considered together with context:

III. The issue of arbitral activism

Subsequent agreements between the subsequent agreements on interpretation of treaty or applying the provisions;

Subsequent practice on applying the treaty to determine the agreement between the two parties regarding the interpretation of the treaty.

Related rules of international law applied to the relationship between the states.

IV. The applicable law under Article 42 in the absence of party choice

If it turns out that the contracting country has intended, the provisions should be particularly important.

7. It may be said that it is not clear how historical legal analysis is compatible with the ICSID Treaty VCLT. The treaty has never been revised, and there is no agreement between the treaty, other documents, or the interpretation of the Convention, so it is not relevant. For this reason, there is a possibility that paragraphs 1, paragraph 3 (b) to (c), and paragraph 4 may be related. In order to show the understanding of each country at the time of rising the treaty, it is possible to use the competitions of each country related to the treaty, but in reality, the investment law has the opposite view of various countries, which is extremely extreme. Because there are many controversy, it is unlikely that such attempts will bear fruit. On the other hand, it was valid when the ICSID treaty was drafted, but it could be lost in the rules of international law that could have been lost in the flow of the time, which plays a role in history. There is also. For this reason, the principle of the New International Economic Order (NIEO) is being considered. Another possibility is that history is part of the context of the treaty, but the commentators are generally limited to the context, purpose and purpose in the treaty itself. Agreement between the subsequent countries interpretation of the treaty or the application of its provisions;

Subsequent practice on applying the treaty to determine the agreement between the two parties regarding the interpretation of the treaty.

Related rules of international law applied to the relationship between the states.

If it turns out that the contracting country has intended, the provisions should be particularly important.

7. It may be said that it is not clear how historical legal analysis is compatible with the ICSID Treaty VCLT. The treaty has never been revised, and there is no agreement between the treaty, other documents, or the interpretation of the Convention, so it is not relevant. For this reason, there is a possibility that paragraphs 1, paragraph 3 (b) to (c), and paragraph 4 may be related. In order to show the understanding of each country at the time of rising the treaty, it is possible to use the competitions of each country related to the treaty, but in reality, the investment law has the opposite view of various countries, which is extremely extreme. Because there are many controversy, it is unlikely that such attempts will bear fruit. On the other hand, it was valid when the ICSID treaty was drafted, but it could be lost in the rules of international law that could have been lost in the flow of the time, which plays a role in history. There is also. For this reason, the principle of the New International Economic Order (NIEO) is being considered. Another possibility is that history is part of the context of the treaty, but the commentators are generally limited to the context, purpose and purpose in the treaty itself. Agreement between the subsequent agreements on interpretation of the text treaty or the application of its provisions;

IV.A. The discretionary approach to applicable law in the absence of party choice

Subsequent practice on applying the treaty to determine the agreement between the two parties regarding the interpretation of the treaty.

Related rules of international law applied to the relationship between the states.

If it turns out that the contracting country has intended, the provisions should be particularly important.
7. It may be said that it is not clear how historical legal analysis is compatible with the ICSID Treaty VCLT. The treaty has never been revised, and there is no agreement between the treaty, other documents, or the interpretation of the Convention, so it is not relevant. For this reason, there is a possibility that paragraphs 1, paragraph 3 (b) to (c), and paragraph 4 may be related. In order to show the understanding of each country at the time of rising the treaty, it is possible to use the competitions of each country related to the treaty, but in reality, the investment law has the opposite view of various countries, which is extremely extreme. Because there are many controversy, it is unlikely that such attempts will bear fruit. On the other hand, it was valid when the ICSID treaty was drafted, but it could be lost in the rules of international law that could have been lost in the flow of the time, which plays a role in history. There is also. For this reason, the principle of the New International Economic Order (NIEO) is being considered. Another possibility is that history is part of the context of the treaty, but the commentators are generally limited to the context, purpose and purpose in the treaty itself. Text
8. However, historical legal analysis can play an important role in the concept of fait h-an d-sincerity in Article 31 of VCLT. Because it is "prevention of literally interpretation of terms, and it helps to determine the reliance on the interpretation in Article 32" 12. 12 This is a source like Travaux. Also includes. Another commentary pointed out that religious sincere requires "basic requirements of rationality that meets the requirements of teachingism that can be caused by purely or, on the contrary, or excessively intended analysis." There is. 13 Sincerity is from a dogmatic ideology perspective (whether it is a parent state, a parent investor, or a completely different one). In some cases, use Article 31 to ignore the travaux and the auxiliary means of interpretation, which indicates a different direction from the desired result. Historical legal analysis may also play a role in proving the normal meaning of the treaty. An international court often draws dictionaries, just as a US court, which applies the original approach, draws a dictionary published at the time of the enactment when interpreting the provisions.
9. VCLT Article 32 stipulates as follows:
When the meaning is ambiguous or unclear ή

Obviously obviously obvious or irrational results. 8. However, historical legal analysis can play an important role in the concept of fait h-an d-sincerity in Article 31 of VCLT. Because it is "prevention of literally interpretation of terms, and it helps to determine the reliance on the interpretation in Article 32" 12. 12 This is a source like Travaux. Also includes. Another commentary pointed out that religious sincere requires "basic requirements of rationality that meets the requirements of teachingism that can be caused by purely or, on the contrary, or excessively intended analysis." There is. 13 Sincerity is from a dogmatic ideology perspective (whether it is a parent state, a parent investor, or a completely different one). In some cases, use Article 31 to ignore the travaux and the auxiliary means of interpretation, which indicates a different direction from the desired result. Historical legal analysis may also play a role in proving the normal meaning of the treaty. An international court often draws dictionaries, just as a US court, which applies the original approach, draws a dictionary published at the time of the enactment when interpreting the provisions.

9. VCLT Article 32 stipulates as follows:

IV.B. International law as applicable only in the case of lacunae or conflict with domestic law

When the meaning is ambiguous or unclear ή

Obviously obviously obvious or irrational results. 8. However, historical legal analysis can play an important role in the concept of fait h-an d-sincerity in Article 31 of VCLT. Because it is "prevention of literally interpretation of terms, and it helps to determine the reliance on the interpretation in Article 32" 12. 12 This is a source like Travaux. Also includes. Another commentary pointed out that religious sincere requires "basic requirements of rationality that meets the requirements of teachingism that can be caused by purely or, on the contrary, or excessively intended analysis." There is. 13 Sincerity is from a dogmatic ideology perspective (whether it is a parent state, a parent investor, or a completely different one). In some cases, use Article 31 to ignore the travaux and the auxiliary means of interpretation, which indicates a different direction from the desired result. Historical legal analysis may also play a role in proving the normal meaning of the treaty. An international court often draws dictionaries, just as a US court, which applies the original approach, draws a dictionary published at the time of the enactment when interpreting the provisions.

9. VCLT Article 32 stipulates as follows:

When the meaning is ambiguous or unclear ή

IV.B.1. The problem posed by the UPICC and other transnational legal instruments

Obviously obviously obvious or irrational results.

10. In other words, "preparation work has only an auxiliary role in the interpretation of the treaty. The preparation work is to show the interpretation function only after the application of the general rule, that is, after the entire Article 31 as a whole. It is. " 15 As a result, Article 32 is a travaux for "inferior" 16, and as a result, Travou is basically used only as a last resort, contradicting or arguing with the application of Article 31. The view was born. 17 However, as pointed out in recent research, this view has a defect, and the interpretation of the treaty should start in Article 31, but VCLT's drooling is strict between Article 31 and 32. He did not impose a rank or hostile to the use of traves. In fact, VCLT's drooling person believes that "the interpreted person should rely on the history of braking in the case of reasonable questions in order to clarify the meaning of this article." Rather than being disliked, Travou was expected to be part of the interpretation. " Therefore, even if Travou is a mere interpretation auxiliary means, it is not hierarchical than the interpretation of the interpretation in Article 31, but the interpretation caused by applying Article 31. It can be used to fix and should be used. 10. In other words, "preparation work has only an auxiliary role in the interpretation of the treaty. The preparatory work is exerted only after the application of the general rule, that is, after the entire Article 31, the interpretation function. I'm supposed to do it. " 15 As a result, Article 32 is a travaux for "inferior" 16, and as a result, Travou is basically used only as a last resort, contradicting or arguing with the application of Article 31. The view was born. 17 However, as pointed out in recent research, this view has a defect, and the interpretation of the treaty should start in Article 31, but VCLT's drooling is strict between Article 31 and 32. He did not impose a rank or hostile to the use of traves. In fact, VCLT's drooling person believes that "the interpreted person should rely on the history of braking in the case of reasonable questions in order to clarify the meaning of this article." Rather than being disliked, Travou was expected to be part of the interpretation. " Therefore, even if Travou is a mere interpretation auxiliary means, it is not hierarchical than the interpretation of the interpretation in Article 31, but the interpretation caused by applying Article 31. It can be used to fix and should be used. 10. In other words, "preparation work has only an auxiliary role in the interpretation of the treaty. The preparation work is to show the interpretation function only after the application of the general rule, that is, after the entire Article 31 as a whole. It is. " 15 As a result, Article 32 is a travaux for "inferior" 16, and as a result, Travou is basically used only as a last resort, contradicting or arguing with the application of Article 31. The view was born. 17 However, as pointed out in recent research, this view has a defect, and the interpretation of the treaty should start in Article 31, but VCLT's drooling is strict between Article 31 and 32. He did not impose a rank or hostile to the use of traves. In fact, VCLT's drooling person believes that "the interpreted person should rely on the history of braking in the case of reasonable questions in order to clarify the meaning of this article." Rather than being disliked, Travou was expected to be part of the interpretation. " Therefore, even if Travou is a mere interpretation auxiliary means, it is not hierarchical than the interpretation of the interpretation in Article 31, but the interpretation caused by applying Article 31. It can be used to fix and should be used.

11. The secondary things necessary for the purpose of this article to promote the original meaning and return to context the ICSID Treaty are often "judicial courts, which are composed of arbitration based on this treaty. Or, or indicate that they are involved in "arbitration" activity. According to Black's Black's Dictionary, "Judicial Activityism is a philosophy of judicial judgment that" judges reflect personal opinions in public policies, especially in other factors, among other factors. Supporters tend to recognize violations of the Constitution, and they are willing to ignore the questions and precedents that have become a problem. " "20 The arbitrator is not a judge, but there are many sam e-behavioral standards, such as judging disputes in accordance with laws, fairness, and independence, not personal preferences, but not personal preference. 22 Therefore, it is possible to think that the arbitrator can become an activist, just as the judge can become an activist. "This is because the ruling does not agree to the judge's opinion, which does not agree to the judge who agree with such a judgment. This is because there is a temptation to not criticize. 11. The sid e-b y-side things necessary for the purpose of this article to promote the original meaning of the ICSID Convention and the return to context is often the arbitration of arbitration based on this treaty. It indicates that they are involved in "judicial" or "arbitration" activity. According to Black's Black's Dictionary, "Judicial Activityism is a philosophy of judicial judgment that" judges reflect personal opinions in public policies, especially in other factors, among other factors. Supporters tend to recognize violations of the Constitution, and they are willing to ignore the questions and precedents that have become a problem. " "20 The arbitrator is not a judge, but there are many sam e-behavioral standards, such as judging disputes in accordance with laws, fairness, and independence, not personal preferences, but not personal preference. 22 Therefore, it is possible to think that the arbitrator can become an activist, just as the judge can become an activist. "This is because the ruling does not agree to the judge's opinion, which does not agree to the judge who agree with such a judgment. This is because there is a temptation to not criticize. 11. The secondary things necessary for the purpose of this article to promote the original meaning and return to context the ICSID Treaty are often "judicial courts, which are composed of arbitration based on this treaty. Or, or indicate that they are involved in "arbitration" activity. According to Black's Black's Dictionary, "Judicial Activityism is a philosophy of judicial judgment that" judges reflect personal opinions in public policies, especially in other factors, among other factors. Supporters tend to recognize violations of the Constitution, and they are willing to ignore the questions and precedents that have become a problem. " "20 The arbitrator is not a judge, but there are many sam e-behavioral standards, such as judging disputes in accordance with laws, fairness, and independence, not personal preferences, but not personal preference. 22 Therefore, it is possible to think that the arbitrator can become an activist, just as the judge can become an activist. "This is because the ruling does not agree to the judge's opinion, which does not agree to the judge who agree with such a judgment. This is because there is a temptation to not criticize.

12. Fortunately, it is possible to avoid these challenges by adopting the Travaux préparatoire of the ICSID Convention as a guide. If the arbitral tribunal's decision can be reconciled with the Travaux préparatoire of the ICSID Convention, it cannot be accused of arbitration activism, whether general or not. On the other hand, if it is irreconcilable with or inconsistent with the Travaux préparatoire, it may be legitimately accused of arbitration activism. In cases where Travaux is ambiguous, such as whether international law prevails over domestic law in investment disputes, reference can be made to other contemporary sources or developments in international law that are consistent with Travaux and that the drafters were aware of. For this, reference is made to the NIEO.

IV.B.2. What amounts to a conflict between international and domestic law?

13. It is also important to clarify that the intention of the treaty framers is not necessarily equal to superiority or "activeness," and that "activeness" is not the same as "evolution." Legal theories certainly evolve over time, and as a result, they may move in directions that their ancestors did not anticipate. However, evolution remains an evolution from existing characteristics and features of existing organisms (in this case legal principles), not from "gene splicing" where genes from a totally different source or our policies and legal norms are artificially inserted into the original organism or legal norms. 26 We can equate arbitrators' activism, or acting contrary to the understanding and intentions of the contract's drafters, with "geneticating," where arbitrators artificially insert their preferred policies into existing legal rules and institutions, without changing the rules and institutions themselves or the drafters' understanding of them.

14. To properly frame this discussion, it is appropriate to present Article 42 in its original form:

IV.B.3. How should an ICSID tribunal resolve a genuine conflict between domestic and international law?

In the absence of agreement between the parties on the applicable law and claims, the participants have given the arbitral tribunal the power to determine SX […] aequo et bono, and the arbitral tribunal shall decide the dispute submitted to it in accordance with the rules of law, whether domestic or international, that it decides to apply. 27

15. This formula can be seen that if there is no selection of the application method, it will leave the discretionary right to the arbitration in the decision. This interpretation can also be confirmed in the comments of Alon Brash on the ICSID Convention on the Book. Brox said that the parties should have chosen the compliant method, otherwise that the arbitration was determined if they were not, 28. 28 This provision was understood by others. "If there is no agreement on this problem, arbitrators must choose whether to apply to domestic or international law if there is no agreement on this problem. Restructed the entire party, "The rules that may be applied by the domestic law, international law, or court of" Article 4, Paragraph 1, or the Court of Court. Everything is applied. " "30

16. However, the provisions of this version have been considered considerably from each country, especially developing countries. Mr. Tsai argued that "domestic laws will first apply unless there is an opposite agreement." 31 India's legislative adaccar also agreed to the amendment and further stated: "The treaty should cover most of the majority of investment, which intends to actually comply with the national law where the investment is located. In that case, in that case. Unless the opposite statement is made, domestic laws in the country should be given priority.

IV.B.4. The ICSID Convention, Decolonization, and the New International Economic Order

17. Most of the representatives related to Article 4, Paragraph 1 have determined that this provision is basically accepted as drafts, but the same objection continued in the latter half of the discussion. However, this position has changed over time, as legal experts in other countries began to oppose the provisions of the draft. For example, legal professionals such as Brazil, Yugoslavia 35, Ceylon 36, Indian 37, India 38, all opposed, and alleged that the host country law would be applied without eliminating international law. Other experts also commented on the same. 40 15. It can be seen that this formula will leave the discretionary right to the arbitration if there is no choice of applicable method. This interpretation can also be confirmed in the comments of Alon Brash on the ICSID Convention on the Book. Brox said that the parties should have chosen the compliant method, otherwise that the arbitration was determined if they were not, 28. 28 This provision was understood by others. "If there is no agreement on this problem, arbitrators must choose whether to apply to domestic or international law if there is no agreement on this problem. Restructed the entire party, "The rules that may be applied by the domestic law, international law, or court of" Article 4, Paragraph 1, or the Court of Court. Everything is applied. " "30

16. However, the provisions of this version have been considered considerably from each country, especially developing countries. Mr. Tsai argued that "domestic laws will first apply unless there is an opposite agreement." 31 India's legislative adaccar also agreed to the amendment and further stated: "The treaty should cover most of the majority of investment, which intends to actually comply with the national law where the investment is located. In that case, in that case. Unless the opposite statement is made, domestic laws in the country should be given priority.
17. Most of the representatives related to Article 4, Paragraph 1 have determined that this provision is basically accepted as drafts, but the same objection continued in the latter half of the discussion. However, this position has changed over time, as legal experts in other countries began to oppose the provisions of the draft. For example, legal professionals such as Brazil, Yugoslavia 35, Ceylon 36, Indian 37, India 38, all opposed, and alleged that the host country law would be applied without eliminating international law. Other experts also commented on the same. 4015. It can be seen that this formula is left to the arbitration of the discretion in the decision if there is no choice of application method. This interpretation can also be confirmed in the comments of Alon Brash on the ICSID Convention on the Book. Brox said that the parties should have chosen the compliant method, otherwise that the arbitration was determined if they were not, 28. 28 This provision was understood by others. "If there is no agreement on this problem, arbitrators must choose whether to apply to domestic or international law if there is no agreement on this problem. Restructed the entire party, "The rules that may be applied by the domestic law, international law, or court of" Article 4, Paragraph 1, or the Court of Court. Everything is applied. " "30
16. However, the provisions of this version have been considered considerably from each country, especially developing countries. Mr. Tsai argued that "domestic laws will first apply unless there is an opposite agreement." 31 India's legislative adaccar also agreed to the amendment and further stated: "The treaty is ... most of the investment aspects of investment should be covered in most cases that intended to comply with the national law where the investment is located. In that case, in that case. Unless the opposite statement is made, the domestic law of the country should be prioritized.
17. Most of the representatives related to Article 4, Paragraph 1 have determined that this provision is basically accepted as drafts, but the same objection continued in the latter half of the discussion. However, this position has changed over time, as legal experts in other countries began to oppose the provisions of the draft. For example, legal professionals such as Brazil, Yugoslavia 35, Ceylon 36, Indian 37, India 38, all opposed, and alleged that the host country law would be applied without eliminating international law. Other experts also commented on the same. 40

18. As a result of these constant opposition, Chairman Aron Brash proposed a change in the text (in line with the current article) and was "adopted by 35 to 1 in favor." 41 As the changes in the language in this clause and all of the above comments, the broker in the treaty have the discretion of determining whether the ICSID arbitration is appropriate for domestic or international law. He refused to think.

19. However, there is also an approach that has been interpreted in Article 42, Paragraph 1 in the form of "giving freedom to adopt domestic law or international law rules that arbitrators consider it appropriate" is developed 42. 42 is the 42 problem. The discretionary approach is still dominant. In 43, how can we explain that it deviates fundamentally from the obvious understanding of the ICSID Convention's brigader? This problem is the meaning of "and" in the Washington Treaty of Article 42, Paragraph 1 (2) of the "Washington Treaty, Paragraph 1, Paragraph 1, Paragraph 1, (2) of the" EMMANUEL GAILLARD) and Yas Banifatemi, the main papers that propose discretionary approaches. The role of the international law in the selection process (The Meaning of 'IND' INARTICLE 42 (1), Second Sentence of the Washington Conversion It is an error in the framework of discussion by Rocess) 。 44 In order to support the view that the parties have not selected the application method, the arbitration has a "discretion of the law that considers it is appropriate for dominating specific problems". We are thoroughly studying research reports and related arbitration. 45
20. This view is a statement of Aaron Bropsty that the provisions of Article 42 "maintained the freedom of the court to apply international law" 46 and "in the history of the treaty, the host country law in the treaty of the treaty. It seems that it is impossible to try to find a clear background that limits the role of international law, "it is clearly justified by some other statements of Toravo, which came to conclude. It is done. "But 47, no author has acknowledged the author's statements that emphasized that the Allon Brox and other authors emphasized that the dispute would be solved by referring to the host country law. This is not an explanation that the author's intentions are much more important than the author's papers. The series of events that led to the current form of the treaty is as follows:

The initial proposal was thought to allow arbitrators to apply for any international law or state law.

Many legal experts have recognized such discretion and claimed to apply the state sponsoring law, opposing the draft.
Nevertheless, the draft was maintained and mentioned the discretion of the arbitration.

There was an objection to the discretion of the arbitrator, and he felt that the host national law was not properly emphasized, so the chairman had to correct his draft in the current way, contrary to his opinion. and

This amendment was approved in an overwhelming number of support, including legal experts who opposed the draft. 20. This view is a statement of Aaron Brochsu that the provisions of Article 42 "maintained the freedom of the court to apply international law" 46 and "The Host Country Law in the Treaty of Treaty. It seems that it is impossible to find a clear background that restricts the role of international law that is complemented or corrected, and it is clear by some other statements in Torabe, who came to conclude. Is justified. "But 47, no author has acknowledged the author's statements that emphasized that the Allon Brox and other authors emphasized that the dispute would be solved by referring to the host country law. This is not an explanation that the author's intentions are much more important than the author's papers. The series of events that led to the current form of the treaty is as follows:

The initial proposal was thought to allow arbitrators to apply for any international law or state law.
Many legal experts have recognized such discretion and claimed to apply the state sponsoring law, opposing the draft.
Nevertheless, the draft was maintained and mentioned the discretion of the arbitration.

This amendment was approved in an overwhelming number of support, including legal experts who opposed the draft. 20. This view is a statement of Aaron Bropsty that the provisions of Article 42 "maintained the freedom of the court to apply international law" 46 and "in the history of the treaty, the host country law in the treaty of the treaty. It seems that it is impossible to try to find a clear background that limits the role of international law, "it is clearly justified by some other statements of Toravo, which came to conclude. It is done. "But 47, no author has acknowledged the author's statements that emphasized that the Allon Brox and other authors emphasized that the dispute would be solved by referring to the host country law. This is not an explanation that the author's intentions are much more important than the author's papers. The series of events that led to the current form of the treaty is as follows:

The initial proposal was thought to allow arbitrators to apply for any international law or state law.

Many legal experts have recognized such discretion and claimed to apply the state sponsoring law, opposing the draft.

Nevertheless, the draft was maintained and mentioned the discretion of the arbitration.

This amendment was approved in an overwhelming number of support, including legal experts who opposed the draft.

21. In this context, it is clear that the rewriting of Article 42 in its current form was intended to remove the arbitrator’s discretion in applying international law or the law of the host State. This is evident from Alon Brosch’s explanation that “the final provision on international law (which applies in cases of gaps in domestic law and in cases of inconsistency between the two) was adopted by a majority of 24 votes to 6.”49 Gaillard and Banifatemi argue that this does not mean that international law applies only when there is a contradiction between international law and domestic law or when there is a gap in domestic law. 50 However, their argument on this point is puzzling. They seem to want to say that since the idea of limiting the application of international law only to gaps and also to contradictions was rejected, it cannot have been intended to apply international law only to gaps and contradictions. 51 This is not logical, since allowing the application of international law when there are gaps or contradictions with international law is different from proposing to allow it only to contradictions or only to gaps. Furthermore, they refer to the statement that the Court may apply the law of the host State "not only to the rules of international law".

22. GAILLARD and BANIFATEMI not only acknowledge the discretion of the law, but also proposes that the court should be able to directly apply international law "without confirming the law of the acceptance country". 。 "This means that if the ICSID court ignores the state law and considers it appropriate, it can simply determine that it can be applied directly to international law. The rules of the law, like the law of the acceptance, can apply two rules to be applied to each law, and in accordance with the status of the case. "For example," Aron Broches is "in the first instance, even though the relationship between the investor and the acceptance country is dominated by the country," It must be done. 55. For example, a paper written by Georges DelauMe in 1966 explains that "most of the elements that are applicable to the compliant law are the compliant law." 22. GAILLARD and BANIFATEMI suggest not only the discretion of the law, but also the court should be able to directly apply international law "without confirming the law of the acceptance country". 53. "This means that if the ICSID court ignores the state law and considers it appropriate, it can simply determine that it can be applied directly to international law. The rules of the law, like the law of the acceptance, can apply two rules to be applied to each law, and in accordance with the status of the case. "For example," Aron Broches is "in the first instance, even though the relationship between the investor and the acceptance country is dominated by the country," It must be done. 55. For example, a paper written by Georges DelauMe in 1966 explains that "most of the elements that are applicable to the compliant law are the compliant law." 22. GAILLARD and BANIFATEMI not only acknowledge the discretion of the law, but also proposes that the court should be able to directly apply international law "without confirming the law of the acceptance country". 。 "This means that if the ICSID court ignores the state law and considers it appropriate, it can simply determine that it can be applied directly to international law. The rules of the law, like the law of the acceptance, can apply two rules to be applied to each law, and in accordance with the status of the case. "For example," Aron Broches is "in the first instance, even though the relationship between the investor and the acceptance country is dominated by the country," It must be done. 55. For example, a paper written by Georges DelauMe in 1966 explains that "most of the elements that are applicable to the compliant law are the compliant law."

23. The view that international laws based on the ICSID Treaty are applied only when there is a gap or when domestic law conflicts with international law, is led by the clockner destruction. According to the ruling, the international law states that "a double role, that is, a supplementary role (if there is a" gap "in the law of the country))" and "the principle of international law in terms of the law of the country. 59, which was said to have a "rescue role when it was not matched". 59 Basically, in contrast to discretionary views, this view is that the international law can only be activated after the relevant rules of the partner national law are enacted and applied. 60 Furthermore, this case has denied the possibility that the arbitration court may make a decision based on the "Rules" or the Principles of International Law. 61 However, this precedent does not clearly explain what is equivalent to a "mortality" between domestic and international law. Is it necessary to have a dispute, no matter how small differences between domestic law and international law, or do you need something more? The final provisions of international law (those that can be applied in the case of both domestic laws and if there are contradictions between them) were adopted by 24 to 6. The answer to this question seems easy. 62

IV.B.5. How should ICSID tribunals resolve genuine conflicts between international and host State law - Conclusion

24. However, Michael Riceman claims that the words in parentheses are added by the recorder of the conference and not the actual word of Alon Bropsts. 63 He said, "This word and" repeatedly stated the adopted principles, and if the domestic law of the host country is "inconsistent", the international law can be applied. He pointed out that there was a clear contradiction between the remarks of Alon Brochs, which explained the advantages of 64, and the other books of Brash. Riceman's claims are persuasive, as 65 Aaron Brash's remarks, subsequent works, and words in parentheses mentioned above seem to be inconsistent. 23. The view that international laws based on the ICSID Convention are applied only when there is a gap or when domestic law conflicts with international law, is led by the clocker's discard. According to the ruling, the international law states that "a double role, that is, a supplementary role (if there is a" gap "in the law of the country))" and "the principle of international law in terms of the law of the country. 59, which was said to have a "rescue role when it was not matched". 59 Basically, in contrast to discretionary views, this view is that the international law can only be activated after the relevant rules of the partner national law are enacted and applied. 60 Furthermore, this case has denied the possibility that the arbitration court may make a decision based on the "Rules" or the Principles of International Law. 61 However, this precedent does not clearly explain what is equivalent to a "mortality" between domestic and international law. Is it necessary to have a dispute, no matter how small differences between domestic law and international law, or do you need something more? The final provisions of international law (those that can be applied in the case of both domestic laws and if there are contradictions between them) were adopted by 24 to 6. The answer to this question seems easy. 62

IV.B.6. What constitutes a lacuna in domestic law?

24. However, Michael Riceman claims that the words in parentheses are added by the recorder of the conference and not the actual word of Alon Bropsts. 63 He said, "This word and" repeatedly stated the adopted principles, and if the domestic law of the host country is "inconsistent", the international law can be applied. He pointed out that there was a clear contradiction between the remarks of Alon Brochs, which explained the advantages of 64, and the other books of Brash. Riceman's claims are persuasive, as 65 Aaron Brash's remarks, subsequent works, and words in parentheses mentioned above seem to be inconsistent. 23. The view that international laws based on the ICSID Treaty are applied only when there is a gap or when domestic law conflicts with international law, is led by the clockner destruction. According to the ruling, the international law states that "a double role, that is, a supplementary role (if there is a" gap "in the law of the country))" and "the principle of international law in terms of the law of the country. 59, which was said to have a "rescue role when it was not matched". 59 Basically, in contrast to discretionary views, this view is that the international law can only be activated after the relevant rules of the partner national law are enacted and applied. 60 Furthermore, this case has denied the possibility that the arbitration court may make a decision based on the "Rules" or the Principles of International Law. 61 However, this precedent does not clearly explain what is equivalent to a "mortality" between domestic and international law. Is it necessary to have a dispute, no matter how small differences between domestic law and international law, or do you need something more? The final provisions of international law (those that can be applied in the case of both domestic laws and if there are contradictions between them) were adopted by 24 to 6. The answer to this question seems easy. 62

25. Reisman's argument stems from his view that the mere existence of a conflict between domestic and international law is not enough to justify the Court of Justice in applying international law. Reisman points out that "the test is not ... conflict, but whether applying the law of a State Party would violate something fundamental in international law."67 As examples of such norms, Reisman lists the right to life, the prohibition of torture, the prohibition of slavery, and the prohibition of imprisonment for treaty violations. However, this view is in contradiction with Travo, since Aron's pamphlet makes it clear that the relevant principles of international law include not only applicable treaties, but also principles such as good faith and Pacta Sunt Servanda. 69 All of these are well below the high bar of jus cogens, such as the prohibition of slavery and the prohibition of torture, which Reisman lists as examples of applicable principles of international law. Brosch further expands the principles of international law applicable under the Convention, explaining that international law should be interpreted in the same sense as Article 38, paragraph 1, of the Statute of the International Court of Justice.

26. The broad definition of international law under the ICSID Convention raises questions regarding the default application of host state law, given the proliferation of international legal instruments in the decades since the Convention was negotiated. This issue is illustrated by the UNIDROIT Principles of International Commercial Contracts (UPICC).

V. International law as the sole law selected by the parties

27. UPICC has been claimed that it consists of a general principle of laws that can be applied to the ruling of the case of the International Investment Court. For this reason, 73 caused a strange situation in which the investment mediated court rejected the interpretation of the interpretation of the country's own country law and was against the principle of UNDRO. Many other investment court courts also mention the UNDROO's principle in the form of affecting the results of the incident, but these court courts are based on what grounds of UNDROOs. I often do not explain if I mentioned. A rare example is that the court is described as a general principle of the law, the "international law and universal principles" 76, or simply "international law". The problem of classification of Unidroit as an international law is that some of the IT conflict with the amendment of other international contract law, and some of the rules contained in it are existing laws. It is not a practical one, but a mere "good rule" 79 formulated by the creator of the principle, violating the laws that are widely used and highly valued.

VI. Municipal law as the sole law selected by the parties

28. For example, UNIDROIT principles include the concept of faith and hardships, but there are no British laws, and there are 80 systems derived from British law. If the court's decision to apply UPICC as an international law is correct, the investment court, which considers investment disputes raised by the UK as a defendant, is in England and Wales, so that the British law is applied. You will be able to overwrite the British contract law and introduce the concept of honest and hardships in the UPICC dispute. Considering that the English law is widely used as described above, it seems strange to suggest that the British law is inconsistent with the international law and thus it should be determined through the application of UPICC. 27. UPICC has been claimed that it constitutes the general principle of laws that can be applied to the ruling of the case of the International Investment Court. For this reason, 73 caused a strange situation in which the investment mediated court rejected the interpretation of the interpretation of the country's own country law and was against the principle of UNDRO. Many other investment court courts also mention the UNDROO's principle in the form of affecting the results of the incident, but these court courts are based on what grounds of UNDROOs. I often do not explain if I mentioned. A rare example is that the court is described as a general principle of the law, the "international law and universal principles" 76, or simply "international law". The problem of classification of Unidroit as an international law is that some of the IT conflict with the amendment of other international contract law, and some of the rules contained in it are existing laws. It is not a practical one, but a mere "good rule" 79 formulated by the creator of the principle, violating the laws that are widely used and highly valued.

VI.A. Host State law as the chosen law

28. For example, UNIDROIT principles include the concept of faith and hardships, but there are no British laws, and there are 80 systems derived from British law. If the court's decision to apply UPICC as an international law is correct, the investment court, which considers investment disputes raised by the UK as a defendant, is in England and Wales, so that the British law is applied. You will be able to overwrite the British contract law and introduce the concept of honest and hardships in the UPICC dispute. Considering that the English law is widely used as described above, it seems strange to suggest that the British law is inconsistent with the international law and thus it should be determined through the application of UPICC. 27. UPICC has been claimed that it consists of a general principle of laws that can be applied to the ruling of the case of the International Investment Court. For this reason, 73 caused a strange situation in which the investment mediated court rejected the interpretation of the interpretation of the country's own country law and was against the principle of UNDRO. Many other investment court courts also mention the UNDROO's principle in the form of affecting the results of the incident, but these court courts are based on what grounds of UNDROOs. I often do not explain if I mentioned. A rare example is that the court is described as a general principle of the law, the "international law and universal principles" 76, or simply "international law". The problem of classifying the principle of Unidroit as an international law is that some of the IT conflict with the amendment of other international contract law, and some of the rules contained in it are existing. It is not a practical one, but a mere "good rule" 79 formulated by the creator of the principle, violating the laws that are widely used and highly valued.

29. This situation is not unique to the UPICC, but can also arise in relation to other international legal instruments, such as the UN Convention on Contracts for the International Sale of Goods, 82 the Principles of European Contract Law, 83 (and its successor, the Draft Common Framework of Reference), 84 or the Principles of Latin American Contract Law. 85 Indeed, problems can arise not only in contract law but also in civil procedure, for example, if a party argues that the procedure in a national court is not in line with international best practice and invokes the ALI/UNIDROIT Principles of Transnational Civil Procedure, which are a standard for the "adjudication of transnational commercial disputes (but are equally appropriate for the resolution of most other civil disputes)". 86 The use of transnational legal instruments in this way, which was not foreseen by the drafters of the ICSID Convention, tends to undermine the importance of state sovereignty as well as host state law, as it significantly narrows the scope of state action. States cannot now even in theory regulate their contract law or civil procedure in a way that affects international investors without taking into account non-binding legal instruments that purport to reflect the general principles of international law. Needless to say, during the negotiation of the ICSID Convention, it was never suggested that a State could be held liable under the Convention for the failure of its contract law or civil procedure rules to conform to the alleged international standards. 29. This situation is not unique to the UPICC, but can also arise in relation to other international legal instruments, such as the UN Convention on Contracts for the International Sale of Goods, 82 the Principles of European Contract Law83 (and its successor, the Draft Common Framework of Reference), 84 or the Principles of Latin American Contract Law. 85 Indeed, if a party, for example, argues that the procedure in its national courts does not conform to international best practice and invokes the ALI/UNIDROIT Principles on Transnational Civil Procedure, problems may arise not only with respect to contract law but also with respect to civil procedure. The ALI/UNIDROIT Civil Procedure Principles are the standard for "the adjudication of cross-border commercial disputes (but equally appropriate for the resolution of most other civil disputes)."86 The use of cross-border instruments in this way, which was not foreseen by the drafters of the ICSID Convention, tends to undermine the importance of host state law as well as state sovereignty, since it significantly narrows the scope of State action. States cannot now even in theory regulate their own contract law or civil procedure in a way that affects international investors without taking into account non-binding legal instruments that purport to reflect general principles of international law. Needless to say, during the negotiation of the ICSID Convention, it was never suggested that a State could be held liable under the Convention for the failure of its own contract law or rules of civil procedure to conform to the alleged international standards. 29. This situation is not unique to the UPICC, but can also arise in relation to other international legal instruments, such as the UN Convention on Contracts for the International Sale of Goods, 82 the Principles of European Contract Law, 83 (and its successor, the Draft Common Framework of Reference), 84 or the Principles of Latin American Contract Law. 85 Indeed, problems can arise not only in contract law but also in civil procedure, for example, if a party argues that the procedure in a national court is not in line with international best practice and invokes the ALI/UNIDROIT Principles of Transnational Civil Procedure, which are a standard for the "adjudication of transnational commercial disputes (but are equally appropriate for the resolution of most other civil disputes)". 86 The use of transnational legal instruments in this way, which was not foreseen by the drafters of the ICSID Convention, tends to undermine the importance of state sovereignty as well as host state law, as it significantly narrows the scope of state action. States cannot now even in theory regulate their own contract law or civil procedure in a way that affects international investors without taking into account non-binding legal instruments that purport to reflect general principles of international law. Needless to say, during the negotiations of the ICSID Convention, it was never suggested that a State could be held liable under the Convention for the failure of its contract law or civil procedure rules to conform to alleged international standards.

30. This problem is that this kind of act is not an international legal means, so that there is no international law on contract, and no one seriously claims that there is an international civil litigation law. It can be solved by recognizing that. These issues are not simply the domain of international law, but in the domestic law. That is why these documents are composed of provisions drawn from various countries in various countries and completely new "best practices" rules. If the legal system is different, it is no wonder that there is a legal document that contradicts each other in some respects, given that the rules for the matters covered by these documents, such as contracts and civil lawsuits, are different. 88 Matters covered in international customs and the general principles of the law are referred to in Travo, such as honesty, Pactor Sunto Servanda, or the minimum treatment for foreign investors. 。 By adopting this through the media, it is possible to avoid the edges of Riceman, which are too narrow, regardless of the application international law, and edges of writers and court who accept international laws as international law. The problem is that this kind of action is an international law, so that there is no international law on contracts 87, and there is no one who seriously claims that there is an international civil litigation law. It can be solved by recognizing that it is not a means. These issues are not simply the domain of international law, but in the domestic law. That is why these documents are composed of provisions drawn from various countries in various countries and completely new "best practices" rules. If the legal system is different, it is no wonder that there is a legal document that contradicts each other in some respects, given that the rules for the matters covered by these documents, such as contracts and civil lawsuits, are different. 88 Matters covered in international customs and the general principles of the law are referred to in Travo, such as honesty, Pactor Sunto Servanda, or the minimum treatment for foreign investors. 。 By adopting this through the media, it is possible to avoid the edges of Riceman, which are too narrow, regardless of the application international law, and edges of writers and court who accept international laws as international law. State 30. This issue is 87 and there is no international law, and there is no one who seriously claims that there is an international civil litigation law, in fact, this kind of act is an international legal means. It can be solved by recognizing that there is no. These issues are not simply the domain of international law, but in the domestic law. That is why these documents are composed of provisions drawn from various countries in various countries and completely new "best practices" rules. If the legal system is different, it is no wonder that there is a legal document that contradicts each other in some respects, given that the rules for the matters covered by these documents, such as contracts and civil lawsuits, are different. 88 Matters covered in international customs and the general principles of the law are referred to in Travo, such as honesty, Pactor Sunto Servanda, or the minimum treatment for foreign investors. 。 By adopting this through the media, it is possible to avoid the edges of Riceman, which are too narrow, regardless of the application international law, and edges of writers and court who accept international laws as international law. Nation

31. Although going too far, Reisman is clearly right to insist that an actual conflict, not just a contradiction, between international and domestic law is necessary to justify the Tribunal's jurisdiction to apply international law. This follows from his rejection of the draft, which explicitly limits the application of international law to cases of conflict. He suggests that it is first necessary to prove that there is an actual conflict between international and domestic law. There may simply be a discrepancy between the two sources of law, or domestic law may have the means to resolve such discrepancies before they become a conflict. For example, some States may directly apply international law, and in the event of a discrepancy between international and domestic law, the former takes precedence. In such cases, the Tribunal should carefully analyze the relevant domestic law to ensure that i) it shows the direct application of international law and ii) that it does so in the circumstances before the Tribunal. 90 If these conditions are met, the Tribunal may apply international law even if it conflicts with domestic law.

32. Another mechanism is to try to interpret domestic law to be consistent with international law, despite the discrepancy. This method of interpretation exists in a wide range of legal systems, 91 and in a particularly strong form in relation to the European Convention on Human Rights (ECHR), which in the UK is implemented through the Human Rights Act (HRA). 92 As stipulated in Article 3 of the Act, "So far as possible, primary and subordinate laws shall be read and given effect in a manner consistent with Convention rights". If such a rule of interpretation exists in the applicable host state law, the Court may use it to resolve any alleged inconsistency between the two. Only if none of these possibilities are open to the Court, or if, even after applying them, there is still a conflict between host state and international law, can there be a conflict between national and international law.

33. An international law is applied, as the orthodox view is that Article 27 of the VCLT stipulates that "the provisions of domestic law cannot be used to justify the default of the treaty." It is to give priority to domestic law. "Therefore, international law prioritizes domestic law 93. In other words, domestic law is considered inferior to international law, and the conflict between the two is solved by its hierarchical advantage. However, the scheme that emerges from the treaty is quite different.

VI.B. Third State law as the applicable law

34. The drafts of the ICSID Convention discussed the possibility of conflicts between domestic and international laws, and alleged that some of the domestic laws prioritized, but it is not clear whether they have reached a solid view. At one point, 94 Alon Broches has confirmed that the ICSID court cannot compete for the effectiveness of domestic law. ICSID can only judge whether the domestic level measures violate international legal obligations. 95 This seems to suggest that international law is more prioritized over domestic law. However, some lines that have been taken over clearly ask what the priority between the host National Law and the International Law is, and it is stipulated in a clear answer to the question and Article 27 of VCLT. 96 has not been redefined as a rule. Instead, it depends greatly on how the parties appeal, suggesting that "in general, should be started with host countries." 97 Another point, 98, which is calling to include the guidelines for international laws that should be prioritized over domestic law, did not give a solid answer to the International Law at the time. Suggests that. Therefore, at least, the evidence that such rules exist in TRAVAUX is at most ambiguous, and many of them are actively involved in the drafting of the treaty, including countries such as the UK, which had gained considerable experience in international law. It can be stated that the country does not seem to recognize such rules in the context of the International Investment Law. 33. The orthodox view is that international law stipulates that Article 27 of VCLT stipulates that "the states cannot be used in the provisions of domestic law to justify the default of the treaty." If it is applied, it will give priority to domestic law. "Therefore, international law prioritizes domestic law 93. In other words, domestic law is considered inferior to international law, and the conflict between the two is solved by its hierarchical advantage. However, the scheme that emerges from the treaty is quite different.

VI.B.1. Third State law as the chosen law

34. The drafts of the ICSID Convention discussed the possibility of conflicts between domestic and international laws, and alleged that some of the domestic laws prioritized, but it is not clear whether they have reached a solid view. At one point, 94 Alon Broches has confirmed that the ICSID court cannot compete for the effectiveness of domestic law. ICSID can only judge whether the domestic level measures violate international legal obligations. 95 This seems to suggest that international law is more prioritized over domestic law. However, some lines that have been taken over clearly ask what the priority between the host National Law and the International Law is, and it is stipulated in a clear answer to the question and Article 27 of VCLT. 96 has not been redefined as a rule. Instead, it depends greatly on how the parties appeal, suggesting that "in general, should be started with host countries." 97 Another point, 98, which is calling to include the guidelines for international laws that should be prioritized over domestic law, did not give a solid answer to the International Law at the time. Suggests that. Therefore, at least, the evidence that such rules exist in TRAVAUX is at most ambiguous, and many of them are actively involved in the drafting of the treaty, including countries such as the UK, which had gained considerable experience in international law. It can be stated that the country does not seem to recognize such rules in the context of the International Investment Law. 33. An international law is applied, as the orthodox view is that Article 27 of the VCLT stipulates that "the provisions of domestic law cannot be used to justify the default of the treaty." It is to give priority to domestic law. "Therefore, international law prioritizes domestic law 93. In other words, domestic law is considered inferior to international law, and the conflict between the two is solved by its hierarchical advantage. However, the scheme that emerges from the treaty is quite different.

35. ICSID is a completely internationalized system, and considering that there are no provisions for domestic court examination, and that the government is obliged to execute the ruling as if it were the final ruling of the domestic court. This ambiguity is particularly surprising, as such rules have particularly significant results in the context of ICSID. 99 Furthermore, this treaty does not include the exception of public order and morals as stated in many other treaties. During the treaty negotiations, such an exception was repeatedly attempted, but eventually rejected. 100 In fact, Alon Brosh said that there would be no public order and moral issues in relation to investment disputes in response to such exceptional needs. 101 In fact, many investment disputes include a number of public policy issues, including tax disputes, 102 environment protection, 103 safety and hygiene law, access to water, and 105 appropriate response to the economic crisis. Ta. Therefore, if Article 27 of VCLT is applied in a normal way, even if the ICSID arbitration violates its own public policy, each country will have to execute it. This is unusual, and there is a problem from a policy perspective. 35. ICSID is a completely internationalized system, there is no provision for the examination of domestic courts, and the government is obliged to execute the ruling as if it were the final ruling of the domestic court. This ambiguity is particularly surprising, as such rules have a particularly significant result in the context of ICSID. 99 Furthermore, this treaty does not include the exception of public order and morals as stated in many other treaties. During the treaty negotiations, such an exception was repeatedly attempted, but eventually rejected. 100 In fact, Alon Brosh said that there would be no public order and moral issues in relation to investment disputes in response to such exceptional needs. 101 In fact, many investment disputes include a number of public policy issues, including tax disputes, 102 environment protection, 103 safety and hygiene law, access to water, and 105 appropriate response to the economic crisis. Ta. Therefore, if Article 27 of VCLT is applied in a normal way, even if the ICSID arbitration violates its own public policy, each country will have to execute it. This is unusual, and there is a problem from a policy perspective. 35. ICSID is a completely internationalized system, and considering that there are no provisions for domestic court examination, and that the government is obliged to execute the ruling as if it were the final ruling of the domestic court. This ambiguity is particularly surprising, as such rules have particularly significant results in the context of ICSID. 99 Furthermore, this treaty does not include the exception of public order and morals as stated in many other treaties. During the treaty negotiations, such an exception was repeatedly attempted, but eventually rejected. 100 In fact, Alon Brosh said that there would be no public order and moral issues in relation to investment disputes in response to such exceptional needs. 101 In fact, many investment disputes include a number of public policy issues, including tax disputes, 102 environment protection, 103 safety and hygiene law, access to water, and 105 appropriate response to the economic crisis. Ta. Therefore, if Article 27 of VCLT is applied in a normal way, even if the ICSID arbitration violates its own public policy, each country will have to execute it. This is unusual, and there is a problem from a policy perspective.

VI.B.2. Third State law as applicable due to conflict of laws rules or a progressive supplementation mechanism

36. To understand the ambiguity regarding the relationship between international and domestic law, it is necessary to discuss the historical context in which the ICSID Convention was negotiated. The process of decolonization, which began in the 1950s, made great strides in the 1960s, when newly independent countries were critical of international law in general and what was called international investment law in particular. 107 This process of decolonization led to the idea of a “New International Economic Order,” which, in particular, “established a system of international trade that provided for (a) the absolute right of States to control the extraction and trade of their natural resources; (b) the creation and recognition of State-controlled resource cartels to stabilize (raise) commodity prices; (c) the regulation of multinational corporations....”108 This movement reached its height and demise in the 1970s, but its influence was already being felt in the 1960s. For example, in 1962, the UN General Assembly passed a resolution stating that "the right of peoples and states to permanent sovereignty over their natural wealth and resources must be exercised in the interest of the national development and the welfare of the peoples of the countries concerned."109 Later, the following provisions were established:

The exploitation of these resources and the import of foreign capital were subject to all necessary state controls. 110

VII. International law and host State law as the applicable laws under Article 42

Foreign capital and profits derived therefrom were governed by domestic and international law, and profits were to be shared in the proportions agreed upon between the state and the investor, but "must not for any reason prejudice the sovereignty of the state over its natural resources."111

States may nationalize, expropriate or requisition property "for reasons of public interest, security or national interest, whether at home or abroad, which may be deemed to take precedence over purely personal or private interests." In such cases, appropriate compensation shall be paid in accordance with domestic and international law. Access to international arbitration was also provided. 112

Investment agreements were to be implemented in good faith. 113

37. This statement was a compromise, as the text shows, the protection of foreign investors and maintaining the authority to make a decision for the government's sovereignty and the interests of their own people. However, in the 1973 declaration announced, no such compromise was seen:
The state has confirmed that the nation has "the right to give up on all natural resources ... cannot give up." 115
- The declaration asserts as follows: "Applying the state of nationalization as the expression of its sovereignty in order for the state to protect the natural resources is the amount and payments that each nation can compensate. It means having the right to determine the method, and any dispute must be resolved in accordance with the domestic laws of each nation that implements such measures.
- One year later, in the resolution, especially as follows:
 - In any country, we can implement such measures in consideration of all situations, which are relevant laws, rules, and countries that are related to the nationalization of foreign assets, and relocation of ownership. Appropriate compensation is paid by the country. 117
 - The dispute on such measures is "unless all the relevant nations are agreed with all the relevant countries, based on national sovereignty equality and in accordance with the principles of freedom selection of means. The host country court should solve it based on domestic law. "118 37. This statement is a compromise product of the protection of foreign investors and the maintenance of the authority to make decisions for the government's sovereignty and the interests of their own people. However, there was no such compromise in the 1973 declaration that was later announced.

The state has confirmed that the nation has "the right to give up on all natural resources ... cannot give up." 115

The declaration asserts as follows: "Applying the state of nationalization as the expression of its sovereignty in order for the state to protect the natural resources is the amount and payments that each nation can compensate. It means having the right to determine the method, and any dispute must be resolved in accordance with the domestic laws of each nation that implements such measures.

One year later, in the resolution, especially as follows:

In any country, we can implement such measures in consideration of all situations, which are relevant laws, rules, and countries that are related to the nationalization of foreign assets, and relocation of ownership. Appropriate compensation is paid by the country. 117

The dispute on such measures is "unless all the relevant nations are agreed with all the relevant countries, based on national sovereignty equality and in accordance with the principles of freedom selection of means. The host country court should solve it based on domestic law. "11837. This statement was a product of compromise on protecting foreign investors, as shown by the text, to maintaining the authority of the host country and the authority to make decisions. In the 1973 declaration announced later, such a compromise was not seen:

The state has confirmed that the nation has "the right to give up on all natural resources ... cannot give up." 115

The declaration asserts as follows: "Applying the state of nationalization as the expression of its sovereignty in order for the state to protect the natural resources is the amount and payments that each nation can compensate. It means having the right to determine the method, and any dispute must be resolved in accordance with the domestic laws of each nation that implements such measures.
One year later, in the resolution, especially as follows:
In any country, we can implement such measures in consideration of all situations, which are relevant laws, rules, and countries that are related to the nationalization of foreign assets, and relocation of ownership. Appropriate compensation is paid by the country. 117

VIII. Conclusion

38. As Sornara Ja pointed out, these provisions clearly emphasize domestic management of foreign investment and reduce the role of international law in protecting foreign investment. 119 In addition, it can be said that the dispute on foreign investors is universal of the carvo doctrine 120, which is exclusively solved by domestic courts in accordance with domestic law. Given this background, the 1970s resolution is after the ICSID Convention has broken, but it still reflects the direction of international law at the time. As expected, the ICSID Treaty intended to reflect a compromise between competing visions on investment law. As the 121 developing countries have consistently mentioned the need to balance the benefit of foreign investment and the need to protect the national sovereignty, the effects of NIEO are also clearly reflected in the article. 122 In addition, the drafting of this treaty clearly quoted the UN resolution of permanent sovereignty in 1962 and inserted the wording of this resolution into the preamble of the treaty. Nevertheless, this decisively indicates that NIEO is an important framework for interpreting the ICSID treaty and the compromise contained in it.

39. It is surprising that the ICSID Convention did not take a clear position for the ICSID Convention on the two conflicting vision of the Investment Act. One is a carvo law, and the other is a rule that requires the minimum standards for treatment, the diplomatic protection of foreigners and their property, and the "quick, appropriate and effective" compensation. 124 The reason why I did not try to take such a clear position is probably because I wanted as many countries as possible to ratify ICSID. It also explains that foreign investment has not taken a position on whether international law is given priority over domestic law. This is because it clearly impairs the aspects of NIEO, and the states could not even agree on international investment international law. However, the fact that the drafting of the ICSID Convention seems to have had a different view of these issues means that it is only necessary to apply the general law of Article 27, regardless of the initial framework of the treaty. Is it there? It is suggested that it is not so mainly for three reasons: 38. As pointed out by Sornaraja, these provisions clearly emphasize domestic management of foreign investment and the international law in the protection of foreign investment. We intend to reduce the role of. 119 In addition, it can be said that the dispute on foreign investors is universal of the carvo doctrine 120, which is exclusively solved by domestic courts in accordance with domestic law. Given this background, the 1970s resolution is after the ICSID Convention has broken, but it still reflects the direction of international law at the time. As expected, the ICSID Treaty intended to reflect a compromise between competing visions on investment law. As the 121 developing countries have consistently mentioned the need to balance the benefit of foreign investment and the need to protect the national sovereignty, the effects of NIEO are clearly reflected in the article. 122 In addition, the drafting of this treaty clearly quoted the UN resolution of permanent sovereignty in 1962 and inserted the wording of this resolution into the preamble of the treaty. Nevertheless, this decisively indicates that NIEO is an important framework for interpreting the ICSID treaty and the compromise contained in it.

39. It is surprising that the ICSID Convention did not take a clear position for the ICSID Convention on the two conflicting vision of the Investment Act. One is a carvo law, and the other is a rule that requires the minimum standards for treatment, the diplomatic protection of foreigners and their property, and the "quick, appropriate and effective" compensation. 124 The reason why I did not try to take such a clear position is probably because I wanted as many countries as possible to ratify ICSID. It also explains that foreign investment has not taken a position on whether international law is given priority over domestic law. This is because it clearly impairs the aspects of NIEO, and the states could not even agree on international investment international law. However, the fact that the drafting of the ICSID Convention seems to have had a different view of these issues means that it is only necessary to apply the general law of Article 27, regardless of the initial framework of the treaty. Is it there? It is suggested that it is not so for the three reasons: 38. As Sora Naraja pointed out, these provisions clearly emphasize domestic management of foreign investment and have the role of international law in the protection of foreign investment. It intends to shrink. 119 In addition, it can be said that the dispute on foreign investors is universal of the carvo doctrine 120, which is exclusively solved by domestic courts in accordance with domestic law. Given this background, the 1970s resolution is after the ICSID Convention has broken, but it still reflects the direction of international law at the time. As expected, the ICSID Treaty intended to reflect a compromise between competing visions on investment law. As the 121 developing countries have consistently mentioned the need to balance the benefit of foreign investment and the need to protect the national sovereignty, the effects of NIEO are also clearly reflected in the article. 122 In addition, the drafting of this treaty clearly quoted the UN resolution of permanent sovereignty in 1962 and inserted the wording of this resolution into the preamble of the treaty. Nevertheless, this decisively indicates that NIEO is an important framework for interpreting the ICSID treaty and the compromise contained in it.

Footnotes

In the context of investment disputes, developing countries were not only developing countries opposed the customary rules of international law embodied in Article 27 of VCLT. Rather, as mentioned earlier, it seems that even developed countries like the UK did not know their existence.

Elim Poon - Journalist, Creative Writer

Last modified: 27.08.2024

The main driver is investor-state dispute settlement (ISDS)—a treaty-based system of adjudication which allows corporate investors to sue sovereign states in. By contrast, the ALI's Principles of World Trade Law present the law of a genuine international organization (the World Trade Organization), while the ALI's. However, they are distinct from most public international law treaties because the vast majority of them permit investors to bring arbitral claims directly.

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