Access to justice, denial of justice and international investment law

European Journal of International Law

Volumn 20, Issue 3, 2009, Pages 729-747

  Francioni, Francesco ^a  

^a University Institute (EUI)   (Italy)

Author keywords

[No Author keywords available]

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EID: 74549218758     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chp057     Document Type: Article

References (59)

1. On the evolution of International law in the context of the mutual contamination and cultural exchange between the Christian World and Islam see the magisterial analysis by Ago, 'Pluralism and the Origin of the International Community', 3 Italian Ybk Int'l L (1977) 3.
2. L. Ferrari Bravo, Lezioni di diritto internazionale (1993), at 25.
3. See Art. 54 of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 575 UNTS 159. Para. 1 of this Art. provides that '[e]ach Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State'.
4. North American Free Trade Agreement between Canada, the United States, and Mexico, entered into force on 1 Jan. 1994, 32 ILM (1993) 289.
5. Mavrommatis Palestine Concessions, PCIJ Rep Series A No. 2, 30 Aug. 1924, at 12.
6. It is significant that also in the ILC Arts on Diplomatic Protection this tendency to take into account the rights of the injured person, beside the traditional right of the state which exercises diplomatic protection, has found an echo in the 'recommended practices' annexed to the Arts: see ILC Draft Articles on Diplomatic Protection (2006), Official Records of the General Assembly, Sixty first Session, Supplement No. 10 (A/61/10).
7. Loewen Group Inc. and Raymond Loewen v. United States of America, ICSID Case No. ARB (AF)/98/3, 26, 26 June 2003, 42 ILM (2003) 811.
8. Since 1978, the Administrative Council of the Centre for the Settlement of Investment Disputes has authorized the Secretariat to administer arbitral proceedings concerning investment disputes between Parties to the 1966 ICSID Convention and nationals of states which are not parties to the Convention.
9. Loewen, supra note 7, at para. 61.
10. Ibid., at para. 54.
11. Ibid., at paras 119 and 122.
12. ICJ, Case Concerning Elettronica Sicula Spa (ELSI), Judgment 20 July 1989 [1989] ICJ Rep, at paras 61 and 62.
13. ICJ, Ahmadou Sadio Diallo, Republic of Guinea v. Democratic Republic of Congo (PreliminaryObjections ), judgment of 24 May 2007.
14. Ibid., at para 44.
15. Ibid., emphasis added.
16. For a critical analysis of this case see the forum discussion in 6 The Journal of World Investment and Trade, Feb. 2005, with contributions by J. Werner and M. Meldelson, at 80-97.
17. Mondev International Ltd v. United States of America, ICSID (Additional Facility) Case No. ARB(AF)/99/2, Award, 11 Oct. 2002, 42 ILM (2003) 85.
18. See in particular the reference to the ELSI case in ibid., at para. 127.
19. Robert Azinian, Kenneth Davitian and Ellen Baca v. United Mexican States, ICSID (Additional Facility) Case No. ARB(AF)/97/2, Award, 1 Nov. 1999, 39 ILM (1999) 537, at 552.
20. European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Nov. 1950, 213 UNTS 222.
21. If this approach had been followed in Mondev it would have been easy for the panel to realize that also in relation to Art. 6(1) ECHR, the European Court has accepted a wide range of procedural and substantive restrictions including immunities of public institutions. For a review of the relevant practice see Francioni, 'The Right of Access to Justice under Customary International Law', in F. Francioni (ed.), Access to Justice as a Human Right (2007), at 33 ff. In the same volume, see also the specific contribution by Scheinin, 'Access to Justice before Human Rights Bodies: Reflections on the Practice of the UN Human Rights Committee and the European Court of Human Rights', at 135-152.
22. Saipem Spa v. the People's Republic of Bangladesh, ICSID Case No. ARB/05/07, Decision on Jurisdiction and Recommendation on Provisional Measures, 21 Mar. 2007. It is interesting to note that in this Decision at paras 130 and 132 the Tribunal made a reference to the case law of the ECtHR to support the finding that rights under judicial decisions are protected property and that court decisions nullifying them may amount to expropriation.
23. On the concept of 'fair and equitable treatment' in foreign investment practice see the detailed study by I. Tudor, Great Expectations. The 'Fair and Equitable Treatment' Standard in the International Law of Foreign Investment (2006), PhD Thesis, European University Institute. Generally on the role of equity in international economic law see F. Francioni, 'Equity', in Max Planck Encyclopaedia of Public International Law (forthcoming).
24. The Mayana (Sumo) Awas Tingni Community v. Nicaragua, Inter-Am Ct HR (ser. C) No. 124 (15 June 2005).
25. American Convention on Human Rights, signed in San Jose, Costa Rica, 22 Nov. 1969, entered into force 18 July 1978, 9 ILM (1969) 101.
26. For a discussion of this case see Nwobike, 'The African Commission on Human and Peoples 'Rights and the Demystification of Second and Third Generation Rights under the African Charter', 1 African J Legal Studies (2005) 129, at 131.
27. Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Marrakesh Agreement Establishing the World Trade Organization, 33 ILM (1994) 1197, in force since 1 Jan. 1995.
28. Boisson de Chazournes, 'Transparency and Amicus Curiae Briefs' [2004] J World Investment and Trade 333.
29. See WTO Panel Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R, adopted 18 Sept. 2000, and WTO Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 12 Mar. 2001.
30. For a full account of this practice see Baroncini,' Società civile e sistema OMC di risoluzione delle controversie: gli amici curiae', in F. Francioni et al. (eds), Organizzazione Mondiale del Commercio e diritto della Comunità Europea nella prospettiva della risoluzione delle controversie (2005), at 75.
31. Methanex v. United States of America, Final Award, 9 Aug. 2005, 44 ILM (2005) 1345.
32. United Parcel Service of America Inc. (UPS) v. Canada, Award on the Merits, 24 May 2007, available at: www.naftaclaims.com/Disputes/Canada/UPS/UPS-Canada-Final_Award_and_Dissent.pdf.
33. Glamis Gold Ltd v. the Government of the United States of America, Notice of Arbitration, 9 Dec. 2003, available at: www.state.gov/documents/organization/27320.pdf.
34. The petitioners in the Methanex case, supra note 31, were the International Institute for Sustainable Development, Communities for a better Environment, and Earth Island Institute; in UPS, supra note 32, they were the Canadian Union of Postal Workers and the Council of Canadians.
35. Statement of the North American Free Trade Commission on Non-Disputing Party Participation, 7 Oct. 2003, available at: www.ustr.gov.
36. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 575 UNTS 159. The Convention entered into force on 14 Oct. 1966.
37. Agua del Tunari SA v. Bolivia, ICSID Case No ARB/02/3, Decision on Jurisdiction, 21 Oct. 2005. The reason for the denial of the admissibility of amicus briefs is explained in a letter from the President of the Tribunal attached to the award as Annex III.
38. Aguas Argentinas SA, Suez Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v. Argentina, ICSID Case No. ARB/03/19, Order of 19 May 2005.
39. guas Provinciales de Santa Fé SA, Suez Sociedad General de Aguas de Barcelona SA and Interagua Servicios Integrales de Agua SA v. Argentina, ICSID Case No. ARB/03/17, Order of 17 Mar. 2006.
40. ywater Gauff v. Tanzania, ICSID Case No. ARB/05/22, Procedural Order of 2 Feb. 2007. It is interesting to note that all these cases concerned foreign investments in essential public services such as the provision of water.
41. The Amended Rules and Regulations came into effect on 10 Apr. 2006 and are available at: www.worldbank.org/icsid/basicdoc/CRR_English-final.pdf.
42. On the concept of civil society and its impact on the development of international law see P.M. Dupuy and L. Vierucci (eds), NGOs in International Law-Efficiency in Flexibility? (2008).
43. Hague Convention II on the Limitations of the Employment of the Use of Force for the Recovery of Contract Debts, signed on 18 Oct. 1907, 36 Stat. 2241; Treaty Series 537.
44. The Convention did not rule out the use of force for the recovery of money loaned to another country but made its use conditional upon the refusal of the debtor state to accept international arbitration or upon its failure to enforce an arbitral decision on the matter.
45. See the landmark case, Trendex v. Central Bank of Nigeria, British Court of Appeals, Civil Division, 13 Jan. 1977 [1983] Int'l L Rep 112.
46. See the famous case of Callejo v. Bancomer, US Court of Appeals for the Fifth Circuit, 8 July 1985, 764 F2d (1985) 1101.
47. US Supreme Court, R epublic of Argentina v. Weltover, 12 June 1992, 504 US 607.
48. In CMS Gas Transmission Company v. Argentine Republic, ICSID Case No. ARB/01/8, Award, 12 May 2005, the Tribunal held that the defence of necessity was not admissible because the measure adopted by Argentina with regard to the investment was not the only available response to the economic crisis and because the Government had significantly contributed to the materialization of the financial crisis. In LG&E Energy Corp., LG&E Capital Corp. and LG&E International Inc. v. Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability, 3 Oct. 2006, instead, the Tribunal conceded the state of necessity, but concluded that such state does not exclude the obligation to compensate the injured investor, because necessity is only temporary and the duty to provide reparation revives as soon as necessity is terminated. Both awards are available at: www.worldbank.org/icsid/.
49. Italian Holders of Argentine Sovereign Bonds v. Argentina, ICSID Case No. ARB/07/5, registered 7 Feb. 2007; Giordano Alpi and others v. Argentine Republic, ICSID Case No. ARB/08/9 registered on 28 July 2008, and Giovanni Alemanni and others v. Argentine Republic, ICSID Case No. ARB 07/8 registered on 27 Mar. 2007.
50. Accordo fra la Repubblica Italiana e la Repubblica Argentina sulla promozione e protezione degli investimenti, 3 June 1988, available at: www.sice.oas.org/Investment/BITSbyCountry/BITs/ARG_Italy.pdf.
51. Decision No. 11225, reproduced in Rivista di diritto internazionale privato e processuale (2005), at 1094.
52. Supra note 41.
53. For reference to the vast number of US judicial decisions on this matter see Bonafé, 'State Immunity and the Protection of Private Investors: The Argentine Bonds Case before Italian Courts', XVI Italian Ybk Int'l L (2006) 165, at 177.
54. Landgericht, Frankfurt am Main, Argentinianleihen-Urteil, 14 Mar. 2003, No. 294/02, cited in Bonafé, supra note 47, at 179.
55. UN Convention on Jurisdictional Immunities of States and Their Property, UN GA Res A/59/38 (2004), 2 Dec. 2004.
56. European Convention on State Immunity, signed in Basle on 16 May 1972, CETS No. 74.
57. See Report of the International Law Commission on the Work of its Fifty-first Session, 1999, UN Doc. A/54/10, at 160.
58. For a comprehensive survey of such case law see Bonafé, supra note 47, at 169.
59. On 'judicial dialogue' in international investment law see, for instance, Vadi, 'Towards Arbitral Path Coherence and Judicial Borrowing: Persuasive Precedent in Investment Arbitration', 5 Transnational Dispute Management (2008).