Index
From: A Guide to General Principles of Law in International Investment Arbitration
Patrick Dumberry
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- Preliminary Material
- Main Text
- Introduction
- 1 Nature, Meaning, and Function of General Principles of Law in International Law
- Preliminary Material
- 1.01
- 1.02
- 1.03
- 1.04
- 1 The Nature of GPL
- 1.1 GPL is one of the Sources of International Law
- 1.2 GPL is an Autonomous and Formal Source of Law
- 1.3 GPL are Distinct from Custom
- 1.4 GPL Have Nonetheless Been Used in Practice by Courts as Having a Subsidiary Character
- 1.5 Arbitral Tribunals Have Only Made Limited Use of GPL Since the Treatification of Investment Arbitration
- 2 The Meaning(s) of GPL
- 1.26
- 1.27
- 1.28
- 1.29
- 1.30
- 1.31
- 1.32
- 2.1 General Principles Existing under the Domestic Laws of States
- 2.2 General Principles Existing in International Law
- 1.44
- 1.45
- 2.2.1 The Nature and Relevance of These Principles Existing in International Law
- 2.2.2 Investment Arbitral Tribunals Have Often Referred to Such General Principles of International Law
- 2.2.3 The Interaction between the Concept of ‘Transnational Public Policy’ and General Principles of International Law
- 2.3 Other Interpretations
- 3 The Functions of GPL
- 1.71
- 3.1 The Gap-Filling Role
- 3.2 GPL can be Used as a Source of Interpretation for Uncertain and Ambiguous Treaty Terms
- 3.3 Can GPL be Used to Correct Existing Unsatisfactory Law and Further Develop International Law?
- 3.4 Investment Tribunals Have Used GPL to Confirm a Conclusion Already Established Based on Other Sources
- 2 Situations Where Tribunals can Apply GPL Depending on the Applicable Law to Settle a Dispute
- Preliminary Material
- 2.01
- 2.02
- 1 Arbitration under a State Contract
- 2 Arbitration under the Host State’s Law
- 3 Arbitration under an Investment Treaty
- 3 How to Identify GPL and Transpose Them on the International Plane
- Preliminary Material
- 3.01
- 3.02
- 3.03
- 1 A Methodology Involving Three Distinct Phases
- 2 First Step: The Identification of a Principle That is Common to Domestic Legal Orders
- 3.09
- 2.1 Where Should one Look for GPL in the Domestic Legal Orders of States?
- 2.2 The Reference to ‘Civilized’ Nations in Article 38 has Fallen into Desuetude and has no Specific Meaning Today
- 2.3 Comparative Law is the Proper Method of Investigation to be Used to Discover GPL, but it has Seldom Been Used by Courts and Tribunals
- 2.4 While Investment Tribunals Have Endorsed the Use of Comparative Law, They Have Never Actually Used it in Practice to Identify GPL
- 2.5 It is Unnecessary to Examine all Domestic Laws, What Matters is Focusing on the Most Representative Legal Systems
- 3.29
- 3.30
- 3.31
- 3.32
- 3.33
- 3.34
- 3.35
- 3.36
- 3.37
- 3.38
- 2.5.1 Can a GPL be Said to Exist if Only Found in one Legal System?
- 2.5.2 Can a GPL be Considered as Existing Despite not Being Recognized by One Major Legal System?
- 2.5.3 Can a Tribunal Apply a GPL in the Context of Arbitration Proceedings against a State which does not Recognize Such Principle in its own Legal Order?
- 3 Second Step: The Distillation of the Essence of the Principle
- 4 Third Step: The Adaptation and Transposition of the Principle into the International Legal Order
- 4 Analysis of Specific General Principles of Law
- Preliminary Material
- 4.01
- 4.02
- 4.03
- 4.04
- 4.05
- 4.06
- 4.07
- 1 Good Faith and pacta sunt servanda
- 2 Due Process
- 3 Burden of Proof: actori incumbit onus probanti
- 4 Estoppel
- 5 Res judicata
- 6 Lis pendens
- 7 Clean Hands Doctrine
- 7.1 Definition
- 7.2 While a Number of Scholars Have Considered the Doctrine as a GPL, the Question Remains Controversial
- 7.3 There is Limited Support for the Doctrine in International Case Law
- 7.4 The Doctrine has Been Recognized by a Number of Investment Tribunals and has Been Expressly Denied in Only one Award
- 4.119
- 4.120
- 7.4.1 Awards Rendered by Tribunals under BITs Containing a Legality Requirement Clause
- 7.4.2 Does Any Legality Requirement Exist Absent of an Express Provision in the Treaty?
- 7.4.3 Basic Typology of Violations Triggering the Doctrine: Corruption, Fraud, and Bribery
- 7.4.4 The Controversial Yukos Award
- 4.138
- 7.4.4.1 Summary of the Relevant Facts and Findings
- 7.4.4.2 Critical Analysis of the Award
- 4.147
- 7.4.4.2.1 The Consequences of Rejecting the Application of the Clean Hands Doctrine to Post-Establishment Violations.
- 7.4.4.2.2 It is Unclear Whether the Tribunal Examined the Doctrine from the Perspective of a GPL foro domestico or a General Principle of International Law.
- 7.4.4.2.3 Investment Tribunals Have Already Recognized and Applied the Clean Hands Doctrine in Previous Awards.
- 7.4.5 The Niko Resources and Al-Warraq Awards Have Endorsed the Doctrine
- 7.4.6 Conclusion on Investment Case Law
- 7.5 Conclusion
- 8 Unjust Enrichment
- 9 Force Majeure
- 10 Rebus sic stantibus
- 11 Abuse of Rights
- 11.1 Definition
- 11.2 This Concept is Frequently Referred to by International Tribunals and is Largely Recognized as a GPL
- 11.3 The Concept has Been Recognized as a GPL by Several Investment Tribunals
- 11.4 The Application of the Principle of Abuse of Process by Investment Tribunals
- 4.254
- 4.255
- 4.256
- 4.257
- 11.4.1 Corporate Structuring
- 4.258
- 11.4.1.1 The Controversial Phenomenon of Treaty Shopping
- 11.4.1.2 Corporate Structuring can be Considered an Abuse of Process When Done for the Sole Purpose of Gaining Access to Arbitration under a BIT
- 11.4.1.3 Corporate Structuring can be Considered an Abuse of Process When the Goal is to Artificially Transform a Local Dispute into an International one to Gain Access to Arbitration under a BIT
- 11.4.2 Parallel and Multiple Proceedings
- 11.5 Conclusion
- 12 Proportionality
- 13 Acquired Rights
- 14 Mitigation of Damages
- 15 Denial of Justice
- 16 Fair and Equitable Treatment Standard
- 17 Legitimate Expectations
- 18 Other Concepts
- 5 Conclusion
- Further Material
- [18.206.13.203]
- 18.206.13.203
