Part III Guide to Key Jurisdictional Issues, 15 Breach of Treaty Claims and Breach of Contract Claims: When Can an International Tribunal Exercise Jurisdiction? »
Stanimir A AlexandrovFrom: Arbitration Under International Investment Agreements: A Guide to the Key Issues (2nd Edition)
Edited By: Katia Yannaca-Small
Foreign investors invest in a host state via a contract between the foreign investor and an entity or instrumentality of the host state. Disputes between investors and host states under investment treaties often arise out of breaches of these contracts. In such cases, international tribunals must assess whether the asserted claims rise to the level of a breach of a state’s international obligations. More than a decade ago, the decisions on jurisdiction in SGS v Pakistan and SGS v Philippines brought this issue into the spotlight. These decisions, often perceived as contradictory, deal with the jurisdiction of treaty-based tribunals over claims for a breach of contract. This chapter reviews the seeming confusion regarding the interplay between treaty claims and contract claims and discusses how to dispel any confusion.
Proximate Causation in International Investment Disputes »
Stanimir A Alexandrov, Joshua M Robbins
Amid the burgeoning landscape of literature on international investment law and dispute settlement, surprisingly little sunlight has fallen upon the subject of proximate causation. A doctrine deeply rooted in both domestic and international practice, proximate causation is often employed by courts and tribunals to test the sufficiency of the connection between wrongful acts and resultant harms. This article seeks to rescue proximate causation from its relative obscurity within the international investment law discipline. In the process, it attempts to highlight the potential utility and particular dangers involved in application of proximate causation principles. In particular, the article notes the tendency of courts—and sometimes international tribunals—to invoke proximate causation in order to further certain desired policies, with corresponding implications for the legitimacy of the dispute resolution process. Part One provides background on the concept of proximate causation and its adoption in domestic and international legal systems, including among investor-state tribunals. Part Two reviews international tribunals' application of proximate causation concepts to limit the scope of state liability for ‘indirect’ or ‘remote’ harms. Part Three addresses the use of proximate causation principles in cases involving multiple causes of harm.