Preface

Dumberry, Patrick

doi:10.1017/cbo9781316481479.002

Cited by 7 publications

(9 citation statements)

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“…104 Suffice it to say for the purpose of the present article that in one case, Desert Line Projects LLC v Yemen, 105 the Arbitral tribunal awarded the claimant an amount of US$ 1 million in compensation. The Tribunal held that Yemen should provide compensation to a corporation for its officers' psychological suffering (in this case, the 'stress and anxiety of being harassed, threatened and detained' 106 ) directly resulting from physical actions, ie physical duress and other related measures of coercion, interference or intimidation conducted by army/police forces.…”

Section: A Compensation Is the Proper Remedy For Moral Damages Suffementioning

confidence: 94%

Satisfaction as a Form of Reparation for Moral Damages Suffered by Investors and Respondent States in Investor-State Arbitration Disputes

Dumberry

2012

Journal of International Dispute Settlement

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The question examined in this article is how moral damages should be remediated by arbitral tribunals in the specific context of investor-State arbitration. In other words, is the best remedy satisfaction or monetary compensation? The article first examines the issue of reparation for moral damages under general international law, and specifically the different forms that the remedy of satisfaction may take. Under international law, monetary compensation is the appropriate remedy for moral damages affecting an individual while satisfaction is the proper means of reparation for such damages caused to a State directly. The article then examines recent investor-State arbitration cases. They also show that monetary compensation is the appropriate remedy for moral damages affecting an individual or a corporation. Two recent cases (Pey Casado v Chile and Lemire v Ukraine) raise the question whether or not a tribunal established under a BIT could remediate moral damages suffered by a foreign investor with satisfaction (in the form of a declaration of wrongfulness) instead of monetary compensation. This issue has never been addressed in the doctrine. In our view, satisfaction is not the proper method of remediation in this context. In two other recent cases (Europe Cement v Turkey and Cementownia v Turkey), Turkey sought an award of monetary compensation for moral damages it allegedly suffered with regards to its 'reputation and international standing' as a result of baseless claims filed by the foreign investors. These cases raise the unprecedented issue, never addressed in doctrine, of the appropriate remedy to redress any moral damages suffered by a State in the context of international investment law. In our view, satisfaction, in the form of a declaration of wrongfulness, would be the most appropriate form of reparation in this context. This article examines the circumstances under which moral damages may occur by distinguishing investor's misconduct in the general context of its investment in the host State from those arising in the specific context of investor-State arbitration proceedings. We conclude that the issue of moral damages suffered by a State in the context of international investment law is unlikely to frequently arise and that, in any event, under most BITs, arbitral tribunals will simply not have jurisdiction over any such claims raised by a respondent State.

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Section: A Compensation Is the Proper Remedy For Moral Damages Suffementioning

confidence: 94%

Satisfaction as a Form of Reparation for Moral Damages Suffered by Investors and Respondent States in Investor-State Arbitration Disputes

Dumberry

2012

Journal of International Dispute Settlement

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“…In this case, the investor alleged that the Mexican government and a stateowned bank violated Article 1105 by not honouring contractual exclusivity terms and not providing promised landfi ll sites, largely in deference to local resistance to private waste collection. 135 The tribunal considered arbitrariness as a stand-alone element of FET. In rejecting the Article 1105 claim, the tribunal applied a high threshold for fi nding arbitrariness, explaining that Mexico's conduct was not "wholly arbitrary" or "grossly unfair."…”

Section: Waste Management IImentioning

confidence: 99%

Too Low a Threshold: Bilcon v Canada and the International Minimum Standard of Treatment

Carfagnini¹

2016

Can. yearb. int. law

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Treaty obligations to afford foreign investors a minimum standard of treatment (MST) and/or fair and equitable treatment (FET) are hallmarks of international investment law. However, the relationship between such treaty-based obligations and customary international law has been the subject of considerable debate. In the North American Free Trade Agreement (NAFTA) context, the majority tribunal decision and dissenting opinion in Clayton and Bilcon of Delaware Inc. v Government of Canada (Bilcon) reflect ongoing disagreement regarding the threshold for breach of the MST under NAFTA Article 1105. This article charts NAFTA investment tribunals’ decisions regarding FET claims under Article 1105 and the development of the customary international MST on which that provision is based, in particular, the prohibition on arbitrary treatment. It argues that the majority in Bilcon applied an inappropriately low threshold in finding a breach of Article 1105, which could represent a new and unwelcome direction in NAFTA Chapter 11 jurisprudence.

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“…with which the new State has an organic and structural continuity' in cases of cession, secession and dissolution. 107 As an expression of general international law this principle has only been applied three times, once by a municipal court and twice by an international tribunal. In the Samos (Liability for Torts) case a Greek Court decided that Greece, as a successor State absorbing the territory of the Island of Samos, could be held responsible for acts of that autonomous province that had been undertaken while the island was still part of the Ottoman Empire.…”

mentioning

confidence: 99%

“…110 There is scholarly support for the proposition that the Court was particularly influenced in its conclusion that Slovakia was under an obligation to compensate Hungary by the degree of autonomy Slovakia had experienced as a federated republic within Czechoslovakia. 111 General international law is increasingly influenced by lex specialis legal regimes, specifically international human rights norms. 112 As this process accelerates and mechanisms of general international law (such as the ICJ) are increasingly called upon…”

mentioning

confidence: 99%

I. EUROPEAN COURT OF HUMAN RIGHTS BIJELIC V MONTENEGRO AND SERBIA (APPLICATION NO 19890/05) JUDGMENT OF 11 JUNE 2009

Brockman-Hawe

2010

ICLQ

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What happens when a European State breaches its international obligations and then ceases to exist? Does its obligation to repair the harm caused by the breach devolve to a new state that occupies part of the territory of an old state? When will a new European State be held accountable for violations that took place before the entry into force of a human rights treaty? This comment examines the European Court of Human Rights' (hereinafter ‘the Court’ or ‘the ECtHR’) encounter with the law of state succession, specifically succession to treaty obligations and succession to responsibility for the wrongful acts of a predecessor state. In Bijelic v Montenegro and Serbia the Court held that Montenegro was to be automatically regarded as a party to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’), as well as Protocol No 1 thereto, from the date of its declaration of independence from the State Union of Serbia and Montenegro (hereinafter ‘the State Union’), and that Montenegro alone could be held responsible for violations of these instruments occurring in the territory of the State Union that began before March 2004 (the date of ratification of the Convention and Protocol 1 by the State Union) but continuing through 2009. Bijelic is not the first time the Court has been called upon to decide a question of succession to treaty obligations or responsibility, but the judgment is noteworthy for the unique approach the Court adopted to deciding both of these issues. This comment will place the decision in the larger context of Court practice with respect to both of the implicated succession issues, identify the aspects the Trial Chamber's analysis that distinguish it from its predecessors and discuss the decision of the Court in light of general and emerging trends in international law. In the process, this comment will provide a uniquely thorough examination of ECtHR practice with respect to succession to responsibility and identify the trends, to the extent that such trends exist, that characterize the Court's approach to this area of law.

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Preface

Cited by 7 publications

References 0 publications

Satisfaction as a Form of Reparation for Moral Damages Suffered by Investors and Respondent States in Investor-State Arbitration Disputes

Satisfaction as a Form of Reparation for Moral Damages Suffered by Investors and Respondent States in Investor-State Arbitration Disputes

Too Low a Threshold: Bilcon v Canada and the International Minimum Standard of Treatment

I. EUROPEAN COURT OF HUMAN RIGHTS BIJELIC V MONTENEGRO AND SERBIA (APPLICATION NO 19890/05) JUDGMENT OF 11 JUNE 2009

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