INVESTMENT ARBITRATION
What is the principle that allows an arbitral tribunal to decide objections to its own jurisdiction?
Kompetenz-Kompetenz
According to Article 2 of the ILC Articles, what additional element—besides attribution—is required to establish an internationally wrongful act?
Breach of an international obligation
In addition to ordinary meaning and context, what additional element does Article 31 of the VCLT require to guide treaty interpretation?
Object and purpose.
Under the MFN standard, to which category of investors must treatment be compared?
Investors of any third State.
Under the traditional understanding of FPS, what standard of conduct must the State exercise to protect investors against physical harm?
Due diligence
What is the limited post-award remedy available under the ICSID Convention instead of an appeal?
Annulment.
Under Article 7 of the ILC Articles, how is the conduct of a State organ characterized even if it exceeds its authority or contravenes instructions?
An act of the State.
Under Article 32 of the VCLT, how are travaux préparatoires classified as an interpretative tool?
Supplementary means of interpretation.
Under National Treatment, against which reference group are foreign investors compared?
Domestic investors in like circumstances.
Why is FET considered an autonomous standard?
Because it evaluates the conduct of the host State itself rather than comparing investors
Through what procedural act does an investor perfect consent to arbitration when accepting a State’s offer contained in a treaty?
Filing the request for arbitration.
Under Article 8 of the ILC Articles, what level of State involvement makes the conduct of private actors attributable to the State?
Instructions, direction, or control of the State.
Under Article 31(4) of the VCLT, when may a term be given a special meaning rather than its ordinary meaning?
When it is established that the parties so intended
What is the term used for the treaty containing the MFN clause from which more favorable treatment is sought?
The basic treaty.
To which customary international law benchmark do some modern treaties expressly link FET?
The minimum standard of treatment under customary international law.
Which 1958 convention typically governs the recognition and enforcement of awards in non-ICSID investment arbitration?
The New York Convention.
According to Article 14 of the ILC Articles, over what period does a continuing breach extend?
The entire period during which the act remains not in conformity with the obligation.
Under Article 31(3)(c) of the VCLT, what category of norms must be taken into account when interpreting a treaty?
Relevant rules of international law applicable between the parties.
According to the majority treaty practice identified in the IISD study, to which phase of the investment process is MFN typically limited?
The post-establishment phase.
From which standard is FET doctrinally distinguished because it may be breached without substantial deprivation?
Indirect Expropriation
Under Article 25 of the ICSID Convention, what form of consent must both the State and the investor provide for jurisdiction to exist?
Written consent of both the State and the investor.
Under Article 11 of the ILC Articles, what must a State do for conduct not otherwise attributable to become attributable to it?
Acknowledges and adopts it as its own.
Under Article 31(2) of the VCLT, what additional instruments form part of the context if accepted by the parties as related to the treaty?
Instruments made in connection with the conclusion of the treaty and accepted by the other parties.
Why is MFN characterized as a relative obligation in the IISD study?
Because its content depends on treatment granted to others
When FET is linked to customary international law, what two elements must tribunals examine to determine whether the rule has crystallized?
State practice and opinio juris.