Pleas of illegality and the application of domestic law in investment treaty arbitration

被引:0
作者
Risso, Giorgio [1 ]
Amato, Anna Chiara [2 ]
机构
[1] Hogan Lovells Int LLP, London, England
[2] Cleary Gottlieb Steen & Hamilton LLP, Law New York, Rome, Italy
关键词
legality clauses; pleas of illegality; jurisdiction; domestic law;
D O I
暂无
中图分类号
D9 [法律]; DF [法律];
学科分类号
0301 ;
摘要
It is generally accepted that State Parties can rely on 'in accordance with the host State law' clauses (or legality clauses) with a view to curtailing arbitral tribunals' jurisdiction to disputes arising from lawful investments. Given the increasing attention dedicated to legality in modern investment treaty practice, it is likely that 'in accordance with the host State law' clauses will continue playing an important role in arbitration proceedings. In light of the foregoing, this article examines how arbitral tribunals interpret and apply domestic law when dealing with jurisdictional challenges based on pleas of illegality. Drawing upon the limitations to legality clauses elaborated by the case law, the authors demonstrate that tribunals tend to adopt an 'international' approach in interpreting and applying domestic law. The authors explain why this international approach is fundamentally flawed and suggest an alternative approach to use in future disputes.
引用
收藏
页码:96 / 116
页数:21
相关论文
共 44 条
[1]  
[Anonymous], 2012, Principles of International Investment Law
[2]  
[Anonymous], 2003, BYBIL
[3]   Applicable Law Provisions in Investment Treaties: Forever Midnight Clauses? [J].
Atanasova, Dafina .
JOURNAL OF INTERNATIONAL DISPUTE SETTLEMENT, 2019, 10 (03) :396-422
[4]  
Atanasova Dafina, 2019, J INT DISPUT SETTL, V10, P409
[5]  
Badar Mohamed Elewa, 2013, INT CRIMINAL LAW REV, V11, P933
[6]  
Bartels LL., 2011, MULTISOURCED EQUIVAL, P115
[7]  
Bottini Gabriel., 2010, BACKLASH INVESTMENT, P297
[8]   The Conformity of Investments with the Law of the Host State and the Jurisdiction of International Tribunals [J].
Carlevaris, Andrea .
JOURNAL OF WORLD INVESTMENT & TRADE, 2008, 9 (01) :35-49
[9]  
Cordero-Moss Giuditta, 2008, OXFORD HDB INT INVES, P1207
[10]  
CRAWFORD J, 2012, BROWNLIES PRINCIPLES, P57