IIA Flashcards
What term does Shalakany use to describe IIA’s process of discrimination?
Disciplinary bias - a preference of public/private divide over public regulatory framework.
What ideological assumption does Shalakany say underpins IIA?
There is a ‘binary opposition’ between the individual and society, and that imperatively contracts are to be honoured rather than breached.
What three assumptions guide the ideology of IIA?
- Arbitration is suited for resolving contractual, not political disputes.
- Parties assumed to be equal, rather than ‘coercive exercise of power between unequals.’
- Arbitration is concerned with property rights, not issues of sovereignty.
Shalakany quotes [?] to say what about the assumption of equals?
Felix Cohen, saying it is “transcendental nonsense” to refer to multinational companies, with profits exceeding the GDPs of countries thy contract with, as being equals.
Why is the US District Court decision in Texaco case exceptional?
Referring to the ‘Act of State doctrine’, the Court said nationalisation is not arbitrable.
What did Professor Dupuy say about the ‘contrat administratif’ in the Libyan Oil case?
Referring to that doctrine of the state exercising coercive power, Dupuy deemed it ‘inapplicable’ in either national or international law.
The case of Libya v American Oil Co (LIAMCO) concerned how much in damages, following transgression of what principle by what process?
$80m following nationalisation, which even if lawful, was a source of liability, given that it transgresses against the ‘inviolable principle’ of property.
How does Kuwait v Aminoil differ?
Though the damages were earmarked as $83m following nationalisation of oil resources, the tribunal said the ‘changed circumstances’ of it becoming a post colonial state (like Libya) meant that it enjoyed ‘special advantages.’ These advantages rendered the stabilisation clause no longer absolute.
In which case were individuals able to be admissible parties for a claim?
Abaclat (ICSID): 30k Italian investors in Argentina.
What is the ICSID’s stated aim?
To “strengthen partnership between countries in cause of economic development… to stimulate flow of international private capital by overcoming fear of arbitrary and uncompensated expropriation.”
Which countries have withdrawn from ICSID?
Bolivia, Ecuador, Venezuela, possibly Argentina; because ‘ICSID is biased towards investors.’
What does Sornorajah say about this emerging field of law?
That there is no settled law of international investment protection.
What early case states the philosophy of free trade? What did it lead to?
Vitoria - law should further free movement of trade globally - equal treatment for foreign traders.
It led to gunboat diplomacy.
What event precipitated US challenges against Latin America?
During junta and mob attacks against general populace and property, both national and American property was damaged.
In the US cases v Latin America, what were the views of Calvo and Cordell Hull?
Calvo (Latin American jurist): considered it fair that American factory owners, suffering losses through burning, should receive equal treatment with native property owners.
Hull: foreign owners should be treated favourably. It was irrelevant that local owners would lose out on compensation; it was fair and adequate to hold such. He says compensation should be prompt, adequate and effective.
