Intl Courts PV T Public
Intl Courts PV T Public
Intl Courts PV T Public
INTRODUCTION
5. See, e.g., The Case of the S.S. “Lotus” (Fr. v. Turk), Judgement,
1927 P.C.I.J. (ser A), No. 10, (Sept. 7) ¶ 44 (“International law governs re-
lations between independent States. The rules of law binding upon States
therefore emanate from their own free will as expressed in conventions or
by usages generally accepted as expressing principles of law and established
in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims. Restric-
tions upon the independence of States cannot therefore be presumed.”);
see also. ANDREAS F. LOWENFELD, PUBLIC LAW IN THE INTERNATIONAL ARENA: CONFLICT
OF LAWS, INTERNATIONAL LAW AND SOME SUGGESTIONS FOR THEIR INTERACTION, 163
COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW (1979); WORTLEY,
supra note 2.
6. MAYER & HEUZÉ, supra note 1; FAWCETT ET. AL., supra note 1; Stephanie
De Dycker, Private International Law Disputes before the International Court
of Justice, 2 J. Int’l Disp. Settlement 475, 476 (2010).
7. Arroyo, supra note 3; Fernández Arroyo, El derecho internacional
privado en el diván – Tribulaciones de un ser complejo, in LIBRO HOMENAJE A
ROBERTO RUIZ DÍAZ LABRANO 17 (2013).
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JUSTICE
17. The Corfu Channel Case (U.K v. Alb.), Merits, 1949 I.C.J. Rep. 5, ¶
25 (Apr. 9) (“But to ensure respect for international law, of which it is the
organ, the Court must declare that the action of the British Navy consti-
tuted a violation of Albanian sovereignty”); Certain German Interests in Pol-
ish Upper Silesia (Ger. v Pol.), Merits, 1926 P.C.I.J. (ser. A) No. 7 at ¶ 52
(May 25) (“[f]rom the standpoint of International Law and of the Court
which is its organ…”); LaGrand (Ger. v. U.S.), Judgement, 2001 ICJ Rep. 466
at ¶ 486; Nottebohm (Liechtenstein v Guatemala, Judgement, 1955 I.C.J.
Rep. 4, ¶ 420-421 (Apr. 6). See also ROBERT KOLB, THE INTERNATIONAL COURT OF
JUSTICE 57 (2013); ANDREAS ZIMMERMAN ET AL., THE STATUTE OF THE INTERNATIONAL
COURT OF JUSTICE 731 (2d ed. 2012).
18. Mills, supra note 2; Th.M de Boer, Living Apart Together: the
relationship between public and private international law, 57 NETH. INT’L L.
REV. 183–207 (2001); C.G. WEERAMANTRY, UNIVERSALISING INTERNATIONAL LAW
(Brill Nijhoff 2004).
806 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [56:797
29. Id.
30. Certain recent decisions of international courts have noticed that
trend of making the concept of ordre public a concept of public international
law. See, e.g., World Duty Free Company Limited v. Rep. of Kenya, Award,
ICSID Case No. ARB/00/7, Award, ¶¶ 138–139 (Oct. 4, 2004) (“The con-
cept of public policy (“ordre public”) is rooted in most, if not all, legal sys-
tems . . .”In this respect, a number of legislatures and courts have decided
that a narrow concept of public policy should apply to foreign awards. This
narrow concept is often referred to as “international public policy” (“ordre
public international”) “The term ‘international public policy’, however, is
sometimes used with another meaning, signifying an international consensus
as to universal standards and accepted norms of conduct that must be ap-
plied in all fora.”) See Pierre Lalive, Ordre public transnational (ou réellement
international) et arbitrage international, 3 REVUE DE L’ARBITRAGE 329 (1986).
31. A similar situation arose more recently in 2009, when the ICJ was
called upon to settle a dispute between Belgium and Switzerland. The case,
however, was discontinued on Belgium’s request and as a result was
removed from the ICJ’s case list in 2011. We do not know whether the ICJ
would have assumed jurisdiction or what it would have decided on the
merits. Had it assumed jurisdiction, the case would have required the ICJ to
interpret yet another private international law instrument. As in Boll, the
result of such a decision would have affected the rights and obligations of
public and private actors and the development and application of both public
and private international law. See Jurisdiction and Enforcement of
Judgments in Civil and Commercial Matters (Belg. v Switz.), Application,
2009 I.C.J. Rep. No. 145 (Dec. 2009).
32. De Dycker, supra note 6, at 486.
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37. Nottebohm (Liech. v. Guat.), Second Phase, 1955 I.C.J. Rep. 18, at
4 (Apr. 6).
38. Counter-Memorial of Guatemala, Nottebohm (Liech. v. Guat.).
Pleadings, 1955 I.C.J. 184, ¶¶ 11–41 (Apr. 20, 1944).
39. Id. ¶ 24.
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45. Id. ¶¶ 20–25. Where the court reviews the general practice of
States courts and tribunals and scholarly writings.
46. International Status of South-West Africa, Advisory Opinion, 1950
I.C.J. Rep. 128, ¶ 148 (separate opinion by McNair, J.). Cited by Rosalyn
Higgins, The International Court of Justice and Private International Law
Thoughts, in THEMES AND THEORIES: SELECTED ESSAYS, SPEECHES, AND WRITINGS IN
INTERNATIONAL LAW 1310 (2009) (“The way in which international law borrows
from its source is not by means of importing private law institutions ‘lock,
stock and barrel’, ready-made and fully equipped with a set of rules... In my
opinion, the true view of the duty of international tribunals in this matter is
to regard any features or terminology which are reminiscent of the rules and
institutions of private law as an indication of policy and principles rather than
as directly importing these rules and institutions.”).
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47. Barcelona Traction, Light and Power Co. (Belg. v. Spain), Second
Phase, 1970 I.C.J. Rep. 3, ¶ 50 (Feb. 5)
48. Id. ¶ 70.
49. Id.
50. Case Concerning Ahmadou Sadio Diallo (Guinea v Dem. Rep. Congo),
Preliminary Objections, 2007 ICJ Rep. No. 924, (May 24).
51. The claims regarding this earlier arrest and detention were found
inadmissible, as they were raised late and not sufficiently connected to the
claims made in the application instituting the proceedings.
52. See id. ¶¶ 15–20.
53. Diallo, 2007 ICJ Rep. No. 924 ¶¶ 31 and 77.
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transnational-et-arbitrage-international-revdarb-1986-at-329-et-seq/
[https://perma.cc/WNQ9-FE6F].
58. Higgins, supra note 46, at 1310.
59. Jurisdictional Immunities of the State (Ger. v. Italy: Greece
intervening), Judgment, 2012 I.C.J. Rep. 143, ¶ 78 (Feb. 3).
60. See id. ¶¶ 27-36.
61. Id.
62. For a critical appraisal of this solution, see Andrea Bianchi, Gazing at
the Crystal Ball (Again): State Immunity and Jus Cogens beyond Germany v.
Italy, 4 J. INT’L DISP. SETTLEMENT 457, 457 (2013); Burkhard Hess,
Staatenimmunität und ius cogens im geltenden Völkerrecht: Der
818 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [56:797
76. Id.
77. Id. at 177.
78. Case No. 1512 of 1990, (unpublished partial award) (ICC Int’l Ct.
Arb.) cited in GRIGERA NAÓN, supra note 68, at 177.
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A. Investor-State Arbitration
Investor-State arbitration combines public and pri-
vate international law, as a matter of substance, onto the
B. Establishing jurisdiction
Investor-State arbitration, like international com-
mercial arbitration, is based on the agreement of the par-
ties. The investor and the State may sign an arbitration
clause, following the traditional method of consent in in-
ternational commercial arbitrations. Arbitration clauses
arising out of direct agreement have been the basis of
numerous investor-State arbitrations.110 More recently,
investors have used bilateral investment treaties (“BITs”)
or multilateral treaties, which establish the terms and
conditions for private investment by nationals and com-
panies of one State in another State, to establish juris-
diction.
BITs and multilateral treaties do not, of them-
selves, establish jurisdiction. Rather, they are an offer by
States to eligible investors offering access to arbitration.
Nationals of another State party to the treaty can accept
this offer simply by commencing arbitration proceedings.
In many investor-State arbitrations, States will raise juris-
dictional objections that the tribunal must deal with be-
fore proceeding to the merits. Tribunals decide the ap-
plicable law to issues of jurisdiction, typically pursuant to
a mix of public and private international law.
In Amco v. Indonesia,111 jurisdiction was established
by virtue of an investment application accepted by the
Government of Indonesia. In the Tribunal’s opinion, the
proper method for determining whether consent to arbi-
tration had been given was to interpret the investment
application in the spirit of the ICSID Convention and Indo-
nesia’s private international law. The Tribunal determined
the intent of the parties “from the normal expectations
110. See, e.g., Pierre Lalive, The First ‘World Bank’ Arbitration (Holiday
Inns v. Morocco)—Some Legal Problems, 51 BRIT. YEAR BOOK OF INT’L. LAW 123,
128 (1980); Adriano Gardella SpA v. Government of the Ivory Coast, Case
No. ARB/74/1, 1 ICSID Rep. 287 (1977); Kaiser Bauxite v. Government of
Jamaica, Case No. ARB/74/3, 1 ICSID Rep. 301 (1975); Klockner v. the
Republic of Cameroon, Case No. ARB/81/2, 2 ICSID Rep. 10 (1983); SOABI
v. State of Senegal, Case No. ARB/82/1, 2 ICSID Rep. 179 (1984); Liberian
Eastern Timber Corporation (LETCO) v. Republic of Liberia, Case No.
ARB/83/2, 2 ICSID Rep. 347 (1986).
111. Amco v. Rep. of Indonesia, Case No. ARB/81/1, 1 ICSID Rep. 398
(1983).
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of the parties” but also from “the aim and the spirit of
the Washington Convention as well as of the Indonesian
legislation and behaviour.”112
In SPP(ME) v. Egypt113 the Tribunal held that both
public and private international law were relevant for es-
tablishing jurisdiction. In that case, jurisdiction was
based on a provision of Egyptian legislation, which pur-
ported to constitute consent to ICSID arbitration. The is-
sue was whether the legislation in question created an in-
ternational obligation to arbitrate under the ICSID
Convention. In determining this issue, the Tribunal re-
jected the contention that consent to arbitrate should be
interpreted solely in accordance with either the rules of
treaty interpretation or Egypt’s private international law.
Rather, the Tribunal found both relevant and applied the
Vienna Convention on the Law of Treaties,114 as directed
by public international law, and rules of Egyptian statu-
tory interpretation, as directed by private international
law.
These awards suggest that questions of jurisdic-
tion are governed by their own system of mixed public
and private international law.
112. Id.
113. SPP(ME) v. Arab Republic of Egypt, Case No. ARB/84/3, 3 ICSID Rep.
142 (1988).
114. The tribunal treated the Egyptian legislation as if it were a unilateral
declaration. The Vienna Convention applies, at least in this case, mutatis
mutandis to unilateral declarations.
115. While it may seem that the tribunal’s basis of jurisdiction would
determine the law applicable to it, tribunals have consistently held that the
law governing the merits is independent of the law governing jurisdictional
issues. Cf. CMS Gas Transmission Company v. The Republic of Argentina,
ICSID Case No. ARB/01/8, Decision on Jurisdiction, ¶ 41 (July 17, 2003); cf.
Christoph Schreuer, Jurisdiction and Applicable Law in Investment Treaty
Arbitration, 1 MCGILL J. OF DISP. RESOL. 1 (2014).
834 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [56:797
136. See, e.g., El Paso Energy Int’l Co. v. Argentine Rep., ICSID Case No.
ARB/03/15, ¶¶ 132–41 (2011); Tokios Tokelés v. Ukraine, ICSID Case No.
ARB/02/18, ¶¶ 140–43 (2007); Sempra Energy Int’l v. Argentine Rep.,
ICSID Case No. ARB/02/16, ¶ 236–38 (2007); Azurix Corp v. Argentine
Rep., ICSID ARB/01/12, ¶¶ 66–67 (2006); CMS Gas Transmission Co. v.
Rep. of Argentina, ICSID Case No. ARB/01/9, ¶¶ 116–17 (2005).
137. Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, ¶ 140
(2007).
138. El Paso Energy Int’l Co. v. Argentine Rep., ICSID Case No.
ARB/03/15, ¶ 135 (2011). The Tribunal endorsed comments in Wena
Hotels and supported its conclusion by reference to the academic opinion of
Prosper Weil. Id. ¶¶ 132–34; see also Weil, supra note 128.
139. See, e.g., Agreement on Encouragement and Reciprocal Protection of
Investments, Arg.-Neth., Oct. 1, 1992, 2242 U.N.T.S. 205.
140. Fedax N.V. v. Rep. of Venezuela, ICSID Case No. ARB/96/3, ¶ 30
840 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [56:797
(1998).
141. Id. ¶¶ 29–30.
142. Maffezini v. Kingdom of Spain, Case No. ARB/97/7, 5 ICSID Rep. 419
(2000); see also Antoine Goetz v. Republic of Burundi, Case No. ARB/95/3,
6 ICSID Rep. 3 (1999).
143. Maffezini,, Case No. ARB/97/7, ¶¶ 50–57, 77.
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176. Eureko B.V. v. Poland, Partial Award, ¶¶ 176–8 (Ad Hoc UNCITRAL
Arb. Aug. 19, 2005).
177. Agreement on the Reciprocal Promotion and Protection of
Investments, Fr.-Mex., Nov. 12, 1998, 249 Journal Officiel de la République
Française 17062.
178. Agreement for the Reciprocal Promotion and Protection of
Investments, Arg.-Mex., Nov. 13, 1996, 2033 U.N.T.S. 293.
179. Gemplus, S.A., SLP S.A., Gemplus Industrial S.A. & Talsud S.A. v.
Mexico, ICSID Case Nos. ARB(AF)/03/3 and ARB(AF)/04/3, Award, ¶ 13.82
(June 16, 2010).
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3. Sovereign Immunity
202. LEW, MISTELIS & KROLL, supra note 93, at 775; SCHREUER, supra note
122, at 1153.
203. ETI Euro Telecom Intl NV v. Republic of Bolivia [2008] EWCA Civ
880, [2009] WLR 665.
204. Id. ¶¶ 110–114.
205. Id. ¶ 112.
206. Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, art. 3, Jun. 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38.
207. SCHREUER, supra note 148. at 1152–53. This is true of ICSID
arbitration, as Article 55 of the ICSID Convention states that the rules of
recognition and execution in Article 54 do not override the laws relating to
sovereign immunity in the State where execution is sought. International
Centre for Settlement of Investment Disputes, Convention on the
Settlement of Investment Disputes Between States and Nationals of Other
States, art. 42(1), Oct. 14, 1966, 17 U.ST. 1270, 575 U.N.T.S.
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4. Conclusion
214. This paper acknowledges that there is still, to this day, considerable
debate as to the exact nature of the Tribunal. For the purpose of this
paper, the Tribunal is classified as hybrid in nature because it has the ability
to hear both public and private international law issues and apply both public
and private international law.
215. John R. Crook, Applicable Law in International Arbitration: The Iran-
U.S. Claims Tribunal Experience, 83 AM. J. INT’L L. 278, 279 (1989).
860 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [56:797
226. Oil Field of Texas, Inc. v. Iran, 1 Iran-U.S. Cl. Trib. Rep. 347, 361
(1982).
227. Amoco Int’l Fin. Corp. v. Iran, 15 Iran-U.S. Cl. Trib. Rep. 189, 223,
246–48 (1987); similar determinations of applicable law were made in: Sha-
hin Shaine Ebrahimi v. Iran, 30 Iran-U.S. Cl. Trib. Rep. 174 (1994); Nat’l Ira-
nian Oil Co., 10 Iran-U.S. Cl. Trib. Rep. 180, 184–187 (1986).
228. McCollough and Company, Inc. v. Ministry of Post, Telegraph and
Telephone, 11 Iran–U.S. Cl. Trib. Rep. 3, 26–31 (1986); Sylvania Technical
Systems Inc v. Iran, 8 Iran–U.S. Cl. Trib. Rep. 298, 320–322 (1985).
229. Sea-Land Service, Inc. v. Iran, 6 Iran–U.S. Cl. Trib. Rep. 149 (1984);
Rankin v. Iran, 17 Iran–U.S. Cl. Trib. Rep. 135 (1986).
230. Jurisdiction Over Claims of Persons With Dual Nationality, 5 Iran-U.S.
Cl. Trib. Rep. 251 (1984).
231. Crook, supra note 215, at 280.
864 COLUMBIA JOURNAL OF TRANSNATIONAL LAW [56:797
232. Id.
233. Mobil Oil Iran, Inc. v. Iran, 16 Iran-U.S. Cl. Trib. Rep. 3, 27 (1987)
(finding that it did not consider it appropriate that the Agreement be
governed by the laws of one party).
234. MOHEBI, supra note 217, at 120.
235. Id.
236. Harnischfeger Corp v. Ministry of Roads and Transportation, 7 Iran–
U.S. Cl. Trib. Rep. 90 (1984).
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C. Conclusion
To this day, the exact nature of the Tribunal is dis-
puted. However, an analysis of the relevant awards deliv-
ered by the Tribunal demonstrates that it has jurisdiction
to adjudicate both public and private claims and apply
both public and private international law. In this sense, it
has been said that the Tribunal “somehow exists and op-
erates on the borderline of public and private interna-
tional law, sometimes falling in the domain of one and
sometimes in that of the other.”240 We would argue that
it is better characterized as a hybrid form of dispute
resolution acting at the confluence of public and private
international law.
CONCLUSION
237. Id. at 99; see also Queens Office Tower Assocs. v. Iran Nat'l Airline
Corp., 2 Iran–U.S. Cl. Trib. Rep. 247, 250 (1983).
238. Economy Forms Corp v. Iran, 3 Iran-U.S. Cl. Trib. Rep. 42 (1984).
239. Id. at 48.
240. Aida B. Avanessian, The New York Convention and Denationalised
Arbitral Awards (With Emphasis on the Iran-United States Claims Tribunal), 8
J. Int. Arb. 5, 8 (1991).
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