Foreign Investment and the Status of Kosovo in International Law

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Foreign Investment and the Status of Kosovo in International Law

in The Journal of World Investment & Trade

References

2 Various designations are employed alternatively in this article to refer to the territory of Kosovo and the current authorities in Kosovo. Depending on the context, the latter are referred to as 'the government of the Republic of Kosovo' or 'the Provisional Institutions of Self-Government in Kosovo' (PISG), while Kosovo is sometimes referred to as 'the Republic of Kosovo'. As will appear from the following developments, the use of such terms does not imply the expression of any opinion whatsoever on the part of the author concerning the final legal status of Kosovo or of its authorities. 3 See Law 03/L-152 on Membership of the Republic of Kosovo in the International Monetary Fund and World Bank Group Organizations, adopted by the Assembly of the Republic of Kosovo on 29 May 2009, available at http://www.assenibly-kosova.org/common/docs/ligjct/2009_03-L-l 52_en.pdf. 4 See 'Kosovo Becomes the International Monetary Fund's 186th Member', IMF Press Release No. 09/240, 29 June 2009, available at http://www.imf.org/extemal/np/sec/pr/2009/pr09240.htm. 5 See 'Republic of Kosovo joins ICSID', ICSID News Release, 29 June 2009, at http://icsid.worldbank.org/. See 'Kosovo Joins World Bank Group Institutions', World Bank Press Release No. 2009/448/EcA, 29 June 2009, at http://web.worldbank.org/. See 'Hyseni: Kosovo "Desperate" For Foreign Investment', Agence France-Presse, 3 March 2009. Also 'Kosovo appeals for foreign investments', Agcnce France-Presse, 26 March 2009. 8 The current legal framework for foreign investment in the country is summarized in a brochure issued by the Investment Promotion Agency ofKosovo (IPAK), Investing in Kosovo (2008), available at http://www.eciks.org/ english/publications/investing_in kosovo/content/media/investorsguide_web.pdf.

See Thiirer and Burri, 'Self-determination', in R. Bemhardt (ed), Max Planck Encyclopedia of Public International Law, para. 44, available at www.mpcpil.com. 10 A. Orakhelashvili, 'Statehood, Recognition and the United Nations System: A Unilateral Declaration of Independence in Kosovo', 12 Max Plnnck UNYH (2008) 1, at 2. The author, writing approximately one year ago, considered that '[tlhese issues will no doubt be raised in due course before courts and beyond, and it may be premature to examine them at this stage' (emphasis added). z' R. Dolzer and C. Schreuer, Principles of International Investment Law (2008), at 3.

12 'Kosovo Declaration of Independence', 17 February 2008, at http://www.assembly-kosova.org/. For Serbia's official reaction, see 'Statement by H.E. Mr. Boris Tadic, President of the Republic of Serbia, 18 February 2008, available at http://www.un.int/serbia/Statements/32.pdf 'The Republic of Serbia will not accept the violation of its sovereignty and territorial integrity. The Government of Serbia and the National Assembly of the Republic of Serbia have declared the decision of the Pristina authorities null and void. Likewise, we are taking all diplomatic and political measures to prevent the secession of part of our territory'. 13 As of 11 July 2009, 62 out of 192 sovereign United Nations member states have formally recognised the Republic of Kosovo as an independent state. Notably, a majority of member states of the European Union (22 out of 27) and NATO (24 out of 28) have recognised Kosovo. See 'International Recognition of Kosovo', http://en.wikipedia.org/wiki/International_recognition_of_Kosovo, last accessed on 7 September 2009. t4 'Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo', 15 July 2008, S/2008/458, at para. xi.29. 15 UN GA Res. 63/3, 8 October 2008. '� See M. N. Shaw, International Law (2003), at 863. " M. Koskenniemi, 'Report of the Director of Studies of the English-speaking Section of the Centre', in M. Koskenniemi and P. M. Eisemann (eds), State Succession: Modification Tested Against the Facts/La succession d'Etats: la modification d l'epreuve des faits (2000), at 66. See also Brownlie, Principles of Public International Law (1998), at 650. 18 Among the major recent works on the principles of State succession are: Koskenniemi and Eisemann (eds), supra note 17; B. Stern, 'La succession d'Etats', 262 Collected Courses ofthe Hague Academy of International Law (1996), 9. Notable earlier works include D. P. O'Connell, State Succession in Municipal Law and International Law (1967).

'y We will just remind that atter the 1999 NATO bombings on Serbia, Kosovo was placed under the responsibility of the United Nations Interim Administration Mission in Kosovo (UNMIK) by Security Council Resolution 1244 (1999), which called for the 'establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo'. This de jacto international protectorate was supposed not to interfere with Serbia's official sovereignty over Kosovo, but since it assumed comprehensive administrative powers in Kosovo, it did in fact prevent Serbia from exercising its authority over Kosovo. See also UNMiK Regulation 2001/9 establishing a constitutional framework for provisional self-government in Kosovo, 15 May 2001. Also Stahn, 'Constitution without a State? Kosovo under the United Nations Constitutional Framework for Self-Government', (2001) 14 Leiden Journal of International Law 531. For a comprehensive analysis of the Kosovo issue in international law, see J. Crawford, The Creation of States in International Law, (2006), at 234, 252; Bothe and Marauhn, 'UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration', in C. Tomuschat (ed.), Kosovo and the International Community: A Legal Assessment (2002), at 231; Fierstein, 'Kosovo's Declaration of Independence: an Incident Analysis of Legality, Policy and Future Implications', 26 Boston University, International LawJournal (2008) 417. z° The point is made by J. d'Aspremont, 'Kosovo and International Law: A Divided Legal Scholarship' (2008), available at http://papers.ssrn. com/sol3/papers.cfrn?abstract_id=1272194. 21 A. Orakhelashvili, supra note 10, at 2. 22 Ibid. =i State succession is defined as 'the replacement of one State by another in the responsibility for the international relations of territory', Art. 2(1) of the 1978 Vienna Convention on Succession of States in Respect of Treaties, UNTS 1946, 3. =^ M. G. Kohen, 'Introduction', in Kohen (ed), Secession. Interrtational Law Perspectives (2006), at 3. Kohen adds that 'Yet, secession can also take the form of the separation of part of the territory of a State in order to be incorporated as part of another State, without the consent of the former'. Ibid. Some authors adopt a broader definition, including 'all cases of separation of States in which the predecessor State continues to exist in a diminished territorial and demographic form'. Ibid, at 2.

=5 Williams and Harris, 'State Succession to Debts and Assets: The Modern Law and Policy', 42 Harvard International LawJournal (2001) 355, at 362. 26 See e.g. Perritt, 'Resolving Claims when Countries Disintegrate: The Challenge of Kosovo', 80 Chicago- Kent Law Review (2005) 119, at 178. 27 See below, note 92. zH See Thiirer and Burri, supra note 9. Zy J. Crawford, supra note 19, at 415. See also Crawford, State Practice and International Law in Relation to Unilateral Secession. Report to Government of Canada concerning unilateral secession by Quebec, 19 February 1997, reprinted in A. F. Bayefsky, Self-determination in international law: Quebec and lessons leamed (2000), 31. 3� See Thurer and Burri, supra note 9, para. 43. Also Kohen, 'Le Kosovo: un test pour la communaute intemationale', in V. Chetail (ed), Cor�its, securite et cooperation. Liber Amicorum Victor-Yves Ghebali, (2007) 367, at 375. 3� A. Orakhelashvili, supra note 10, at 20. 3z Reference re Secession of Quebec [1998] 37 �M(1998). 1342, para. 155.

33 Ibid. 34 J. Crawford, supra note 19, at 4. 35 I. Brownlie, Principfes of Public International Law (2003) at 88. 36 J. Crawford, supra note 19, at 93. Sec also Brownlic, supra note 35, at 87-88. 3� American Law Institute, Restatement, Second,. Foreign Relations Law of the United States (1965), s 107, quoted by J. Crawford, supra note 19, at 93. 3s Opinion 1, Badinter Commission, 29 November 1991, 92 ILK 165. 3y J. Crawford, supra note 19, at 28. 4° Montevideo Convention on Rights and Duties of States, 26 December 1933, 165 Lt·rrs 17. 41 M. N. Shaw, supra note 16, at 178. 4z Montevideo Convention on Rights and Duties of States, supra note 40, Art. 1. ^3 See supra, note 12.

aa J. d'Aspremont, 'Regulating Statehood: The Kosovo Status Settlement', 20 Leiden Journal of International Law (2007), 649-668, at 654. Crawford acknowledges that the existence of an effective government is 'the most important criterion of statehood, since all the others depend on it'. J. Crawford, supra note 19, at 565. ^s See A. Orakhelashvili, supra note 10, at 9. Orakhelashvili doesn't support this view. �6 J. d'Asprc�nont, supra note 20. 47 J. d'Aspremont, supra note 44, at 655. 48 J. d'Aspremont, supra note 44, at 655. 49 See 'Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo', supra note 14. 511 See e.g. UNMIK, Regulation No. 2008/34 'on the Promulgation of the Law on the Supplementation and Amendment of the Labour Inspectorate Law adopted by the Assembly of Kosovo', 14 June 2008, at http://www.unmikonline .org/regulations/ unmikgazette/02english/ E2008reb'S/RE2008 � 34. pdf, which provides that the Special Representative of the Secretary-General is acting '[p]ursuant to the authority given to him under United Nations Security Council resolution (UNSCK) 1244 (1999) of 10 June 1999, [i]n conforrnity with sections 9.1.44 and 9.1.45 of the Constitutional Framework for Provisional Self Govemment in Kosovo (UtaM�x Regulation No. 2001/9 of 15 May 2001)'. 51 see Joint Action 200UI24/CFsP, OJ L 42, 16 February 2008, 92.

S2 Ibid., Art. 3. 53 A. Orakhclashvili, supra note 10, at 10. 54 J. Crawford, supra note 19, at 61. 55 See Thurcr and Burri, supra note 9, at para. 43. The authors argue that the recognitions granted to Kosovo 'should be seen as an acknowledgment of the fact that a new State has come into existence, regardless of how that State was created'. 56 A. Orakhelashvili, supra note 10, at 19-20. 5� A. Orakhelashvili, supra note 10, at 19-20.

58 C. J. Borgen, 'Kosovo's Declaration of Independence: Self-Determination, Secession and Recognition', AsiL Insights, 29 February 2008, at http://www.asil.org/insights080229.cfm. This view is mentioned, but not endorsed, by Borgen. ss R, Jennings and A. Watts (eds), Oppenheim's International Law (1992), at 183, quoted by C. J. Borgen, supra note 58. m A. Orakhelashvili, supra note 10, at 29. 61 A. Orakhelashvili, supra note 10, at 30. 62 UN GA Res. 2625 (xxv), First principle, para. 10. 63 See Leqal Consequences lor States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion 1971 Ecj Rep. 16, at 56, para. 126. �4 See J. d'Asprernont, supra note 44, at 663. Against the application of the non-recognition obligation in this case, d'Aspremont argues that: 'First, �...� from a general standpoint, recognizing an entity as a state does not amount to recognizing as legal the violation of the peremptory nonns that can have paved the way to its independence. Second, [...j in the particular situation of Kosovo, the bombardment of Yugoslavia did not lead directly to the independence of Kosovo, neither was it aimed at ensuring it. [...]. It is thcrcfore argued that recognizing Kosovo as a state in no way brings about recognition of the NATO intervention as legal'. Ibid. �5 See A. Orakhelashvili, supra note 10, at 6. The Badinter Commission emphasised in its Opinions I and 8 that the recognition of the successor states of the Sfry occurred in the context of the latter's disintegration as opposed to the right of secession of individual Yugoslav republics. M> See M. N. Shaw, supra note 16, at 865. « See M. N. Shaw, supra note 16, at 878-879.

s8 See Perritt, supra note 26, at 178. s9 An analogy can be drawn from the case of Taiwan, considered by most legal scholars as a non-State entity. Hsieh has shown that domestic courts of many countries dealing with Taiwan 'have employed various devices to ensure the State-hke status of Taiwan' P. S. Hsieh, 'An Unrecognized State in Foreign and Intemational Courts: the Case of the Republic of China on Taiwan', 28 Michigan Journal of International Lnw (2008) 765. Hsieh even argues that judicial recognition of Taiwan's existence as a State 'has risen to the level of customary international law' (at 768). This assertion may seem excessive, but it is true that, whereas national courts still frequently refuse to determine for themselves issues of statehood and consider that executive recognition is binding, they have sometimes distinguished between the 'external' and 'internal' consequences of non-recognition. See J. Crawford, supra note 19, at 17-18, and the jurisprudence quoted. In Hesperides Hotels Ltd v A��ean Turkish Holidays Ltd (1977), 1 QB 205, concerning the application by a British court of the law of the 'Turkish Federated State of Cyprus' despite non-recognition of that entity by the United Kingdom, Lord Denning stated that: 'The executive is concerned with the external consequences of recognition, vis-a-vis other states. The courts are concerned with the internal consequences of it, vis-a-vis private individuals. Sor far as the courts are concerned, there are many who hold that the courts are entitled to look at the state of affairs actually existing in a territory, to see what is the law which is in fact effective and enforced in that territory, and to give such effect to it - in its impact on individuals - as justice and common sense require: provided always that there are no considerations of public policy against it'. Quoted by J. C:rawford, supra note 19, at 18. In practice, despite the lack of fonnal relations, courts in foreign States explicitly and implicitly recognize that Taiwan meets the 'State' requirements for particular legal purposes (at 773). P. S. Hsieh, supra, at 765. Furthermore, 'legislation has sometimes had to be passed authorizing courts to treat unrecognized entities as 'law areas' for various purposes, in order to separate non-recognition from its consequences'. J. Crawford, supra note 19, at 18. The Statement of Lord Wilberforce in Carl Zeiss Stiftung v. Rayne·r & Keeler Ltd. (No. 2) [1967J 1 A.C. 853, 954 is also notcworthy : '[...J where private rights, or acts of everyday occurrence, or perfunctory acts of administration are concerned [...] the courts may, in the interests of justice and common sense, where no consideration of public policy to the contrary has to prevail, give recognition to the actual facts or realities found to exist in the territory in question'. '° J. Crawford, supra note 19, at 31. He gives the following examples: 'The 'A' Mandated territories were treated as States for the purposes of nationality, but were much less certainly States for other purposes. The Free City of Danzig was a State for the purposes of Article 71(2) of the Rules of the [Permanent Court of International Justice; whether it was a State for all purposes has been doubted'. Ibid. 71 J. Crawford, supra note 19, at 219.

�2 See Crawford, supra note 19, at 220. �3 See A. Goia, 'State Succession and International Financial Organizations', in M. Koskenniemi and P. M. Eisemann (eds), supra note 17, at 331. 74 C.F. Amerasinghe, Principle of the Institutional Law of International Organizations (2005), at 111. See also Mullerson 'The Continuity and Succession of States by Reference to the Former UssR and Yugoslavia', 42 ICLQ (1993), 477. �5 On the principles involved, see M. N. Shaw, supra note 16, at 889. �6 C. F. Amerasinghe, supra note 74, at 105. 77 Ibid. �e In fact, the constitutional provisions of international organizations do not always reserve full membership to 'States' (e.g. UN, IAEA, UNESCO, WHO, WIPO). Some refer to 'nations' (e.g. FAO) or 'countries' (e.g. IMF, IBRD, IFC). �9 H. G. Schemiers, 'International Organizations', in M. Bedjaoui (ed), International Law: Achievements and Prospects (1991), 67, at 80-81. The author went on to note that '[i]n practice it is not always easy to establish whether a particular territory should be accepted as a State. Occasionally provinces declare themselves independent and apply for membership in international organizations. In order to prevent political problems, no international organization accepts as members such units which apply for membership, callign themselves States', The attitude of the IMF with respect to Kosovo seems to contradict this assertion.

80 1978 Vienna Convention on Succession of States in Respect of Treaties, UNTS 1946, 3. 11 See A. Goia, 'State Succession and Intemational Financial Organizations', in M. Koskenniemi and P. M. Eisemann (eds), supra note 17, at 340. H2 Art. 4, Vienna Convention, supra note 80. $3 A. Goia, supra note 81, at 341. x^ U.N. GAOR, 1st Coinm, Annex 14g, at 582-83, U.N. Doc. A/C. 1/212 (1947), quoted by M. N. Shaw, supra note 16, at 890. 8s Report of the he 011 the Work of its 26th Session, Draft Articles on Succession of States in respect of Treaties, with Commentaries, Cottiinetitary to Art. 4, reproduced in Yearbook of the International Law COllllllissioll (1974), Vol. n, at 177 ff, para. 2.

81 Ibid, para. 10. e� Scherniers, 'International Organizations, Membership', in R. Bernhardt (ed), Max Planck Encyclopedia of Public Intemational Law 1320, at 1321. Also Vallat, 'Some Aspects of the Law of State Succession', 41 Grotius Society Transactions (1955) 123, at 134: 'We can say with some confidence that the new State docs not inherit a right of membership in international organizations and that the membership of the parent State continues. In other words, membership depends upon the continuing personality of the pre-existing State'. 11 D. P. O'Connell, supra note 18, Vol. 11, at 183. 11 ICSID Convention, Art. 67(a). It has been noted that with regard to the admission of non-original members, 'the articles of agreement of the financial institutions like the IMF and the so-called World Bank Group (IBRD, IFC, IDA) are to some extent exceptional. While in these cases admission to membership is subject to approval as well, the competent organs are afforded some measure of Hexibility in this respect. For instance, Article n, Section 2, of the Articles of Agreement of the IMF reads as follows: 'Memberhip shall be open to other countries at such times and in accordance with such terms as may be prescribed by the Board of Governors. These terms, including the terms of subscription, shall be based on principles consistent with those applied to other countries that arc already members'. K. G. Butler, State Succession and Membership in International Organizations (2001), at 23. 90 IBRD Articles of Agreement, Art. 2(1). See K. G. Buhler, supra note 89, at 23. `" Sec 'Statement on Membership of the Republic of Kosovo in the IMF', IMF Press Release No. 08/179, 15 July 2008, at http://imf.org/external/np/sec/pr/2008/pr08179.htnt. The press release contained the following precisions: 'Under the IMF'I prescribed procedures for membership applications, the application must first be investigated by the IMF's Executive Board. After its investigation, the Executive Board submits a report to the Board of Governors of the IMF with recommendations in the form of a Mcmbcrship Resolution. These recommendations cover the amount of quota in the IMF, the form of payment of the subscription, and other customary terms and conditions of membership. After the Board of Governors has adopted the Membership Resolution, the applicant country may become a member once it has taken the legal steps required under its law to enable it to sign the IMF's Articles of Agreement and to fulfill the obligations Of IMF membership*. 11 'Statement on Membership of the Republic of Kosovo in the IMF', supra note 91.

93Ibid. 9a Two memoranda were published by the IMF on these issues: Secession of Territories and Dissolution of Members in the Fund, 14 July 1992, and Issues of State Succession Concerning Yugoslavia and the Fund, 20 November 1992. The author of the present article was unfortunately unable to access these documents. vs Quoted by A. Goia, supra note 81, at 340. Goia points out that 'no distinction has been made, in this respect, between the 'newly independent States' and new States created in contexts other than decolonization'. 9s See I. F. I. Shihata, 'Matters of State Succession in the World Bank's Practice' in M. Mrak (ed), Succession of States (1999), 75. 9� Quoted by A. Goia, supra note 81, at 341 (emphasis added). 98 Convention on the Settlement of Investment disputes between States and Nationals of Other States, March 18, 1965, Doc. ICSID/2, 575 U.N.T.S. 159, 4 I.L.M. 524 (1965). �9 ICSID, Memorandum on Signature and Ratification, Acceptance or Approval of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, para. A(2).

too Law No. 03/L-152, supra note 3. 101 'Republic of Kosovo joins ICSID', ICSID News Release, 29 June 2009, at http://icsid.worldbank.org/. 102 On 9 April 2008, the Kosovo Assembly adopted the 'Constitution of the Republic ofKosovo', which came into force on 15 June, along with a first package of laws on various issues. See 'Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo', supra note 14, para. u.4. to3 See US Department of State, Bureau of Economic, Energy and Business Affairs, 'Investment Climate in 2009-Kosovo', February 2009, at http://www.state.gov/e/eeb/rls/othr/ics/2009/117388.htm. 104 Law No. 02/L-33 on Foreign Investment. Let us remind that UNMIK exercises its supervision on legislation adopted by the PISG. The law under consideration referred thus to UNMIK Regulation No. 2001/9 of 15 May 2001, 'On a Constitutional Framework for Provisional Self-Govemment in Kosovo, Chapter 5.1(d) and 9.1.26(a)'. 105 Unmik/Reg/2001/3 on Foreign Investment in Kosovo, 12 January 2001, athttp://www.unnuk online.org/rcgulations/2001 /reg03-Ol.html. 106 The provisions in that law regarding the settlement of dispute were terse: 'The courts ofKosovo shall have jurisdiction over the resolution of business disputes. Notwithstanding the above, the parties to a foreign investment may specify any arbitration or other dispute resolution procedure upon which they may agree, and if such an agreement between the parties so provides, any judgment resulting from such an agreed procedure shall be final and shall be enforceable, without review or appeal in any manner, in any court of competent jurisdiction in Kosovo' (Art. 17). 107 Law on Foreign Investment, Art. 1, supra note 104.

108Ibid., Art. 3. 109 Ibid., Art. 4. 110 Ibid., Art. 6. 111 Ibid., Art. 8. 112 Article 17 of the Law on Foreign Investment provides that 'The court or arbitral tribunal considering an Investment Dispute shall determine the issues in dispute in accordance with the substantive rules or laws agreed upon by the parties in writing. In the absence of such an agreement, the court or arbitral tribunal shall apply the substantive law applicable in Kosovo - excluding the private international law rules thereof- and such rules of public international law as may be applicable to the issues in dispute'. 113 Ibid., Art. 16. ' 'The present law - and the rights, guarantees, privileges and protections established by the present law - shall apply equally to foreign investors that invested in Kosovo prior to the effective date of the present law �...�' I' (Ibid., Art. 28). On the controversy over the law applicable to government contracts with foreign investors in a context of State succession, see e.g. M. Koskenniemi, 'Report of the Director of Studies of the English-speaking Section of the Centre', in M. Koskenniemi and P. M. Eisemann (ends), supra note 17, at 107-108. "5 This possibility is expressely referred to in Article 26.2 of the Law on Foreign Investment. '�� 1978 Vienna Convention, supra note 80. 117 See M. N. Shaw, supra note 16, 871. Serbia is a signatory of the Convention. us 1972i Vienna Convention, Art. 6, supra note 80.

11')fbid., Art. 16, applicable to 'newly independcnt States'. 1211 Ibid., Art. 35(l). 121 Ibid., Art. 35(2). See A. Goia, supra note 81, at 340. 122 M. N. Shaw, supra note 16, at 880. 123 M. N. Shaw, supra note 16, at 879. 'z4 M. N. Shaw, supra note 16, at 880. M. N. Shaw, supra note 16, at 880. 126 As of February 2009, Serbia is a party to 41 BITS with the following countries: Albania, Austria, Belarus, Belgium and Luxemburg, Bosnia and Herzegovina, Bulgaria, Russia, China, Cyprus, Croatia, Cuba, Czech Republic, Egypt, Finland, FY1Z Macedonia, France, German, Ghana, Greece, Guinea, Hungary, Holland, India, Iran, Israel, Italy, Kuwait, Libya, Lithuania, Morocco, Nigeria, Poland, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, UK, Ukraine, Zimbabwe. 127 Central European Free Trade Agreement, 21 December 1992, 34 IL�1 (1995) 8-42, also available at http://www.worldtradelaw.net/fta/agreements/cefta.pdf.

128 See 'Agreement between the United Nations Interim Administration Mission in Kosovo (UNMIK) acting for the Provisional Institutions of Self-Government in Kosovo and the Council of Ministers of the Republic of Albania on the Reciprocal Promotion and Protection of Investments', 19 February 2004, at http://www.unmik online .orgl archives/E UinKosovol upload/! nvestment%20Protection%20Agreement%20with%20Albania. pdf. 129 See 'Kosovo and Turkey sign investment protection agreement', in UNMIK Economic News, 8-9 April 2006, at http://www.unmikonline.org/archives/EUinKosovo/llpload - economic/Economic%20News%2008%2009 .pdf. 130 See 'Agreements on promotion and protection of Investments' on the website of the Investment Promotion Agency of Kosovo, at http://www.invest-ks.org/?cid=2,130 (accessed on 28 August 2009). '3' J. d'Aspremont, supra note 44, at 655-656. 132 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 1. ' Report of Sir Gerald Fitzmaurice on the Law of Treaties, Yearbook of the Internationaf Law Commission (1958), Vol. n, at 24 (emphasis added). '3^ Report of Mr. H. Lauterpacht on the Law of Treaties, Yearbook of the Intemational Law Commission (1953), vol. tt, at 137.

r3s C.H. Shreuer, The ICSID Convention: A Commentary (2001), at 169. 136 C.H. Shrcuer, supra note 135, at 169. He conceded however that '[p]ractice under the ICSID Convention is scant. The Soviet Union never was a Contracting State. Czecoslovakia became a Contracting State in August 1992. After its disappearance, both the Czech and the Slovak Republics signed and ratified the Convention as new parties. Yugoslavia had been a Contracting State since 1967. Bosnia and Herzegovina (1997), Croatia (1998), the former Yugoslav Republic of Macedonia (1998) and Slovenia (1994) became parties after their independence'. Ibid, note 241. �3� IcsiD Convention, Preamble, para. 7, provides that 'no Contracting State shall by the mere fact of its ratification, acceptance or approval of this Convention and without its consent be deemed to be under any obligation to submit any particular dispute to conciliation or arbitration'. See UNCTAD, Dispute Settlement. International Centre for Settlement of Investment Disputes, 2.3 Consent to Arbitration, prepared by C. Schreuer (2003), UNCTAD Doc. UNCTAD/EDM/Misc.232/Add.2, at 5. See also U. Grusic, 'The Evolving Jurisdiction of the International Centre for Settlement of Investment Disputes', 10 Journal of World Investment & Trade 1 (2009), 69, at 71 ff. �3H UNCTAD, Dispute Settlement, Intemational Centre for the Settlement of Investment Disputes. 2.3 Consent to Arbitration (UNCTAD/EDM/Misc.232/Add.2), at 6. Also R. Dolzer and C. Schreuer, supra note 11, at 238. rs9 See C.H. Shreuer, supra note 135, at 142, on problems which may arise from a succession of States, when the consent to arbitration was given by the predecessor State.

�°° Law on Foreign Investment, Art. 16, supra note 104. 141 For a case of unclear provision in a national law, leading to a dispute as to whether the host State had given its consent, see SPP v. Egypt, Decision on Jurisdiction I, 27 November 1985, 3 IcsiD Reports 112. See R. Dolzer and C. Schreuer, supra note 1 l, at 240. 142 'The present law - and the rights, guarantees, privileges and protections established by the present law - shall apply equally to foreign investors that invested in Kosovo prior to the effective date of the present law [...]' ]' (Law on Foreign Investment, supra note 104, Art. 28). m3 On the applicability of BtTs to investment made prior to the treaty's entry into force: see R. Dolzer and M. Stevens, Bilateral investment treaties (1995), at 45-47.

�°° Article 35 of the Ie) Statute provides that '1. The Court shall be open to the states parties to the present Statute. 2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council [...]'. 145 See P. Jonkman, 'The Role of the Permanent Court of Arbitration in International Dispute Resolution', 279 Collected Courses of the Hague Academy of International Law (2000) 9.

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