Search Results

Restricted Access

Sanum Investments Limited v The Government of the Lao People’s Democratic Republic

PCA Case No. 2013–13, UNCITRAL Arbitration, Award on Jurisdiction, 13 December 2013 (Andrés Rigo Sureda, Bernard Hanotiau, Brigitte Stern)

Christina Binder

Restricted Access

Christina Binder

The Commission of the European Union (EU) sees intra-EU bilateral investment treaties (BITs) as incompatible with the overall structure of European Union law. Against this background, certain Member States have started to terminate their treaties. Also, some of the new Member States have, in their role as Respondents in intra-EU BIT arbitrations, asserted inter alia that the intra-EU BITs had been automatically terminated upon their accession to the EU and that BIT provisions were inapplicable because of the operation of EU law. This contribution deals with these questions from a treaty law perspective and examines the alleged conflict between EU law and intra-EU BITs in investment cases as well as the consensual termination of intra-EU BITs, including the sunset clauses incorporated therein. It argues that if intra-EU BITs are already ‘in action’, their protection usually persists. On the other hand, investors enjoy only limited protection when States agree to terminate an intra-EU BIT by consent.

Restricted Access

Series:

Christina Binder

The concept of unjust enrichment is usually referred to as a general principle of law. This is supported by comparative legal analysis. Remedies against unlawful shifts of assets exist in nearly all contemporary domestic legal systems. Also international arbitral tribunals accept unjust enrichment as a general principle of law in their case law; as did the Iran-US Claims Tribunal in its jurisprudence. Thus, there is undeniable support for the claim that unjust enrichment constitutes a general principle of law. Still, the exact contours of the concept of unjust enrichment remain disputed. Unjust enrichment is not a unitary concept. This presentation argues accordingly that one has to look into each specific fact situation to see whether a claim based on unjust enrichment is admissible. This will be shown with particular focus on contracts/treaties tainted with illegality.