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The NAFTA Investment Dispute Settlement Mechanism

A Review of the Latest Case-Law

Patrick DUMBERRY

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Patrick Dumberry

The present article examines whether the modern State of Turkey (which was officially proclaimed in 1923) can be held responsible under international law for internationally wrongful acts which were committed by the Ottoman Empire against the Armenian population during and shortly after World War I. The first part examines whether Turkey should be considered as the ‘continuing’ State of the Ottoman Empire or whether it should instead be deemed as a ‘new’ State. Part 2 will examine the legal consequences in terms of international responsibility for considering Turkey as the ‘continuing’ State of the Ottoman Empire. This will include an examination of case law and State practice in the context of secession and cession of territory. The conclusion is that Turkey should be held responsible for all internationally wrongful acts committed by the Ottoman Empire (including acts of genocide) which were committed before its disintegration.

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Patrick Dumberry

This article examines how NAFTA tribunals have interpreted and applied the prohibition against arbitrary conduct in the context of claims of breach of the fair and equitable treatment standard under Article 1105. Tribunals have come to the conclusion that this prohibition is a stand-alone element under this provision and that it should also be considered as part of the minimum standard of treatment under custom. This position is no longer denied by NAFTA Parties. NAFTA tribunals have also consistently applied a high threshold of severity requiring that conduct be manifestly arbitrary to conclude that the host State has breached Article 1105. Based on this high threshold, NAFTA tribunals have held that a State conduct in violation of its own municipal law (or a contract) does not breach Article 1105. Thus, “something more” than simple illegality is required to constitute a violation of this provision. This article explains what that “something more” is.

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Patrick Dumberry

This article examines the controversial question of the clean hands doctrine in investment arbitration and how tribunals have analyzed this concept. Many tribunals have concluded that they lacked jurisdiction over a claim (or that it was inadmissible) because an investor had made its investment in violation of the host State’s laws. This article argues that this legality requirement is a manifestation of the clean hands doctrine. The main focus of the article is a critical review of the recent Yukos award. It assesses the Tribunal’s conclusion that the doctrine should not be considered as a general principle of law and its rejection of the application of the doctrine to violations committed by an investor during the post-establishment phase of its investment. The article argues that a number of investment tribunals have in fact already applied the clean hands doctrine in their awards to bar the admissibility of claims.

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Patrick DUMBERRY

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Patrick Dumberry

ABSTRACT

This article examines the following question: is a new successor State automatically bound by the multilateral treaties on investment promotion and protection to which the predecessor State was a party at the date of succession? The article critically assesses the continuity principle that was adopted under the 1978 Vienna Convention on succession to treaties in the context of the dissolution of a State and secession. It also examines the question of succession to the ICSID Convention, an example of a special category of multilateral treaties which create international organisations. It will be shown that there is no succession to the membership of an international organisation and that, accordingly, the practice of new States has been to adhere to the Center via a formal application (rather than by way of succession).

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Patrick Dumberry

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Fair and Equitable Treatment

Its Interaction with the Minimum Standard and Its Customary Status

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Patrick Dumberry

The fair and equitable treatment (‘FET’) standard is a type of protection found in BITs which has become in the last decades one of the most controversial provisions examined by arbitral tribunals. This book first examines the interaction between the ‘minimum standard of treatment’ (MST) and the FET standard and the question why States started referring to the former in their BITs. It also addresses the question whether the FET should be considered as an autonomous standard of protection under BITs. This book also examines the controversial proposition that the FET standard should now be considered as a rule of customary international law. I will show that while the practice of States to include FET clauses in their BITs can be considered as general, widespread and representative, it remains that it is not uniform and consistent enough for the standard to have crystallised into a customary rule. States also lack the necessary opinio juris when including the clause in their BITs.
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Patrick Dumberry

Abstract

This article examines the question of whether or not Turkey can be held responsible for internationally wrongful acts committed by the Ottoman Empire against the Armenian population before, during, and after the First World War. This article analyses the relevant rules of State succession to international responsibility based on the assumption that the break-up of the Ottoman Empire was a case of dissolution and that Turkey became a new State in 1923. I will consider several examples of State practice and case law in the context of dissolution of States as well as four specific circumstances where a new State should take over the obligations arising from the commission of an internationally wrongful act by the predecessor State before independence.

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Patrick Dumberry

The break-up of the Soviet Union, Yugoslavia and Czechoslovakia and the unification of Germany in the 1990s marked the dramatic return to center stage in international law of the issue of State succession. This book deals with one particularly controversial aspect of State succession that until now has not received much attention: the question of State succession to international responsibility.
In State Succession to International Responsibility the international lawyer and scholar Patrick Dumberry addresses the question, critical for our times, whether or not a new State may be held responsible for wrongful acts committed before its independence by the predecessor State. He also considers the reverse situation: whether or not a new State may claim reparations for wrongful acts committed before its independence by third parties and which affected the predecessor State or one of its nationals.
State Succession to International Responsibility contains the most comprehensive analysis ever published of doctrine and State practice related to these questions. It is the first attempt to examine systematically State conduct, both historical and modern, with a view to identifying the factors and circumstances under which rights and obligations of a predecessor State may be transferred to a new State.

Winner 2008 ASIL Certificate of Merit for High Technical Craftsmanship And Utility To Practicing Lawyers And Scholars.