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on the factual circumstances of the case. Nonetheless, a threshold or test should be defined in order to avoid uncertainty. But those difficulties are even worse when it comes to investment arbitration, which includes two parties of a different nature that are not bound by reciprocal obligations

In: The Law & Practice of International Courts and Tribunals

compelled to go with the flow. While there is no formal rule of stare decisis in investment arbitration, tribunals tend to follow prior rulings, leading to the formation of a jurisprudence constante or de facto practice of precedent. 24 Collegiality among the members of this fraternity results in a

In: The Journal of World Investment & Trade

points form two distinct hurdles to the international legal force of domestic law. Despite these hurdles, however, there are a significant number of avenues through which issues grounded in national law may be raised in international investment arbitrations beyond the consideration of ‘facts’. The

In: The Journal of World Investment & Trade

© Koninklijke Brill NV, Leiden, 2011 DOI: 10.1163/187197311X552938 International Community Law Review 13 (2011) 111–124 I NTERNATIONAL C OMMUNITY L AW R EVIEW brill.nl/iclr The Element of Risk in International Investment Arbitration Marcin Kałduński Assistant Professor, Department of

In: International Community Law Review
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arbitral award in Benvenuti & Bonfant S.r.l. v. Congo (1980), which, according to some authors, allegedly constitutes the starting point of moral damages in investment arbitration. It then criticises the award in Desert Line v. Yemen (2008) for its insufficient reasoning, as well as the subsequent

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In: The Law & Practice of International Courts and Tribunals
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The eu , through the European Commission, has taken a tough stance on intra- eu investment arbitration, essentially seeing intra- eu investment arbitration as an anomaly to be combatted by all means. 7 Article 344 of the Treaty for the Functioning of the European Union ( tfeu ) 8 provides that

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In: The Law & Practice of International Courts and Tribunals

rights treaties should consider these legal texts as relevant rules for the interpretation of their respective investment agreements. 7 Taking into consideration the opposing views in legal writings and observing a growing reference to human rights in investment arbitration case law, one may notice

In: The Law & Practice of International Courts and Tribunals

* This article is the result of a joint effort of both authors. Attila Tanzi wrote Parts A, C and E; Filippo Fontanelli wrote parts B and D. A Introduction Investment arbitration 1 is a branch of compulsory dispute settlement with a hybrid nature. Claims that are normally based on

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In: The Law & Practice of International Courts and Tribunals
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customary international law in the proceedings is relatively unsurprising as Italy’s main cause of action, diplomatic protection, is defined and regulated by customary rules. Moreover, the synergy between customary rules and the relevant BIT typical of investment arbitration was enhanced by the rare

In: The Law & Practice of International Courts and Tribunals

, in treaty-based investment arbitration, is such that too often a determination on jurisdiction or admissibility is simply non-falsifiable. To the extent that these categories belong to a wider procedural tradition of general principles of procedure, an analysis of the practice outside investment

In: Brill Research Perspectives in International Investment Law and Arbitration