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The Protection of Foreign Investments in Disputed Maritime Areas
Abstract
Where the rights of foreign investors are harmed in disputed maritime areas, the question arises whether these investors can invoke international investment agreements (IIAs) to seek redress. IIAs cover both bilateral investment treaties (BITs) and multilateral investment agreements (MIAs). BITs can be described as ‘reciprocal legal agreement[s] concluded between two sovereign States for the promotion and protection of investments by investors of the one State (“home State”) in the territory of the other State (“host State”)’. Reciprocal rules and protections of investments may also increasingly be found in multilateral agreements, which can be seen – at least from this perspective – as MIAs. IIAs are the primary instruments for the protection of foreign investments in international investment law. Typical provisions contained in IIAs include definitions of the notions of investment and investor, substantive protections of foreign investors (eg, concerning expropriation, fair and equitable treatment, full protection and security), and dispute settlement clauses (usually providing for both investor-state and state-to-state arbitration).
But do they apply to investments in disputed maritime areas? And if this is the case, can an arbitral tribunal established under an IIA’s dispute settlement clause make all findings of fact and law required to apply the IIA without exceeding the scope of its jurisdictional mandate?
This chapter seeks to answer these questions. In so doing, it will define the concept of ‘disputed maritime areas’ for present purposes (section 2). Next, it will address the spatial scope of IIAs as a matter of substantive law in relation to maritime areas generally and disputed maritime areas specifically (section 3). Thereafter, this chapter will turn to specific challenges of procedural law raised by investor-state dispute settlement in relation to investments in disputed maritime areas (section 4). An ensuing section will assess the different approaches investment tribunals could follow in dealing with the aforementioned challenges (section 5), followed by concluding remarks (section 6).
... Indeed, it may be doubted that investment tribunals have jurisdiction ratione materiae to make determinations of breaches of rules of international law not included in the jurisdictional provision(s) of the relevant IIA, particularly where inter-State disputes of political significance are concerned. 23 In addition, there is a closely connected, and in the context of investor-State arbitration inextricably linked, issue of jurisdiction ratione personae because Latvia and other affected Contracting Parties to the Spitsbergen Treaty are not parties to the proceedings. 24 Previous investment tribunals have avoided such determinations and indicated in obiter dicta that they would be unable to make prior determinations of breaches of international law other than the provisions of the relevant IIA. 25 Against this background, a legally binding decision of the snow crab dispute would more appropriately be sought before a judicial or arbitral inter-State dispute settlement body with primary jurisdiction to decide on the interpretation and application of the Spitsbergen Treaty, such as the International Court of Justice. ...
On 1 April 2020, the Latvian fishing company SIA North Star and its owner Peteris Pildegovics initiated an investor-State arbitration against Norway (Peteris Pildegovics and SIA North Star v. Kingdom of Norway) at the International Centre for Settlement of Investment Disputes (ICSID). This case is not only Norway’s first ever ICSID case, but also the first publicly known investor-State arbitration in which an operator of a fishing vessel has brought a claim against a coastal State for allegedly unlawful exercise of prescriptive and enforcement jurisdiction in relation to fisheries. The case raises intricate questions concerning the limits of jurisdiction ratione materiae and jurisdiction ratione personae of investment tribunals.
Available accounts on jurisdiction, effective control, and the reach of human rights protections fail to provide a coherent construction that is principled and applicable across the board, within and beyond territorial borders. The “functional jurisdiction” model posited herein resolves these incongruities by looking at the normative foundation of sovereign authority overall, predicated on an exercise of “public powers” through which State functions are discharged, taking the form of policy delivery and/or operational action, whether inland or offshore, and which translates into “situational” control. Using the pending case of S.S. and Others v. Italy as an illustration, the article focuses on the sovereign-authority nexus that unites a specific state with a specific individual in a specific situation, triggering human rights obligations even through mechanisms of “contactless control” exercised via remote management techniques and/or through a proxy third actor. The role of extraterritorial operations, qua complex mechanisms of governance that implement broader policies with a planning, rollout and post-implementation phase, is central to this re-conceptualization, as is also the understanding that what makes control “effective” is its capacity to determine the material course of events and the resulting position in which those affected find themselves upon execution of the measure(s) concerned.
In all the applications before the ECtHR concerning migration at sea, a preliminary, yet seminal, question is whether the applicants were within the jurisdiction of the respondent State, in terms of Article 1 of the European Convention on Human Rights (ECHR). This question becomes even more apposite in contemporary situations of remote interception or search and rescue operations. In addressing the matter of jurisdiction in such cases, the law of the sea becomes of significant importance. This Article argues that as the International Tribunal of the Law of the Sea (ITLOS) has often taken into account human rights considerations, similarly, the European Court of Human Rights should read into the term “jurisdiction” under Article 1 of ECHR law of the sea considerations. Far from resurrecting Banković and the strict “general international law” notion of jurisdiction under ECHR, this Article only intends to shed some light on when a State would be considered as exercising such “authority and control over persons” in the maritime domain. In so doing, this Article will focus only on the potential application of the ECHR to the most common practices of States vis-à-vis migration on the high seas, namely interception and rescue operations.
On 21 February 2020 the arbitral tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) in the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) rendered its award concerning preliminary objections. This case concerns a broad array of submissions of Ukraine – relating to, inter alia, navigational rights, marine resources, and the marine environment in the Black Sea and the Sea of Azov (here, pp. 9-10).
This post will focus on the arbitral tribunal’s findings concerning the Russia’s two most important objections. First, the objection to jurisdiction concerning claims related to activities in the maritime zones of Crimea since dealing with such claims would require the tribunal to rule on which state has sovereignty over that territory. This objection was upheld (para. 492(a)). Second, Russia objected to jurisdiction over claims concerning the Sea of Azov and Kerch Strait due to the status of these waters as (in the view of Russia) internal waters. This objection was found not to possess an exclusively preliminary character and was, accordingly, reserved for consideration and decision in the proceedings on the merits (para. 492(b)). All remaining objections were dismissed (para. 492(c)).
This article examines the propriety of states with maritime boundary disputes engaging in unilateral acts of extracting mineral resources in disputed water. It argues that states are generally precluded under international law from adopting the unilateral approach, where no temporary agreement has been reached, pending the final resolution of the maritime boundary dispute in accordance with the United Nations Convention on the Law of the Sea 1982 (UNCLOS). Relying on the relevant provisions of UNCLOS and international jurisprudence, this article argues that the best approach for solving maritime boundary disputes still remains negotiation, mutual cooperation and adoption of a 'win-win situation'. © 2018 The Author(s). Published by Oxford University Press. All rights reserved.
This article provides background and introduces into the overarching themes of the contributions to the Special Issue dealing with investment protection in areas beyond territorial jurisdiction at sea and in outer space. It explains that fast-paced commercialization, evolving technological advances, and the inevitable need for regulatory intervention make the oceans and space into an increasingly important topic in international investment law. At the same time, investment lawyers, as well as experts in the law of the sea and space law, have largely ignored the legal issues foreign investments raise in these spaces. The article sketches out a framework for addressing the underlying issues from an investment law perspective, pointing out both familiar conceptual approaches and novel challenges.
At the international law level, the regulation of offshore energy projects does not fall neatly into one global regime. On the contrary, it is subject to a plethora of overlapping legal regimes, including the law of the sea, international environmental law, international economic law, and international energy law. The present article addresses the question how regime interaction affects investment protection in the offshore energy sector. Specifically, it investigates whether cross-fertilization between regimes also has ‘positive’ effects on the protection of investments in offshore energy or whether fragmentation consists of both a perceived and actual challenge. We submit that, even though regime interaction poses challenges to investment protection, the influence of the overlapping legal frameworks is not necessarily a ‘threat’ to investment protection. To the contrary, regime interaction can contribute to widen the objectives of international investment law.
This article examines the applicability of the European Convention for Human Rights (ECHR) when a State loses control over parts of its territory. It argues that the jurisprudence of the European Court for Human Rights, which insists on residual positive obligations based in sovereign title over territory, is problematic and needs to be rethought. The Court’s current approach is not only likely to provoke backlash, since it requires it to decide politically explosive questions of sovereign title, but does so for very little practical benefit for the protection of human rights. The article therefore explores more preferable alternatives.
This article considers whether an international investment agreement (IIA) between two States parties can be interpreted in the light of a ‘third-party IIA’ (defined as a party’s IIA with a third State, a party’s model IIA, or an IIA between other States parties). A significant number of tribunals have been willing to interpret the IIA before them with reference to third-party IIAs, drawing inferences from differences or similarities in their texts. However, the use of third-party IIAs in this manner often reflects an erroneous application of the customary rules of treaty interpretation set out in Articles 31-33 of the Vienna Convention on the Law of Treaties. These conclusions have significant implications for international investment law and State practice. If investment tribunals continue to look to third-party IIAs beyond the parameters of the Vienna Convention, beyond consent of the disputing parties, and beyond the common intention of treaty parties, contemporary developments in treaty drafting may have unintended or even perverse consequences.
Jurisdiction refers to the power of a court or judge to entertain an action. By contrast, admissibility concerns the power of a tribunal to decide a case at a particular point in time in view of possible temporary or permanent defects of the claim. With admissibility, the question is whether the claim is ready for decision at this stage. Whereas jurisdiction typically looks at the dispute as a whole, admissibility is concerned with particular claims. Even though the distinction between jurisdiction and admissibility is a longstanding one in international law, the delimitation of the two is not always straightforward, and in addition the terminology is sometimes inconsistent. In investment arbitration, the boundary between jurisdiction and admissibility is particularly fluid.
After introducing the central concepts – jurisdiction, admissibility and applicable law, Section B examines different modalities of how states and investors consent to the adjudication of their investment disputes. Section C turns to three general jurisdictional questions: Kompetenz-Kompetenz; the existence of a legal dispute and counterclaims. Section D turns to the scope of jurisdiction, and looks the four dimensions of jurisdiction (personal, territorial, temporal and subject matter). Section E distinguishes issues of admissibility from issues jurisdiction, and explains how jurisdiction and admissibility interact.
This article develops the process of jurisdictional proof in investor-state arbitrations. Investor-state arbitration is the only international forum in which capital exporters can pursue claims against host states for violations of the host state’s international legal obligations. Arbitral tribunals are not courts of general jurisdiction; they are limited by the specific arbitral consent given by the state. Jurisdiction therefore is the central battleground of investor-state arbitrations and the appropriate focus of scholarship. But as this article will demonstrate, existing scholarship fundamentally ignores the importance of the process of jurisdictional decision making, i.e., jurisdictional proof, focusing instead on the stated legal rationale on the face of the decisions examined. This failure to focus on jurisdictional proof has significant practical and theoretical consequences. As this article will show, tribunals must compare the force of jurisdictional arguments actually advanced in a dispute to each other. Appropriate jurisdictional analysis is premised upon an even-handed balancing test rather than by the development and application of formal rules. By focusing solely on the stated legal rationale supporting a jurisdictional decision, scholarship has incorrectly attempted to discover formal legal rules driving the decision rather than understanding the manner of balancing the relevant competing interests. This theoretical reconception not only offers important insights for the ongoing scholarly dialogue on jurisdiction, but can be applied to offer practical redress to a central failing in recent investor-state jurisdictional decisions denying jurisdiction over multi-billion dollar claims. These decisions denied jurisdiction because investors supposedly failed to carry a burden by clear and convincing evidence that formal legal rules had been satisfied. Such failure immediately implicates the set aside of these decisions in question either under applicable mechanism provided in a multilateral treaty such as the World Bank’s ICSID Convention or upon motion to the courts at the place of arbitration such as occurred recently in BG Group v. Republic of Argentina, 665 F.3d 1363 (D.C. Cir. 2012).
Investment tribunals often profess fidelity to the rules on treaty interpretation contained in the Vienna Convention on the Law of Treaties (VCLT). At first sight, they mention Article 31 and 32 VCLT with reassuring regularity. But first impressions may lead astray. My hypothesis is that many investment awards demonstrate a cavalier attitude to treaty interpretation. The contrast with the interpretative practice of a highly developed and institutionalized adjudicatory body like the WTO dispute settlement body is particularly striking.Ubiquitous references to the VCLT in investment awards may serve to reassure readers of the award that the tribunal intends to follow well-trodden paths in treaty interpretation. These declarations of fidelity to the foundational principles of treaty interpretation, however, lack practical substance if tribunals soon thereafter pour cold water on their stated intentions. In surveying the interpretative practice of international investment tribunals, I contend that careful application of the principles of treaty interpretation to the facts is often wanting. Superficial treaty interpretation risks distorting the parties’ intentions and unravelling their treaty bargain.
The 2014 Crimea crisis, in addition to issues of general international law, triggered questions relating to international investment law and arbitration. One of these is to what extent a state’s investment treaties bind that state on another state’s territory which it has put under its control by means of annexation. Starting from the assumption that annexation must not be recognized as legal, it seems necessary to adjust the application of this principle of non-recognition in the case that it ultimately benefits an aggressor. Such a situation might arise with respect to investment claims. Having impaired investments in an annexed territory, investors might want to hold the annexing state liable. However, as a jurisdictional hurdle, they need to satisfy a common criterion of investment treaties, which require investments in the territory of the contracting parties. A strict application of this territorial nexus by a tribunal would deprive investors of protection under international investment law. The interest of the international community to sanction illegal acquisition of territory thus clashes with the individual’s interest to have the investment protected under international law. The result might leave the investors in a legal vacuum. Addressing the issue on an abstract level, this article argues that an extension of a state’s investment treaties to annexed territories can well be founded in the law of treaties and is supported by custom and general principles.
Interest in offshore investment is growing: the oil and gas sector has been developing offshore reserves for some time; more recently, the renewable energy sector has also been investing offshore. In that context, this paper considers the legal uncertainties that overlapping sovereign claims in offshore areas create for investments. It then canvasses the commitments that States can accord to address these legal uncertainties, whether unilaterally or through inter-State authorities that jointly regulate areas subject to overlapping claims. This paper is then principally devoted to considering the role of bilateral investment treaties in enforcing such commitments, and otherwise addressing the legal uncertainties generated by overlapping maritime claims. By way of conclusion, this paper considers analogies to other situations where investments are subject to the sovereign rights of more than one State.
The Ghana/Côte d'Ivoire case is the first time that an ITLOS ad hoc chamber has addressed the lawfulness of unilateral hydrocarbon activities in a disputed maritime area. This paper analyzes the Chamber's ruling on Côte d'Ivoire's submission no. 2, which covers several important issues: the jurisdiction of the Chamber to decide on submission no. 2, the alleged violation of sovereign rights, and the alleged violation of Article 83(3) of UNCLOS. The paper argues that the Chamber's jurisdictional basis of forum prorogatum is questionable, and that there are inconsistent approaches between the Judgment and the Order of the provisional measures. Additionally, there are not only inconsistent understandings of the “Ivorian maritime area” within the same submission no. 2 by the Chamber, but also a logical gap in the Chamber's reasoning with regard to submission no. 2(iii). Consequently, the Chamber's inconsistent approaches may jeopardize the persuasiveness of its judgment.
Off-Shore Oil Exploration by a Belligerent Occupant: The Gulf of Suez Dispute - Volume 71 Issue 4 - Allan Gerson
This article discusses potential Ukrainian rights of passage through Kerch Strait against the background of restrictions on passage imposed by Russia since the annexation of Crimea, taking into account the ongoing arbitral proceedings under Annex VII of the UN Convention on the Law of the Sea. The article addresses first the question of the status of Kerch Strait and the Sea of Azov under the international law of the sea. In a second step, the article deals with the issue of potential Ukrainian passage rights through Kerch Strait based on the legal status discussed in the first section as well as relevant bilateral treaties between Ukraine and Russia.
In the Monetary Gold case, the International Court of Justice (ICJ) stated that it cannot exercise its jurisdiction over a question when a third state's 'legal interests would ... form the very subject-matter of the decision'. The purpose of this article is to answer the question whether this principle applies to international courts and tribunals beyond the ICJ. It begins by providing an overview of jurisprudence concerning the Monetary Gold principle. Following, it analyses the rationales suggested in jurisprudence and legal doctrine for the principle. It is argued that these suggested rationales fail to explain the nature of the principle, or constitute shaky ground for a principle of general applicability. Finally, it is argued that, regardless of the origins of the Monetary Gold principle, it can be grounded on customary international law, and on that basis applies to international courts and tribunals generally. © 2019 The Author(s). Published by Oxford University Press. All rights reserved.
The final judgment in the maritime boundary delimitation case between Ghana and Côte d’Ivoire was delivered by an ad hoc special chamber (the Chamber) of the International Tribunal for the Law of the Sea (ITLOS) on 23 September 2017. The decision addressed important legal questions relating not only to maritime boundary delimitation but also to the balancing of various rights and interests at the provisional measures stage and international responsibility for unilateral resource exploitation activities in disputed zones pending delimitation. This article analyzes the decision of the Chamber with respect to its findings on tacit boundary agreements, delimitation methodology, and international responsibility.
The deep seabed beyond national jurisdiction comprises almost three-quarters of the entire surface area of our oceans. It boasts an array of mineral resources, including valuable metals and rare earth elements. Acting under the United Nations Convention on the Law of the Sea, the International Seabed Authority is responsible for regulating this area and granting mining contracts to allow investors to explore for and exploit deep seabed minerals. As yet, deep seabed mining activities have been confined to the exploratory stage. However, recently, there has been a marked growth in deep seabed investment by private corporate actors. As technology advances and commercial appetite increases, extraction of deep seabed minerals may soon commence. In this context, this article seeks to address crucial legal issues facing pioneers of deep seabed mining. What is the extent of investment protection within the existing regime? And are there dispute resolution options to enforce such protection?
Submarine cables and pipelines hold great significance for the global economy, as they constitute key features in energy transit and transmission of telecommunications data. Whereas the two have traditionally been treated by scholars through the lens of the international law of the sea, far less attention has been paid to the potential applicability of international investment law in this field. The present article seeks to shed light on this latter question. First, it reviews the most common treaty and contractual arrangements in place vis-à-vis submarine cables and pipelines. It then turns to international investment law with a view to examining whether investment treaties have a say on the protection of investors in the laying of submarine cables and the construction and operation of submarine pipelines. One of the more vexed questions in this respect is the territorial scope of investment law, in particular as regards the seabed beyond national jurisdiction.
Disputed maritime areas are often sources of valuable natural resources, but they are also often sources of conflict. It is thus important for investors investing in such areas to know the array of investment protection mechanisms available to them. This article examines four such mechanisms (dispute settlement under international investment agreements (IIAs), dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS), dispute settlement under contracts, and political risk insurance) in the context of three scenarios of disputed maritime areas (unregulated areas, joint development areas, and provisionally delimited areas). It concludes that dispute settlement under IIAs and UNCLOS face significant obstacles not only on jurisdiction and admissibility, but also on the merits. As a result, the most practical solution for investors is to rely on dispute settlement under contracts or political risk insurance to protect their investments.
On 23 September 2017, a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) unanimously fixed the course of the maritime boundary between Ghana and Côte d’Ivoire and, thus, ended a long-standing dispute between the two West African neighbours. In addition to maritime delimitation, the legal reasoning and conclusions drawn in the judgment - especially in view of the Special Chamber’s Provisional Measures Order of 25 April 2017 - are significant, in that they shed light on states’ rights and obligations under the United Nations Convention on the Law of the Sea (UNCLOS) in respect of undelimited maritime areas, and also on the potential to respond meaningfully to unilateral resource-related activities in disputed waters through recourse to provisional measures of protection. The present article examines the key aspects of the Special Chamber’s ruling and highlights some issues of practical significance for the future conduct of unilateral petroleum activities in disputed maritime areas.
The law of occupation is codified solely with a view to land territory in Hague Convention IV and Geneva Convention IV. It can be argued, however, that the law of occupation can also be applied to the sea. This requires a simultaneous occupation of the adjacent land territory and sufficient capability of the occupying power to enforce its authority at sea in the form of effective control. The article discusses the legal basis for such an application of the rules of occupation to the sea, as well as requirements for military authority in the maritime domain. The article also points out several peculiarities of the adaption for the sea territory concerning the rights and duties of the occupying power, such as the duty to guarantee freedom of communications. The legal challenges, which remain due to indefinite terms or wide margins of appreciation, do, however, prove the need for a careful adaption.
When investments have been made in an area in which a state asserts its sovereignty, but its boundaries later shift, which investment protection treaties apply? To illustrate this issue, this article focuses on the petroleum licences in the Atlantic Ocean between Ghana and Côte d'Ivoire as an investment, which were recently the subject of international proceedings on delimitation of the maritime boundary. This uncertainty arises regardless of how the International Tribunal for the Law of the Sea would have delimited the maritime boundary. Potential issues arising from investment treaties include: the definition of an investor, the definition of territory and the timing of the investment. Depending on how the Ghana/Côte d'Ivoire boundary disputes were resolved, investment arbitrations could be commenced against either, or both, of the states. The problems highlighted in this article are relevant to many other unsettled territorial and maritime boundaries in the world which may trigger investment disputes. © The Author(s) 2017. Published by Oxford University Press on behalf of the AIPN. All rights reserved.
The law of maritime delimitation has been mostly developed through the case law of the International Court of Justice and other tribunals. In the past decade there have been a number of cases that raise questions about the consistency and predictability of the jurisprudence concerning this sub-field of international law. This book investigates these questions through a systematical review of the case law on the delimitation of the continental shelf and the exclusive economic zone. Comprehensive coverage allows for conclusions to be drawn about the case law's approach to the applicable law and its application to the individual case. Maritime Boundary Delimitation: The Case Law will appeal to scholars of international dispute settlement as well as practitioners and academics interested in the law concerning the delimitation of maritime boundaries.
It is by now uncontroversial that states may owe human rights obligations to individuals outside their territory. The debate about extraterritoriality has, so far, focused on the concept and interpretation of jurisdiction. The role of territory in general, and title in particular, in the conceptual landscape has received less attention in comparison. This article aims to fill this gap by showing that (a) title to territory continues to shape interpretations of jurisdiction, and (b) that this should be avoided. To this end, the article first defines jurisdiction in international human rights law and title to territory. Jurisdiction is best understood as a threshold criterion that triggers human rights obligations of states towards particular individuals. Title to territory, on the other hand, is a set of claims to territory designed to uphold minimal stability. The article then introduces three models – the approximation model, the differentiation model, and the separation model – of the relationship between title to territory and jurisdiction in international human rights law and evaluates them in light of their fit with the relational nature of human rights. The result is that the approximation and differentiation models – that is, those that maintain title's influence on the interpretation of jurisdiction in various degrees – fail the success criterion, while the separation model satisfies it.
According to the Monetary Gold principle, the the International Court of Justice (ICJ) will not exercise its jurisdiction where the legal interests of a third state ‘would form the very subject-matter of the decision’. This principle has been interpreted narrowly by the ICJ and therefore only in two cases (The Monetary Gold case and East Timor case) the ICJ held that it could not exercise its jurisdiction due to this principle. Although the Monetary Gold principle was applied by the ICJ in cases that involved the legal interests of third states, it has been suggested that the principle should be applicable also in international arbitration and also with regard to third non-State Parties. One international arbitral tribunal already applied the Monetary Gold principle due to the interests of a third state and a few other international arbitral tribunals seemed receptive to the idea that the principle could apply to third non-State Parties. Although, at first blush, there are good reasons to argue that the Monetary Gold principle could apply in international arbitration and with regard to non-State Parties, this article explains why it is best to keep the Monetary Gold principle confined to the ICJ.
Maritime delimitation is crucial in determining which coastal States may exercise
control and jurisdiction over certain hydrocarbon deposits. Although international law has
recently become more precise on the matter, boundary disputes are frequently resolved only
after several or even many years. Even while coastal States are in a deadlock over delimitation
issues, the need to explore and exploit the disputed areas’ resources remains imperative for
reasons of energy security, social welfare and economic development. Thus, the question arises
as to the rights and obligations of coastal States with respect to the development of natural
resources in areas subject to overlapping claims.
The purpose of the handbook is to provide practitioners and legal scholars with a comprehensive overview and a systematic assessment of the relevant cases and issues in the field of international investment law. The handbook thus aims at giving both a first overview as well as a detailed insight into all aspects of investment law. The handbook provides a thorough legal analysis of arbitral jurisprudence and identifies emerging trends and developments. This book will be of crucial importance to investors, legal practitioners, and scholars. Further, it will answer the call for a comprehensive academic study of crucial developments, such as the increasing role of European Union Law or the rising impact of multilateral approaches on the system of international investment law.
Unilateral exploration and exploitation of natural resources in disputed marine areas create a sensitive issue in the context of maritime delimitations. In the Ghana/Cote d'Ivoire dispute concerning maritime delimitation, Cote d'Ivoire requested that the Special Chamber of International Tribunal for the Law of the Sea (ITLOS) prescribe provisional measures to suspend all ongoing oil exploration and exploitation operations conducted by Ghana in the disputed area and to refrain from granting any new permit for oil exploration and exploitation there. In the Order of 2 April 2015, the Special Chamber declined the Cote d'Ivoire's request to prescribe the suspension of operations but did order that Ghana ensure that no new drilling either by Ghana or under its control take place in the disputed area. The Ghana/Cote d'Ivoire Order sheds light on the legal consequence of unilateral exploration and exploitation of natural resources in disputed marine areas.
Since shortly after the 1967 Middle East war, Israel has sought to reduce its dependence on imported oil by exploiting the resources of captured Egyptian territory. Until recently attention was centered on the Sinai’s Abu Rhodeis fields, which in 1974 were reported to be meeting 55 percent of Israel’s needs. In 1975, however, these fields were returned to Egypt as part of the second Egypt-Israel Disengagement Agreement. Previously unexploited areas of the eastern Gulf of Suez then became the subject of Israeli efforts, and by the fall of 1976 exploratory drilling was in progress off the Sinai coast. On November 25, 1977, Israel announced that this drilling had resulted in a commercial strike, and on March 29, 1978, it was reported that commercial production had begun. The question whether Israel may rightfully exploit the oil resources of the Gulf thus came sharply into focus.
Offshore oil and gas projects face numerous technical and legal risks not typically encountered in onshore exploration and production activities. Among these risks is the possibility that the relevant licence/concession area in which an oil and gas company is entitled to explore and/or produce falls within or near an area subject to an international maritime border dispute. This article therefore surveys various different sources of law applicable to offshore oil and gas projects amid maritime border disputes, including (A) the provisions of the United Nations Convention on the Law of the Sea, (B) the law applicable to the exploration and exploitation of offshore oil and gas resources under joint development agreements negotiated amid maritime territorial disputes, and
This article considers the practical causes of maritime boundary disputes and legal principles for resolving them. It also discusses the ‘rule of capture’ in the context of straddling hydrocarbon pools and its development in municipal law and international law. Finally, the article considers the treatment of the rule in the recent Guyana/Suriname arbitral award.
This book starts by exploring the classical sources of international law as possible sources for the Fair and Equitable Treatment (FET) standard. On the basis of an empirical study of 365 Bilateral Investment Treaties and of the existing regional and multilateral investment agreements, it finds that there is no uniformity among the drafting formulations of FET clauses, which means that the wording of each FET clause has to be carefully analysed. The book also argues that the FET standard is not part of the International Minimum Standard, but that it is an independent standard which became customary. Then the book looks at the nature of FET, that of being a standard, and retains that there are three direct consequences for its meaning: an absence of fixed content, flexibility, and an evolutionary character. Since it is not possible to give a fixed content to FET, the book further develops on the role of the arbitrator in establishing the threshold at which the FET will be applied in each one of the cases in front of him, and in the various situations in which the FET standard has already been applied on the basis of a thorough analysis of the existing case law. Finally, the book argues that, while a breach of the FET has to be established exclusively by looking at the behaviour of the State, the amount of compensation has to be calculated by taking into account also the behaviour of the investor and any special situations in which the State may find itself.
Attempts at developing a theory of international investment law are complicated by the fact that this field of international law is based on numerous, largely bilateral treaties and is implemented by arbitral panels established on a case-by-case basis. This suggests a fragmented and chaotic state of the law, with different levels of protection depending on the sources and targets of foreign investment flows. This book, however, forwards the thesis that international investment law develops, despite its bilateral form, into a multilateral system of law that backs up the functioning of a global market economy based on converging principles of investment protection. In discussing the function of most-favored-nation clauses, the possibilities of treaty-shopping and the impact of investor-State arbitration with its intensive reliance on precedent and other genuinely multilateral approaches to treaty interpretation, it offers a conceptual framework for understanding the nature and functioning of international investment law as a genuinely multilateral system.
The Implicated Issue Problem
- Cf Tzeng
Cf Tzeng, 'The Implicated Issue Problem' (n 75) 491.
Crimea Cases against Russia to Proceed' (Global Arbitration Review
- Alison Ross
Alison Ross, 'Crimea Cases against Russia to Proceed' (Global Arbitration Review, 9 March 2017)
<https://globalarbitrationreview.com/ article/ 1137587/ crimea-cases-against-russia-to-proceed> accessed 30 April 2020;
) <www.iareporter.com/ articles/ investigation-furtherrussia-investment-treaty-decisions-uncovered-offering-broader-window-intoarbitrators-approaches-to-crimea-controversy/ > accessed
- J Hepburn
- Kabra
Hepburn J and R Kabra, 'Investigation: Further Russia Investment Treaty Decisions Uncovered, Offering Broader Window into Arbitrators' Approaches to Crimea Controversy'
(IAReporter, 17 November 2017) <www.iareporter.com/ articles/ investigation-furtherrussia-investment-treaty-decisions-uncovered-offering-broader-window-intoarbitrators-approaches-to-crimea-controversy/ > accessed 30 April 2020.
Russian Federation Is Hit with $1.3 Billion Dollar UNCITRAL Bilateral Investment Treaty Award' (IAReporter, 26 November 2018) <www.iareporter.com/ articles/ russia-hitwith-1-3-billion-dollar-in-a-new-uncitral-bilateral-investment-treaty-award/ > accessed 30
- Eg See
See, eg, 'Russian Federation Is Hit with $1.3 Billion Dollar UNCITRAL Bilateral Investment
Treaty Award' (IAReporter, 26 November 2018) <www.iareporter.com/ articles/ russia-hitwith-1-3-billion-dollar-in-a-new-uncitral-bilateral-investment-treaty-award/ > accessed 30
April 2020.