Walter Hallstein-Institut für Europäisches Verfassungsrecht. Humboldt-Universität zu Berlin. WHI - Paper 02/11. Steffen Hindelang * - PDF

Description
Walter Hallstein-Institut für Europäisches Verfassungsrecht Humboldt-Universität zu Berlin WHI - Paper 02/11 Restitution and Compensation RECONSTRUCTING THE RELATIONSHIP IN INVESTMENT TREATY LAW Steffen

Please download to get full document.

View again

of 9
All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
Information
Category:

Lifestyle

Publish on:

Views: 21 | Pages: 9

Extension: PDF | Download: 0

Share
Transcript
Walter Hallstein-Institut für Europäisches Verfassungsrecht Humboldt-Universität zu Berlin WHI - Paper 02/11 Restitution and Compensation RECONSTRUCTING THE RELATIONSHIP IN INVESTMENT TREATY LAW Steffen Hindelang * Forthcoming in: Hofmann, Rainer and Tams, Christian (eds.), International Investment Law and General International Law. From Clinical Isolation to Systemic Integration?, Nomos, Baden Baden, 2011; suggested citation of the WHI Paper: Hindelang, Restitution and Compensation - Reconstructing the Relationship in Investment Treaty Law, WHI-Paper 02/11, available at * Dr. iur., LL.M.; Senior Research Associate and Lecturer at Humboldt-University Berlin, Faculty of Law, Walter Hallstein- Institute of European Constitutional Law, Chair of Public, International and European Law (Prof. Dr. Dr. h.c. Ingolf Pernice); Contact: The author wishes to express his gratitude to Assistant Professor Jörn Griebel of the University of Cologne, Dr. Max Gutbrod of Baker & McKenzie Moscow, Ref jur. Katharina Berner and Ref. jur. Christian Djeffal, both of Humboldt University Berlin, for fruitful comments on earlier drafts. The author also thanks Extraordinary Professor Ursula Kriebaum of the University of Vienna and Dott.ssa Virginie Colaiuta of Pinsent Masons for their efforts in preparing comments on the author s conference presentation on which this paper is based. The author grounds his argument in favour of prioritising restitution in investment treaty law not only on the ILC Articles and the PCIJ ruling in the Factory at Charzów case, as was suggested by Kriebaum s comment, but also on the nature and purposes pursued with the conclusion of investment treaties, arbitral awards as well as State praxis. Table of Contents RESTITUTION AND COMPENSATION 1 A. INTRODUCTION...2 B. THE CONTENT OF THE INTERNATIONAL RESPONSIBILITY OF A STATE IN GENERAL PUBLIC INTERNATIONAL LAW...2 I. Restitution The Breadth of the Concept of Restitution Material and Legal Restitution...4 II. Compensation...4 III. The Relationship between Restitution and Compensation Election Possibility and Proportionality...6 IV. Applicability of the ILC Rules on the Form of Reparation to non-state Actors?...8 V. Leges Speciales to the ILC Regime...9 C. INVESTMENT TREATY LAW...9 I. The Relationship between Restitution and Compensation through the Eyes of Arbitral Tribunals Constituted on the Basis of an Investment Treaty...9 II. A Normative Construction of the Relationship between Restitution and Compensation The Applicability of the Articles on State Responsibility or: To whom Accrue the Substantive Rights Contained in Investment Treaties?...13 a. Derivative and Direct Rights Theory...14 b. Critical Appraisal...15 (1) Object and Purpose: Establishing a Healthy Investment Climate, De-politicisation, and a Legal System Based on the Rule of Law...15 (2) The Owner of the Substantive Rights...17 (a) The Applicable Law...18 (b) Doctrines of Continuous Nationality and Effective/Genuine Link (c) The Exhaustion of Local Remedies Rule...19 c. Summary so far Investment Treaty Law as a Subsystem within the Meaning of Article 55 ILC? Appreciation...21 D. SUMMARY A. Introduction Stay or leave? Restitution or compensation? Perhaps in this admittedly simplified way one could sketch strikingly the choice to be made when deciding between the two forms of reparation in investment arbitration. While the restitution of, e.g., unlawfully taken property means continued presence and perhaps retention of business activities in a host State, compensation often opens up the possibility to seek new investment opportunities beyond the borders of the host State. This paper intends to shed light on the rules governing the abovementioned choice in investment treaty law. Starting point of this elaboration will be the general rules governing the consequences of the commitment of an international wrong. These rules are contained in the International Law Commission s ( ILC ) Articles on Responsibility of States for Internationally Wrongful Acts ( ASR or ILC Articles ) and basically mirror customary international law (below 0B.). Thereafter it will turn to the rules applicable to investment treaties, hereby answering the question of whether and to what extent the general rules on the relationship between restitution and compensation are also valid within this specific area of investment treaty law (below C.) A review of recent arbitral awards (below C. I.) will form the basis for a normative construction of the relationship in investment treaty law (below C. II.). This construction will proceed from the assumption that the purposes State parties pursue with the conclusion of investment treaties essentially remain in an inter-state sphere (below C. II. 1. b. (1)) and, hence, substantive treatment rights in respect of foreign investment accrue to the host State of the investor (below C. II. 1. b. (2)). Based on such understanding of the purposes pursued with the conclusion of investment treaties, this paper comes to an end with suggesting to strictly prioritise restitution among the forms of reparation available in the area of investment treaty law (below C. II. 3.). B. The Content of the International Responsibility of a State in General Public International Law Once an internationally wrongful act has been committed, questions as to the restoration and future of the legal relationship thereby affected arise. The obligation breached the so-called primary obligation is not affected by the legal consequences of an internationally wrongful act. The responsible or author State is, consequently, bound to the continued duty to perform the (primary) obligation breached. This general rule is stated in Article 29 ASR, which is commonly perceived as reflecting the current situation under customary international law. 1 Furthermore, there are two general additional, secondary obligations of the author State consequent upon the commission of an internationally wrongful act. That is, first, the obligation of cessation 2 and non-repetition 3 of the wrongful act, also found in Article 30 ASR. This rule aims at protecting and restoring the ongoing relationships or situations of continuing value and shows that State responsibility is not just backward-looking. 4 Second, there is the obligation to make full reparation for the injury caused by the internationally wrongful act, whereby injury includes any damage, whether material or moral, caused by the internationally wrongful act. The latter obligation, the obligation to make full reparation, was included by the ILC in Article 31 ASR. This provision was based upon the judgement of the Permanent Court of International Justice ( PCIJ ) in the Factory at Chorzow case 5 where the Court stated: It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. 6 1 Cf., for the situation under customary international law pre-asr, e. g. epelka, Les conséquences juridiques du délit en droit international contemporain, 1965, p Cf. for the distinction of cessation and reparation: Arangio-Ruiz, Preliminary Report on State Responsibility, Yearbook of the International Law Commission 1988, Vol. II (Part One), Document A/CN.4/416 & Corr. 1 & 2 and Add. 1 & Corr. 1, p. 6, para ; Cf. for the distinction between cessation and restitution in kind: idem, para Cf., e.g., LaGrand (Germany v. United States of America), Judgement, ICJ Rep. 2001, p. 466, para Crawford/Olleson, in: Evans (ed.), International Law, 2. ed. 2006, p Judgement of , PCIJ Series A, No. 17; for a display of judgements and awards granting non-pecuniary remedies see also Schreuer, Non-Pecuniary Remedies in ICSID Arbitration, 20 Arbitration International 2004, p. 325 et seqq. 6 Judgement of , PCIJ Series A, No. 17, p The Court specified in more detail the content of the obligation to make reparation in an adequate form as follows: reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. 7 While the Court in the specific case mentioned only two forms of reparation i.e. restitution (in kind) (below I.) and compensation (below II.) in certain cases, satisfaction 8 the third form of reparation may be called for. All those three forms of reparation either granted separately or in combination are also reflected in Article 34 ASR. The provision of each of the forms of reparation described in Article 34 ASR is subject to further specification in Articles 35 to 39 ASR. In principle, restitution is the very first remedy to be sought among the three forms of reparation as it most closely conforms to the general rule of the law of responsibility according to which the author State is obliged to wipe out all consequences with the view to re-establishing the original situation. 9 This clear legal priority is also reflected in the ILC Articles which allow for compensation in Article 36 (1) ASR only insofar as damages cannot be made good by restitution (below III.). Considering the relationship between the forms of reparation Articles 33 and 55 ASR also need to be addressed. The former regulates, inter alia, the application of ASR rules on the form of reparation to non-state actors (below IV.), the latter refers to leges speciales which could replace the ASR rules (below V.) I. Restitution 1. The Breadth of the Concept of Restitution Turning to the concept of restitution in more detail, one is faced with the problem of definition. Broadly speaking, two different readings of reparation were historically offered in literature. Probably the most common view referred to restitution in kind as re-establishing the status quo ante, namely the situation that existed prior to the occurrence of the wrongful act, in order to bring the parties relationship back to its original state. 10 The other reading was to understand restitution in kind as the establishment or reestablishment of the situation that would exist, or would have existed, if the wrongful act had not been committed. 11 Arangio-Ruiz, Special Rapporteur of the International Law Commission on State Responsibility, explained the differences between the two readings in his Preliminary Report as follows: The two concepts cover different areas. In the first place, it is obvious that the first definition refers, for the purposes of restitutio, to a factual and/or juridical situation which has really existed in the past and has been altered additionally or principally as a consequence of the violation. The second definition refers instead to a theoretical legal/factual state of affairs which at no time has been a part of reality but could presumably be a part of reality if the wrongful act had not interfered in the course of events. [ The first] definition views restitution in kind stricto sensu and per se. It leaves outside the concept of compensation which presumably will be due to the injured party for the loss suffered during the period elapsed during the completion of the wrongful act and thereafter until the time when the remedial action is taken. [The second] definition seems instead [ ] to absorb into that concept not just the re-establishment of the status quo ante [ ] but also the integrative compensation. In other words, [the first definition] separates the purely restitutive from the compensatory function of reparation, while [the second one] presents, so to 7 Judgement of , PCIJ Series A, No. 17, p Wyler/Papaux, in: Parlett/Crawford/Pellet/Olleson (eds.), The Law of International Responsibility, 2010, p. 623 et seqq. 9 Cf. Arangio-Ruiz, Preliminary Report on State Responsibility, Yearbook of the International Law Commission 1988, Vol. II (Part One), Document A/CN.4/416 & Corr. 1 & 2 and Add. 1 & Corr. 1, p. 6, para The relationship between restitution and compensation is discussed in detail further below, cf. B. III. 10 E. g. de Visscher, La responsibilité des Etats, Bibliotheca Visseriana, 1924, vol. II, p. 118 ; Verdross, Völkerrecht, 5. ed. 1964, p E. g. Anzilotti, Cours de droit international, French translation of 3. Italian ed. 1929, p. 526; Strupp, in: Stier-Somlo (ed.), Handbuch des Völkerrechts, vol. III, 1. part, 1920, p speak, an integrated concept of restitution in kind within which the restitutive and compensatory elements are fused. 12 Article 35 ASR adopts the narrower definition which has the advantage of not having to deal with a hypothetic inquiry into what the situation would have been if the wrongful act had not been committed. Applying the narrow definition however does not mean that the injured State is placed in a worse situation. Restitution may of course be completed by compensation Material and Legal Restitution For systematic reasons, a distinction can be drawn according to the kind of injury for which reparation is due. Material restitution means that the injury takes the form of material damage proper. Good examples of material restitution would therefore be the restitution of confiscated property, the release of a detained individual, or the restitution of an arrested ship. 14 Legal restitution refers to cases where implementation of restitution involves the modification of a legal situation either within the legal system of the author State or on the international plane. Legal restitution can, thus, require inter alia annulling certain national laws or court decisions or even annulling an international treaty. 15 With regard to legal restitution in the domestic law of the author State an additional point should be addressed in respect of this doctrinal distinction. The distinction between material and legal restitution in the domestic law of the author State should be viewed not so much as different remedies but as distinct aspects of one and the same remedy. 16 This follows from the fact that one can hardly conceive a State effecting restitution which would involve purely material operations. Under the rule of law, it is hardly thinkable that the Government responsible for an internationally wrongful act could accomplish any restitution without something legal happening within its system. [Hence restitution will in any way] be essentially legal [ ], accompanying or preceding material restitutio. 17 II. Compensation Compensation constitutes the second secondary obligation consequent of a breach of a primary obligation in international law, either completing or replacing restitution. Article 36 ASR restates this as follows: 1. The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. 2. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established. The damage compensated for is the financial harm caused by the breach, established by measuring the difference between the actual financial position resulting from the breach and that which otherwise would have obtained. This assessment of the compensable damage does not only involve a challenging fact-finding mission but a complex fact-specific delineation exercise in which the freedoms, rights, and prerogatives of actors in both public and private spheres are defined not only by reference to their competing interests, but in light of 12 Arangio-Ruiz, Preliminary Report on State Responsibility, Yearbook of the International Law Commission 1988, Vol. II (Part One), Document A/CN.4/416 & Corr. 1 & 2 and Add. 1 & Corr. 1, p. 6, para See further below B. II. 14 Cf., e.g. Temple of Preah Vihear case, ICJ Rep. 1962, p. 6, p For more references see Arangio-Ruiz, Preliminary Report on State Responsibility, Yearbook of the International Law Commission 1988, Vol. II (Part One), Document A/CN.4/416 & Corr. 1 & 2 and Add. 1 & Corr. 1, p. 6, para Cf. e.g. Bryan-Chamorro Treaty case, Anales de la Corte de Justicia Centroamericana (San José, Costa Rica), vol. VI, Nos , p. 7 = 11 AJIL (1917), p. 674 et seqq; Martini case, United Nations, Reports of International Arbitral Awards, vol. II. p. 975 et seqq; for more references see Arangio-Ruiz, Preliminary Report on State Responsibility, Yearbook of the International Law Commission 1988, Vol. II (Part One), Document A/CN.4/416 & Corr. 1 & 2 and Add. 1 & Corr. 1, p. 6, para Arangio-Ruiz, Preliminary Report on State Responsibility, Yearbook of the International Law Commission 1988, Vol. II (Part One), Document A/CN.4/416 & Corr. 1 & 2 and Add. 1 & Corr. 1, p. 6, para Arangio-Ruiz, Preliminary Report on State Responsibility, Yearbook of the International Law Commission 1988, Vol. II (Part One), Document A/CN.4/416 & Corr. 1 & 2 and Add. 1 & Corr. 1, p. 6, para additional procedural and governance obligations calculated to raise the standards of conduct of all parties and to secure peaceful enjoyment of property 18 Hence, rules and methods may vary depending on whether compensation is sought for personal injury, incidental loss, claims to money, property, business and income-producing assets, or lost profits. 19 In any case, however, the way in which compensation is calculated has a significant impact on public policy and carries the immanent hazard that either ordinary commercial risk or legitimate private rights or market positions respectively are illicitly socialised or public goods or interests are secretly privatised. 20 III. The Relationship between Restitution and Compensation The relationship between the two forms of reparation is at first sight resolved in a straightforward fashion. What can be described by and large as a codification of customary international law 21, in the absence of an election, 22 pursuant to Article 36 (1) ASR restitution is the primary form of restitution, followed to the extent restitution is impossible or excessively onerous by compensation (and then, to the extent restitution and compensation are impossible, by satisfaction). 23 What can be drawn from the aforesaid is that the three forms are not mutually exclusive within the context of an award. Apparently, they can be granted either separately or in combination, which can be derived from Article 34 ASR. Within this hierarchy, restitution is placed first because it most closely conforms to the general rule of the law of responsibility according to which the author State is obliged to wipe out 24 all consequences with the view to re-establishing the original situation. 25 It is, furthermore, claimed that prioritising restitution serves the purpose of justifying a specific method of calculating compensation, i.e. compensation must cover both, damnum emergens and lucrum cessans. 26 Such reasoning is, however, not convincing. It is neither the priority given to restitution nor the concept of restitution itself which would justify such standard of calculation as restitution as embodied in Article 35 ASR contrary to the view taken in the Factory of Charzów case does not contain hypothetical elements of lucrum cessans but adopts a narrower definition as stated above. What does justify adopting a standard of compensation including lucrum cessans is the general rule of responsibility to wipe out all consequences of a wrongful act which indeed contains also hypothetical elements. Turning to practice, while courts 27 and albeit to a lesser extent tribunals 28 generally affirm the existence of the rule of priority, restitution is granted only very rarely. Within the area of law on the protec- 18 Barker, in: Parlett/Crawford/Pe
Related Search
Similar documents
View more...
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks