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Contact with chambers should be made through the Practice Management Team. They are happy to discuss client requirements and provide further information on such matters as the expertise and experience of individual members, fees, working practices and languages spoken. We have members able to work in French, German, Italian, Spanish, Dutch, Swedish, Greek and Chinese (Mandarin).

Outside working hours, a member of our team is always available to be contacted on matters of an urgent nature. Contact should be made using the Chambers main number or email.

To contact our Singapore office, please contact our BD Director, Asia, Rachel Foxton. Out of office hours calls will automatically be diverted to our clerking team in London.

London

20 Essex Street
London
WC2R 3AL

enquiries@twentyessex.com
t: +44 20 7842 1200
DX 0009 Lond/Chan Lane

Singapore

28 Maxwell Road
#02-03
Maxwell Chambers Suites
Singapore 069120

singapore@twentyessex.com
t: +65 62257230

Contact

Contact with chambers should be made through the Practice Management Team. They are happy to discuss client requirements and provide further information on such matters as the expertise and experience of individual members, fees, working practices and languages spoken. We have members able to work in French, German, Italian, Spanish, Dutch, Swedish, Greek and Chinese (Mandarin).

Outside working hours, a member of our team is always available to be contacted on matters of an urgent nature. Contact should be made using the Chambers main number or email.

To contact our Singapore office, please contact our BD Director, Asia, Rachel Foxton. Out of office hours calls will automatically be diverted to our clerking team in London.

London

20 Essex Street
London
WC2R 3AL

enquiries@twentyessex.com
t: +44 20 7842 1200
DX 0009 Lond/Chan Lane

Singapore

28 Maxwell Road
#02-03
Maxwell Chambers Suites
Singapore 069120

singapore@twentyessex.com
t: +65 62257230

15/06/2016

Claims under customary international law in ICSID arbitration

This is an archived article, and some links may not work. Contact us if you have any questions.

In three recent ICSID cases, claimants have sought to rely on customary international law as a separate head of claim to claims of breach of obligations arising under either an investment treaty or an investment contract. This article examines the extent to which claims under customary international law might fall within the scope of jurisdiction of an ICSID tribunal, by reference to the decided cases. It suggests that the starting point of the analysis must be the scope of consent given in the arbitration clause. In a claim brought pursuant to a contract, it might also be relevant to consider the applicable law of the contract, since that law might incorporate customary international law. While this analysis (and the decided cases) suggest that self-standing claims based on custom in ICSID arbitration are not beyond the realm of possibility, the author suggests that there are likely to be challenges for investors in relying on customary international law as a basis of a claim. Where consent to arbitration is found in an investment treaty, it might be argued that the treaty standard is lex specialis and, in any event, might not differ in any material way from the customary standard. Where consent to arbitration is found in an investment contract with an applicable law that incorporates customary law, there may be questions as to whether an investor is entitled to directly invoke custom. These questions are likely to be explored in future cases, and their answers are likely to depend on the particular circumstances in which they arise.

 

http://icsidreview.oxfordjournals.org/content/31/2/434.abstract?keytype=ref&ijkey=bwJii7lIoJQNTuw 


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