Baraky, Efream (2015) Emerging Practices of International Investment Arbitration Tribunals in Adjudicating Illegal Investments: Analyzing Selected Cases. Masters thesis, Addis Ababa University.
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Abstract
There is support in the investment treaty cases for the proposition that the lawfulness of the investment is a condition precedent for the conferral of adjudicative power upon tribunals or for the availability of substantive protections at the merit phase. This plea of legality is justified by reference to arguments either: (i) an express provision of the treaty requires that lawfulness of the investment; or (ii) the notion that investment treaties should give effect to general principles of laws such as good faith or the maxim that a claimant should not be able to profit from its own wrongs. However, in effect, the decision on when to address the plea of illegal investment has proved to have shown potentially significant consequences for the respondent, the claimant and for the general outcomes of investment arbitrations. In this vein, many legal scholars who have studied the trend of this discourse seemed to have supported the idea that when an express provision of the applicable treaty requires the lawfulness of the investment, the tribunal must consider the plea of illegal investment as jurisdictional question. Conversely, where there is no an express provision of the applicable treaty requires the lawfulness of the investment, tribunals must consider the matter as regards the merit of the dispute either to affect the substantive protection or the amount of compensation due. This thesis, however, defended that such conclusions are not amenable to be a consistent broadspectrum and unified interpretation as can be evidenced by examination of more inclusive authoritative international investment cases, which instead proposed that adjudication to be made by giving significant emphasis to the specificity of a given qualification in the IIA, and/or of the circumstances of the actual case.
| Item Type: | Thesis (Masters) |
|---|---|
| Subjects: | K Law > K Law (General) |
| Divisions: | Africana |
| Depositing User: | Emmanuel Ndorimana |
| Date Deposited: | 11 Jun 2018 09:31 |
| Last Modified: | 11 Jun 2018 09:31 |
| URI: | http://thesisbank.jhia.ac.ke/id/eprint/4365 |
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