Acceso usuarios
Yuval Shany
Three recent ICSID cases - Vivendi, SGS v. Pakistan, and SGS v. Philippines - have exposed some of the more difficult theoretical and practical uncertainties underlying modern international investment law. Specifically, the trilogy of cases reveals inconsistent approaches by international arbitrators to delineating the relationship between the contract claims and treaty claims. The note maps the legal questions raised by the surveyed decisions and discusses the various integrationist and disintegrationist methodologies arbitrators employ in order to regulate the interplay between contract and treaty claims. In addition, it tries to link the debate on the relations between contract claims and treaty claims to other debates on the relations between overlapping legal regimes taking place in the world of international investment law and in other areas of international law. Finally, it offers some pragmatic tools - the principles of judicial comity and abus de droit - capable of alleviating some of the tensions between contract and treaty claims.
