When in the context of the constitutional crisis in Venezuela after a fraudulent election 'won' by the President of the Assembly, states had to take a position on who the government of Venezuela was. This article examines states' reactions on the diplomatic front on this issue of government recognition. The main focus is on how investor-state arbitration tribunals have addressed the issue of government identification and recognition and the controversial question of representation in proceedings involving Venezuela. The issue of conflicting pretensions by competing authorities claiming to be the representative of Venezuela in arbitration proceedings has been a controversial question in the field of investment arbitration in recent years. I will show that the case law that emerges from these awards provides a solid and coherent set of rules and principles which will be very helpful to future investment tribunals faced with similar competing claims to governmental status. What these tribunals have said and what they did in the specific context and limited scope of the crisis in Venezuela has much broader implications both in terms of theory and practice.

This article examines the Deripaska v Montenegro case. I will discuss the award’s two most significant findings on fundamental issues of State succession. First, the Tribunal affirmed that there exists no rule of automatic succession whereby a new State is ipso facto bound by bilateral treaties, including BITs, to which the predecessor State was a party before independence. Second, the Tribunal explained that succession to a BIT is possible based on an express agreement by the parties and, when some conditions are met, by tacit consent from them. The reasoning of the Tribunal on these two points will have long lasting consequences on future arbitration cases.

This article examines the recent work of the ILC on ‘Succession of States in Respect of State Responsibility’. While the ILC decided in 2024 to stop working on the topic, the five reports submitted by Special Rapporteur Šturma and the Guidelines provisionally adopted will have a long-lasting impact on state succession scholarship and may influence states in their practice. This article provides a critical analysis of the Guidelines by comparing its content with the Resolution adopted by the Institute of International Law in 2015 on the same issue. It will show that while the solutions which were initially put forward by Special Rapporteur Šturma in his reports followed many of the same features as the Institute’s Resolution, the final version of the Guidelines are significantly different in both content and tone. A major shift occurred when each provision was examined by the Drafting Committee. This is because some ILC members, and many states, rejected any presumption of succession to responsibility. Instead, they favoured the opposite general rule of nonsuccession. As a result, none of the provisions provisionally adopted by the ILC impose any obligations whatsoever on states. They only go so far as to encourage them to reach agreements on matters of succession to responsibility. Ultimately, the Guidelines leave wide open the possibility that a wrong remains unpunished in the context of a succession of states. As such, the Guidelines do little to protect the interests of injured states.

In this contribution, I examine how investment tribunals have addressed the issues of recognition and identifying governments. While these questions may arise in different situations (for instance, in the context of the civil war in Yemen1), I will focus on claims arising from events occurring during the civil war in Libya because they have been examined frequently by tribunals.2 I will examine the Cengiz case and briefly mention other cases dealing with related procedural questions. I will explain that the Cengiz Tribunal has failed to properly apply some of the most fundamental principles of international law regulating government recognition/identification.

The article examines how awards, outside NAFTA and CAFTA, have assessed fair and equitable treatment (FET) clauses where the standard of protection is expressly linked to the Minimum Standard of Treatment (MST). It shows that in the last ten years, tribunals have generally adopted a restrictive approach which is in line with NAFTA case law. They have defined the content of the standard similarly to NAFTA tribunals and have also referred to a high threshold of severity or seriousness to find a breach. The article argues that while the FET clause in the CUSMA (replacing NAFTA) will be of limited practical relevance in the North American context, what matters is that the legacy of NAFTA case law on the FET is likely going to be felt for decades to come.

At the OECD Track 2 (“Future of Investment Treaties”) meeting on 7 November 2023, I gave a presentation titled “The cost of inaction: arbitral practice in respect of earlier generation FET clauses and current approaches to FET clauses”. The presentation summarised my findings regarding a comprehensive empirical research project on how investment tribunals have assessed the status, scope and content of the “fair and equitable treatment standard” (FET) clause found in the vast majority of bilateral and multilateral investment treaties. I have examined all publicly available awards rendered by arbitral tribunals dealing with FET clauses. To the best of my knowledge, this is the first comprehensive survey on the issue since the 2012 UNCTAD Report.1 I have found 279 relevant awards.2 This document summarises my findings. The full report will be published by Kluwer in 2024.I have focused my attention on the following three questions: 1. Based on the language of the FET clause contained in the treaty, what is the tribunal’s reasoning regarding the relationship between the standard of treatment it provides to foreign investors and the standard under “international law”, the “minimum standard of treatment” (MST) under custom, or, more generally, customary international law? In other words, do they constitute an equivalent treatment or does one offer a better level of protection than the other(s)?2. In relation to how the tribunal analysed the first question, what did it say about the content of the FET standard? In other words, what are the different elements of treatment that the host State must accord to foreign investors? More specifically, does the tribunal consider that the standard includes the protection of the investor’s legitimate expectations, that it imposes an obligation of transparency and to provide a stable legal and business environment?3. Does the answer to these two questions have any consequences or impact on a tribunal’s finding in terms of liability and awarding compensation? This Reports examine the reasoning of tribunals for the following three different types of FET clauses.

Abstract This entry discusses Article 38 of the Statute of the International Court of Justice (ICJ Statute). It explains that sources in Article 38 are generally regarded as applicable in ICJ cases and other international courts and tribunals. Investor–State arbitration tribunals frequently refer to the provision as an authoritative statement of the sources of international law. Moreover, no arbitral tribunal has ever rejected the relevance of Article 38(1) of the ICJ Statute in the field of international investment law. The entry explains how judicial bodies considered that two basic requirements of State practice and opinio juris are necessary to conclude that a customary rule exists.

This article provides the first empirical survey since the 2012 UNCTAD Report of how tribunals have addressed a specific type of Fair and Equitable Treatment (FET) clause: stand-alone clauses containing no reference to international law or any other standard. The vast majority of awards did not take a position on the issue of whether that standard offers the same or different level of protection compared to the Minimum Standard of Treatment (MST) under custom. Yet, those that did have overwhelmingly concluded that the clause must be interpreted to have an autonomous character, not related to the MST. These tribunals have also given broad interpretation of the scope and content of the clause which, in turn, had an impact on how they have addressed matters of liability and compensation. The success rate of FET claims is higher for tribunals which have expressly stated that a stand-alone FET clause has an ‘autonomous’ character compared to others which did not take a position on this question (two-thirds versus 50%). Notably, the overall success rate of FET claims under a stand-alone clause (50%) is much higher compared to that of awards examining FET clauses where the standard is expressly linked to the MST.

This Chapter deals with the question as to who from the continuing State or the successor State can submit a claim for reparation for internationally wrongful acts committed by a third State (before the date of succession) directly affecting the predecessor State. It explores the theoretical dimension of the question whether the transfer of the right to reparation from the predecessor State(s) to the successor State(s) is accepted in international law. The chapter examines in detail the legal arguments advanced by the doctrine of non-succession, which deny any such transfer of rights to the successor State. It also examines some criticisms of these arguments. The chapter describes the relevant State practice and international case law where questions of State succession to the right to reparation arose.Keywords: continuing State; international case law; international law; internationally wrongful acts; predecessor State; State practice; successor State

State practice shows that in the context of unification and integration of States, the principle of succession to international responsibility finds application. The examination of State practice and case law in the context of Newly Independent States shows a great variety of solutions supporting both the principles of succession and non-succession to international responsibility. Several specific circumstances have been identified under which State practice and case law (as well as doctrine) support the application of the principle of succession, whereby the successor State takes over the obligations arising from internationally wrongful acts committed by the predecessor State before the date of succession. State practice and case law in the context of State succession to the right to reparation is much more straightforward than the issue of succession to the obligation to repair.Keywords: case law; international responsibility; internationally wrongful act; Newly Independent States; predecessor State; State practice; successor State

This chapter examines the transformation of the concept of the 'Minimum Standard of Treatment' (MST) throughout the 20th century: its emergence, its subsequent decline and finally its recent 'resurrection'. States now perceive the MST as ineffective in providing basic legal protection to foreign investors doing business abroad. It is in this historical context that these States began frenetically signing bilateral treaties for the promotion and protection of investments ('BITs') that provided clearer rules on investment protection. The vast majority of these BITs do not contain any reference to the MST. Instead, they include 'Fair and Equitable Treatment' ('FET') standard clauses. This chapter examines why States began using this expression instead of the MST. Many tribunals (notably in the context of NAFTA) interpreted FET clauses as providing investors with more extensive rights than the MST. This chapter examines States' reaction to these awards and how the MST has been used by them to limit investors' rights under FET clauses. In this respect, the most interesting and innovative FET clause is certainly Article 8.10 of the CETA which contains a closed list of elements which are considered by the Parties to embody the standard.

Journal Article New developments in the interpretation and application of the clean hands doctrine by investment tribunals Get access Patrick Dumberry Patrick Dumberry Patrick Dumberry, Full Professor, Faculty of Law (Civil Law Section), University of Ottawa, Ottawa, Ontario K1N 6N5, Canada. Tel: 613 562 5800 (ext 4286), Fax: 613-562 5121; Email: patrick.dumberry@uottawa.ca https://orcid.org/0000-0001-9139-1825 Search for other works by this author on: Oxford Academic Google Scholar Journal of International Dispute Settlement, idad027, https://doi.org/10.1093/jnlids/idad027 Published: 22 November 2023