Investor Presentaiton
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INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
IIA). To date, however, ISDS claims have almost invariably been
based on alleged violations of IIAS.
Some IIAs permit investors to submit claims arising out of
investment contracts, or contain umbrella clauses that might elevate
breach of contract claims to the treaty level. In those instances, the
host State's domestic law will likely be the basis for the tribunal's
decision, as investment contracts often select it as the law governing
the contract.
Finally, investors are subject to all of the laws and regulations of
the host State. In this regard, corporate law, tax law, administrative
law and practice, labour law, and many other relevant areas of law
will apply to the investor and to the investment. The failure of an
investor to comply with applicable domestic laws and regulations
could justify State acts and generally play a significant role in
determining the extent of State liability. In the event that
counterclaims are permissible, an investor's failure to comply with
domestic law can serve as a ground for a respondent State's
counterclaim (see section II.K).
3. Issues related to multiple applicable laws
Given the multiplicity of potentially relevant sources of
applicable substantive law, arbitral tribunals have had to deal with
the relationship between the applicable laws, including possibly
inconsistent or conflicting rules." The Occidental v. Ecuador case
presents an example of where several sources of law were applicable
to the same situation. As the tribunal summarized:
148.
"[The dispute] is first related to the Contract [between the
claimant and Petroecuador, a State-owned corporation]; it is
next related to Ecuadorian tax legislation; this is followed by
148 For a survey of different interactions between municipal and
international law in investment arbitration, see Sasson, 2010; Kjos, 2013.
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