Investor Presentaiton
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determines to be appropriate"." The same provision is found in the
ICC Rules (Article 17).
The UNCITRAL and ICC rules are used in private commercial
disputes as well as in investor-State arbitration. These rules give
tribunals more discretion to determine the applicable law, which is
often seen as desirable because it is difficult to foresee the
appropriate law applicable to all situations in advance." At the
same time, arbitral practice to date shows that such broad clauses are
unlikely to lead to any significant changes in result, compared with
situations governed by Article 42(1) of the ICSID Convention.
2. Roles of the different sources of applicable law
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It follows from the above typologies that IIAs and the applicable
arbitration rules identify three main sources of substantive law
relevant for the adjudication of ISDS cases:
•
the applicable IIA itself;
general international law; and
• domestic law of the host State.
It is likely that all three sources of law will play some role in
resolving an investment treaty dispute. Thus, decisions regarding
choice-of-law based on applicable-law clauses in IIAs have not been
very different from choices made in the absence of such clauses.
This is not to suggest that the application of different rules of law
(e.g., national vs. international) might not make a difference in the
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Article 35(1) of the UNCITRAL 2010 Rules; Article 33(1) of the
UNCITRAL 1976 Rules directs the tribunal to apply the choice-of-law
rules it considers applicable.
145 For an attempt to distill principles relating to applicable law in different
situations, see Douglas, 2009, pp. 39–133.
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