Investor Presentaiton
127
Most tribunals have resisted this pressure, but it was successful in
one known case.
141
M. Applicable substantive law
This section discusses the sources of substantive law applied in
ISDS disputes and the ways these sources relate to each other.
Applicable substantive law should not be confused with applicable
procedural law. 142
1. Treaty provisions on applicable law
There is no consistent approach to the question of applicable
law in IIAS. The majority of treaties can be placed in one of four
categories with respect to the sources of law that they instruct
tribunals to apply: (i) the IIA and applicable international law; (ii)
the IIA, applicable international law and host State's domestic laws;
(iii) the law agreed upon by the disputing parties; and (iv) no
provision that instructs tribunals on the applicable law. Examples of
each are given below.
(i) The treaty and applicable international law
The Energy Charter Treaty (ECT), in Article 26(6), provides
that a tribunal "shall decide the issues in dispute in accordance with
141 Piero Foresti et al. v. South Africa, ICSID Case No. ARB(AF)/07/1,
Letter Regarding Non-Disputing Parties, 5 October 2009.
142 The procedural law governing the arbitration is primarily drawn from
the applicable arbitration rules as complemented or modified by the ISDS
provisions in the treaty itself. In addition, the law of the place of arbitration
is a relevant source of procedural law in non-ICSID Convention cases. The
law of the place of arbitration governs, in particular, imposition of
provisional measures (see section II.I) and setting aside the arbitral award
by courts at the place of arbitration (see section II.Q.1). In an ICSID
Convention case, the Convention itself governs those matters as ICSID
Convention arbitrations are de-localized.
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