Investor Presentaiton
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Treaties, serve as a guide to interpreting the provisions of the
relevant IIA.
When an IIA refers to other international treaties, for example
the ICSID Convention, the New York Convention, the WTO
Agreements (e.g., the GATT, GATS or TRIMS), or the Articles of
Agreement of the International Monetary Fund, such conventions
are also incorporated into the IIA by reference.
(iii) Domestic law of the host State
Some IIA substantive provisions themselves refer to the
domestic law of the host State. For instance, IIAs often contain a
requirement for covered investments to be made in accordance with
the law of the host State; an obligation on States to admit
investments in accordance with its laws and regulations; and a
requirement that an expropriation be carried out in accordance with
domestic legal procedures. In such cases, the application of IIA
provisions mandates consideration of host State law regardless of
whether the IIA in question indicates that domestic law is one of the
sources of applicable law.
Even when domestic law is not expressly mentioned anywhere
in the IIA, it is quite likely to play a role in the decision. For
example, there is no international law of property; to the extent that
"shares" are an investment, domestic law defines what shares are
and how they can be legally transferred.
In addition, as previously mentioned, some IIAs contain broad
ISDS clauses that allow for arbitration of any disputes "related to an
investment", "in connection with an investment" or other similar
formulations. Where such a broad ISDS provision is complemented
by an applicable-law provision allowing for the application of host
State law, this is likely to mean that an investor may bring a claim
which is partially or fully based on the host State's alleged
violations of its own domestic laws (as opposed to violation of the
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