The Internationalization of Investment Contracts and its Effects on a State’s Sovereign Power to Legislate for Human Rights
By Jacob A. Akuo, Esq.,
Founding Partner & International Trade & Investment Law Expert
Foreign direct Investment (FDI) is operationalized typically through investment contracts or agreements and Bilateral Investment Treaties (BITs) or Multilateral Investment Treaties (MITs). While the former is signed between a host state of the investment and a foreign investor, the latter is signed between the host state of the investment and the home state of the investor. Investment treaties (which are not the subject of this paper) because they are signed between states are by their very nature governed by international law. Investment contracts which are arguably private contracts of states in most cases are now being governed by principles of international law. This is prima facie controversial because international law by its very nature governs the relationship between states and not the relationship between states and private persons. This fiction of international law not applying to non-state actors has been very obvious with regards to the practice of investment contracts. 
The practice of investment contracts in FDI existed well before the emergence of the investment treaty system in 1959. Multinational corporations (MNCs) devised this as a means of protecting their investments in foreign countries. This operated by means of negotiation of contracts with the host states with contracts entering into force at the moment of commencement of the investment. The forms of investment contracts vary from country to country and from sector to sector. But the most common forms of these contracts are Concession Agreements, Production Sharing Agreements (PSA) and Build-Operate-and-Transfer Agreements (BOT). A Concession Agreement is an investor-state agreement whereby the investor undertakes to exploit natural resources or run utilities or other public services in exchange of payment of royalties; PSA usually signed between the investor and the host state or a state-owned oil corporation of the host state for the exploitation of petroleum resources); BOT agreements concern the construction of infrastructure like airports, ports, dams, power plants and water supply systems. The investor undertakes the construction and financing of the infrastructure, and operates and maintains it for an agreed period of time which is usually long, for example 50 years. Since the inception of this investment idea by investment lawyers, there has been a proliferation of the number of investment contracts. Some of these contracts have been signed in addition to an existing BIT between the host state of the investment and the home state of the investor. Some have been signed in the absence of an existing BIT between the host and home states. Whatever the case, the contractual techniques have protected the terms of the contract as well as the asset flowing as a result of the contract. This has been done through devices built into the contract such as internationalization and stabilization clauses. Internationalization is one of the most prominent characteristics of investment contracts. Investors who are traditionally not parties of international law have managed to manipulate the low-order source of international investment law such as general principles of law, judicial decisions, and writings of the highly qualified publicists to construct systems of protection they desire. These sources of international law have been employed by arbitral tribunals when settling investment disputes arising out of contract. Another prominent feature of investment contracts which works hand in glove with the former is the ‘stabilization clause’. It has a far stronger negative effect on the legal system of the host state. This clause has the tendency of freezing the law of the host state which affects the investment in order to guarantee the risk that may arise from legislation that affects the investment. This has proven to be a stumbling block for the sovereign power of states to legislate for inter alia human rights. The absence of legislative or policy space for states has the effect of allowing the companies to proceed to human and labour rights violations with little room for recourse.
Against this backdrop, this essay in its first section will examine origin of the theory of internationalization and how this theory operates in practice. In second part, it will examine the way stabilization clauses are validated through internationalize. It will then examine the effect this theory has on a states sovereign legislative power and then lastly conclude.
- The Theory of Internationalization of Investment Contracts
The theory of internationalization of investment contracts involves the removal of an investment contract from sphere of the host state’s domestic law and subjecting it to an immutable, supranational system of law. In other words, the contract is removed from the legislative control of the state authority and its other sovereign powers. This has the effect of neutralizing the power of the host state to vary the terms of the contract and gives the foreign investment contract more stability. The essence of this whole theory of internationalization is to protect the foreign investor whose investment if not protected lies at the mercy of the sovereign legislative power of the host State.
In accordance with the principle of autonomy, parties to an investment contract have the right to subject their contract to whatever law they desire. The applicable law to the contract can be expressly chosen by the parties. In such a case, the arbitral tribunal will be obliged to utilize it in resolving disputes arising from the contract. In the absence of such a clause, the applicable law could be implied by the arbitral tribunal. The Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention) provides that, in the absence a choice of law by the parties to an investment disputes, the applicable law shall be the domestic law of the host state (including its rules on conflict of laws) and such rules of international law as may be applicable. Parties in making a choice of law may choose to subject the contract to domestic law of the host state or in some cases choose the sole application of international law to the contract. As it is more frequently the case, they choose the combine application of the domestic law of the host state and international law. Their choice of law may determine whether the contract has been directly or indirectly internationalized.
- Origin of the Theory
Before the principle of internationalization of contracts was built into investment law, investment contracts were totally subject to domestic laws. For example, in the Serbian Loans Case (case concerning the payment of various Serbian loans issues in France), the Permanent Court of International Justice stated that a contract between a state and a private party shall be governed by the domestic law of the state. Despite this decision, a stream of practice developed after this case which tilted towards internationalization. This can be traced back to three arbitrary awards made in disputes arising from three petroleum concessions and the writings of the most highly qualified publicists. These concessions were entered into by the governments of Qatar, Abu Dhabi, and Saudi Arabia on the one hand and foreign petroleum investors on the other. In all these concessions, the parties did not make any express choice of law in the applicable law clause. In all these awards, the arbitrators unanimously applied the techniques of conflicts of laws and decided that the law to apply to these concessions was the proper law of the contract – in these cases the domestic law of each of the abovementioned host states. The arbitrators however proceeded to further argue that the domestic laws of the host states were not sophisticated enough to deal with transactions involving the exploration of oil and therefore could not apply. Instead, the general principles of international law were applied in order to fill in these lacunae.
On the other hand, there were also a lot of international academic writings which took the view that in the absence of a law in the host state to properly deal with disputes arising from the concession, then the tribunal can apply principles of international law to fill in these lacunae. This approach which was stated by Lord McNair was later on broaden by some academics who stated that, because of the transnational nature of these contracts, the applicable law should be principles of international law because of their neutrality. Other authors have argued that, these contracts are quasi-international agreements akin to treaties and therefore warrant the application of international law. Weil on his part argued for internationalization by stating that though these contracts have a commercial nature, they form part of the foreign policy of the state and therefore should be subject to international law. Sornarajah on his part argues that, the nature of investment contracts warrants the application of international law. He justifies this by stating that these contracts exhibit features which indicate heavy international contact. Some of these features include the fact that the assets come from overseas, the investors are foreign nationals entitled to diplomatic protection of their home state. Some scholars argued for the application general principles of international law by looking at the two major characteristics of these contracts to wit: the arbitration clause providing for a neutral forum for the settlement of disputes; and a choice of law clause which withdraws the exclusive application of the law of the host state. They argue that, the latter which usually takes the form of a ‘stabilization clause’ which freezes the application of the law of the host state yields the contract to a supranational system of law – in this case general principles of international law.
As above seen, the theory of internationalization of investment contracts has now been deeply rooted in investment law. With the origin settled, it is important to see how this theory works in practice by looking at certain awards of the arbitral tribunals in cases touching on the choice of international law as the applicable law to the contract.
- How the Theory of Internationalization Operates
The internationalization of investment contracts can be implicit or explicit. Implicit internationalization arises in a situation where the arbitral tribunal in interpreting the contract implicitly read in the general principles of law applied by civilized nations as the applicable law to the contract even though the parties to the contract did not expressly choose that as the applicable law. Explicit internationalization occurs in a situation where parties in their choice of applicable law expressly choose international law as the applicable law to the contract.
- Implicit Internationalization
This approach is surrounded by controversies The legitimate question that is often asked is why the tribunals decide to read in international law as the applicable law to the contract based on the presumed intention of the parties to the contract rather than the arbitration clause. Sir Elihu Lauterpatch gave a plausible explanation for this by stating that the implied application of international law to investment contracts is driven by the desire to close the gap between the basic relationship between the investor and the state which is governed by the ‘proper law’ of contract on the one hand and the relationship between the host state and the home state of the investor which is governed by public international law. He however cautioned that this technique was still very much experimental and depended largely on the tribunal hearing the matter. It can be also be argued from the human rights perspective that, the property right of the investor is protected by placing the contract above the legislative powers of the state.
It is therefore important at this point to illustrate how implicit internationalization works by looking at certain arbitral awards. In the Sapphire International Petroleum Ltd v. National Iranian Oil Company the concession contract stated that the parties should carry out its provisions ‘in accordance with the principles of good faith and good will and to respect the spirit as well as the letter of the agreement’. It also contained a stabilization clause which stated that the Government or any governmental authority of Iran shall not vary or cancel the contract through any general or special statutory enactment, or any administrative measure or decree of any kind.  In determining the case the sole arbitrator Pierre Cavin did not construe this to mean an express choice of law clause. He set out to determine the system of laws that should apply to the contract in accordance with the parties intentions and in particular the evidence in the contract. First of all, he considered the applicability of national law. According to him, since the contract was concluded in Tehran and was due to be performed in most parts in Iran, the lex loci contractus and the lex loci executionis both pointed to the Iranian Law. Due to the special nature of the contract, Cavin found that it will be unlikely that the parties implicitly agreed to the application of Iranian Law. He articulated his argument by stating that the reference of good faith, together with the absence of any reference to a national system of law, leads the judge in accordance with the spirit of the agreement, what meaning can reasonably be given to a provision of the agreement which is in dispute. He stated that this could legitimately be found in such a clause of evidence of the parties not to apply strict rules of a particular system, but rather to rely upon the rules of law, based upon reason, which are common to civilized nations. These rules which are enshrined in article 38 of the Statute of the International Court of Justice as a source of law and numerous decisions of international tribunals have made use of them and clarified them.
Cavin also justified the application of international law to this contract by stating that it was a quasi-international contract which differed fundamentally from a mere commercial contract in that it was signed between an organ of a state and a foreign investor. As such the very nature of the contract released it from the sovereignty of a particular legal system. He further reinforced his argument for an implicit application of international law in the transnational aspect of the concession contract; its long-term nature; the tax arrangements; the need for the Iranian Government to ratify the concession; and the fact that the concession gave the investor possession and a certain extent of control over a territory – all of which gave the contract a public character. The investor needed legal security with regards to his investment and such security could not be found in the laws of the Iran which could be subject to change at any time by its government.
Implicit internationalization can again be seen in the award of Mobil Oil Iran v. Iran. In this arbitration, Iran which was the host state to a petroleum concession argued in favour of the application of national law. To buttress its argument, it relied on article 29 of the Agreement which stated that, the agreement shall be interpreted in accordance with the laws of Iran. The tribunal held that article 29 of the agreement was only partially and secondarily concerned with the choice of law. It relied on the principle of expressio unius exclusion alterius est and stated that, the choice of law only applied to issue of interpretation and should not be extended to other issues. With regards to the other issues, the tribunal held that because the agreement was signed between a State agency and major foreign companies, and because of the magnitude of the interest and the rights and obligations created as well as the fact that the contract was linked to the sharing of oil across the Persian Gulf, it could not be subject to the law of one party. It was therefore subject to international law.
From the above, it is evident that the tribunal practice has taken the trend of setting aside the principles sanctity of contract and party autonomy to choose the law to apply to their contract. They have proceeded to presume the intention of the parties in order to apply principles of international law to investment contracts.
- Explicit Internationalization
Explicit international can also be termed direct internationalization of investment contracts. This is less controversial than implicit internationalization because the arbitral tribunal does not presume the intention of the parties to apply international law. Application of international law is as a result of the express choice of the parties of international law or the combine of domestic and international law as the applicable law to the contract. The tribunal therefore proceeds on the principles of sanctity of contract and party autonomy to resolve the disputes arising from the contract. Here the tribunal finds it easier to classify these contracts as quasi-international agreements akin to treaties and therefore apply techniques for treaty interpretation such as the customary law principle of pacta sunt servanda contained in the Vienna Convention of the Law of Treaties. A good example can be seen in the AGIP S.A. v. Congo award wherein the parties in article 15(2) of the Agreement chose the combine of domestic and international law as the applicable law to the contract. The tribunal relied on this choice of law clause and used international law to supplement the domestic law of Congo.
- VALIDATION OF STABILIZATION CLAUSES THROUGH INTERNATIONALIZATION
Internationalization is only one aspect in an investment contract that makes the contract protective of the investor’s right. Another aspect is the stabilization clause. A stabilization clause is a clause in an investment contract which has the tendency of freezing the legislative powers of the host state with regards to the foreign investor during the period of the investment contract. The host state is therefore required not to alter the legal regime of the area addressed in the clause. Even though these clauses guard against regulatory measures in a like manner with indirect expropriation under investment treaties, they do not have the same goal. Their aim is to take the investor‘s armour a step further by making possible claims for compensation against state regulatory measures which were not otherwise possible under international law. The foreign investment contract is immunized from a range of matters such as taxation, environmental controls, labour regulations, and other regulations as well as it prevents the destruction of the contract itself before its expiry. There are a variety of stabilization clauses but whatever form it takes, it has the objective of preventing the application of changes to the law of the contract. The commonly used stabilization clauses are ‘freezing clause’, the ‘consistency clause’ and the ‘equilibrium clause’. With regards to the ‘freezing clause’, the applicable domestic law is the one in force the time the contract was concluded to the exclusion of subsequent legislation. The ‘consistency clause’ obliges the host state to apply to the projects laws which are consistent with the investment contract. Lastly, the ‘equilibrium clause’ allows for alterations of the terms of the contract subject to a renegotiation so as to restore the economic equilibrium or compensation in lieu of renegotiation.
A legitimate question that can be asked is whether these clauses should bind states who have the sovereign power to legislate for the public good. As a matter of constitutional theory, it may not be possible for a state to be bound by a private contract particularly with a foreign party, not to exercise its legislative powers. It is also trite law that the legislator is not bound by its own legislation and always maintain the power to change it. Therefore, as a matter of constitutional theory and state sovereign legislative power, a stabilization clause in the words of M. Sornarajah ‘…may not serve as anything more than a comforter to the foreign investor, who may derive some security from the believe that there is a promise secured from the state not to apply its future legislation to the contract.’ This will be a logical conclusion unless the investor takes a step further to strengthen the effect of the stabilization clause so as to attain the objective behind it. This is where internationalization comes in to give validity to this stabilization clauses. The investor therefore carries its shield further by subjecting these clauses to supranational legal systems therefore making it difficult for the state to invoke its sovereign and constitutional power to legislate. As already above mentioned some authors argued that an arbitration clause together with a choice of law clause which takes the form of a stabilization clause has the effect of internationalization of an investment agreement. On this premise, it can be concluded that, internationalization and stabilization clauses are mutually reinforcing in furthering the protection an investor has under an investment contract.
How stabilization clauses are validated by internationalization can best be illustrated by looking at an arbitral award on this issue. In AGIP S.A. v. Congo the tribunal had to deal with a stabilization clause that the domestic law of Congo will not change to affect certain parts of the contract with AGIP. Congo later nationalized AGIP S.A. and the tribunal had to deal with the nationalization decree from the viewpoint of international law which the contract had explicitly referred to and ruled as follows:
“These stabilization clauses, which were freely entered into by the Government, do not affect the principle of legislative and regulatory sovereignty since it retains both with respect to those, whether nationals or foreigners, with whom the government has not entered into such undertakings, and that, in the present case, they are limited to rendering the modification to the legislative regulatory provisions provided for the Agreement, unopposable to the other contracting party.”
The tribunal proceeded to state that
“…it suffices to concentrate the examination of the compatibility of the nationalization with international law on the stabilization clause. It is indeed in connection with these clauses that the principles of international law are used to complete the rules of Congolese law. The reference made to international law suffices to demonstrate the nationalization carried out in the following case. It follows that the Government has to compensate AGIP for the damage suffered by it as a result of the nationalization.”
- EFFECT OF INTERNATIONALIZATION ON A STATE’S SOVEREIGN POWER TO LEGISLATE FOR HUMAN RIGHTS
We have examined how internationalization of an investment contract removes the contract from the domestic law of the host state and subjects it to a supranational system of laws. We have also seen how stabilization clauses set out to halt the legislative powers of the state with regards to the foreign investment and the role internationalization plays in the validation of these stabilization clauses. With this settled, it is important to examine state sovereignty and the legislative powers deriving therefrom, and how this powers have been limited especially with regards to legislation for human rights.
- SOVEREIGN LEGISLATIVE POWER: OBJECTIVE AND SUBJECTIVE ARGUMENTS
Sovereignty is a very important aspect of statehood. It is a legal “…shorthand for legal personality of a certain kind, that of statehood…” In other words, sovereignty can be looked upon as the independence of a state to exercise in a territorial portion of the globe the functions of a state. The functions of a state are exercised by the three arms of government to wit: the executive, the legislature and the judiciary. The relationship between international law principle of sovereignty and international investment law has been surrounded by controversy. Different schools of thoughts have emerged on how these two conflicting areas of international law should coexist. These advancements have been made by both academics and arbitral tribunals. While some of these schools of thought propound that state sovereignty should always stand above state obligations under investment contracts, others have argued against. Arguably, there is a third school of thought with proponents advocating for cautious consideration of this issue. They urge for a balance between the two conflicting principles so as to create a hitch free coexistence. Human rights lawyers and civil society fit more into this category. To them, balancing these conflicting paradigms is of utmost importance because it will mean a guarantee of the human right to property of investor on the one hand as well as the human rights of the population of the host state on the other. The human rights of the population of the host state are guaranteed by allowing the host state to exercise its sovereign legislative powers.
Whatever the case, the legitimate question which still stands is whether a state can lose its sovereignty as a result of an internationalized investment contract and a stabilization clause. There are subjective and objective arguments that address this issue of state sovereignty with regards to investment contracts. According to proponents of the objective argument, sovereignty is regarded as a principle of international law which provides power and rights to a state. This approach which was well articulated in the LIAMCO v. Libya award considers concession rights as ‘property’ which could be both corporeal and incorporeal so long as those rights have a pecuniary or monetary value. The tribunal held that the right to property constituted an inviolable principle as recognized by both Libyan and international law. It stated on the other hand that the right to nationalize is sovereign, subject to compensation for the premature termination of a concession. Therefore, nationalization which is not discriminatory or followed by wrongful conduct is not unlawful, but a source of liability to compensate the concessionaire for said premature termination of the concession agreement. This argument aligns with the principle of permanent sovereignty over natural resources and is now regarded as a customary international law. In a nut shell, the objective argument grants the state the right to expropriate property and to revoke contractual rights previously granted by it. This if not cautiously dealt with can open a floodgate of such revocations.
Proponents of the subjective argument on the other hand argue that the conclusion of investment contracts is an inherent characteristic of state sovereignty. Therefore a state in entering into such contracts only exercises the sovereignty it has. Sovereignty to them is regarded as a personality of statehood which gives the state the power to enter into contracts and be bound by them based on the principle of pacta sunt servanda. This is the approach the ICSID took in Texaco Overseas Petroleum Co. v. Libya, wherein it stated that, “… a State cannot invoke its sovereignty to disregard commitments freely undertaken through the exercise of this same sovereignty and cannot through measures belonging to its internal order make null and void the rights of the contracting party which has performed its various obligations under the contract.” As such the tribunal stated that, a distinction must be drawn between enjoyment and exercise of sovereignty. In the AGIP award, the tribunal took a similar point of view as above and went further to state that with regards to stabilization clauses, the state is bound because it freely provided its consent to them. These clauses according to the tribunal do not affect the state’s legislative and regulatory powers because they apply only between the state and the parties to the contract and so cannot be invoked by the state against said parties. As such, the state still retains its legislative and regulatory powers with regards to other people (be they nationals or foreigners) who are not parties to the contract. As seen above, the proponents of the subjective argument to sovereignty propound that a state entering into investment contracts does not negate its sovereignty but merely exercises it. The objective approach on the other hand propounds the direct opposite.
- EFFECT ON SOVEREIGN POWER TO LEGISLATE FOR HUMAN RIGHTS
The subjective and the objective arguments both have different effects on a state’s sovereign legislative power. While the former regards contracting as manifestation of sovereignty and so a state should be bound by such contracts, the latter sees it as power and right to end or terminate such agreements at the will of the state. The former therefore gives the state less regulatory breathing space as compared to the latter. The consequence is that, an internationalized contract with a stabilization clause binds the state because the state signed the contract as a manifestation of its sovereignty. The issue that arises is whether a state can legislate for the human rights of its citizenry. It is not strange concept that investment contracts usually contain certain clauses which have negative bearings on the environment, human rights, and labour rights. This is especially the case where the host state is an under developed or developing nation. These states in order to attract investors go ahead to lower their labour, human rights and environmental standards. The investors who are out to make huge profits sign contracts with these countries with strong stabilization clauses in order to maintain the status quo that was at the time of signature of the contract. Though proponents of the subjective argument propound that this the regulatory and legislative power of the state is only halted with regards to the parties of the contract, there is also a famous quote that injustice anywhere is injustice everywhere. Furthermore, the legislative powers of the state are not only halted with regards to the investment but with regards to the entire state especially in the case of signing and ratification of international treaties in order to abide with the new international human rights, labour and environmental standards. As Amnesty International points out in its exclusive report on Baku-Tbilisi-Ceyhan Pipeline project, the state shall have to enter into this new treaties with lots of reservations or face the pain of massive claims. This may have the potential of defeating the purpose of the treaty which is contrary to article 19(c) of the VCLT. Things are worsened by the fact that some of these contracts are valid for lengthy periods and could have adverse effects on countries with fragile human rights records. They could be a springboard to uprisings for equitable distribution of benefits from natural resources exploitation and therefore bring about further human rights violations.
Another dilemma is that a state is bound by any treaty it signs and cannot invoke domestic law as an excuse for the non-observation of that treaty. In analogy, a state cannot invoke investment contracts which arguably are private contracts of the state as a defence before a human right court (like the European Court of Human Rights) or a treaty body that it could not respect, protect and fulfil the human rights of its population as a result of such contracts. It is therefore obvious that the state will remain with tight hands as result of these contracts while the investor makes loads of profits at the expense of the human rights of the citizens of a host state to the investment.
Internationalization of investment contracts could also be a big problem to sovereign legislative powers where investment in most of the sectors of the country are owned by foreigners. This is especially the case in developing countries whereby in order to improve productivity and development, they privatize most of their key sectors to foreign investors. These privatizations which could touch across various sectors (and could also run for many years) may have a massive effect on human rights, labour rights and sustainable development since the state’s sovereign power to legislate would have been halted by many stabilization clauses. For example Argentine has been a respondent for over 50 arbitrations proceedings cutting across various sectors of the country. 
- CONCLUSION AND RECOMMENDATION
After analysing how internationalization removes the contract from the domestic law of the host state and subjects it to supranational system of laws, it is fair to conclude that this practice together with the continuous presence of stabilization clauses in these contracts has been stumbling block to the sovereign legislative power of host states to international investment. This practice which relies heavily on general principles of international law, judicial decisions and the writings of the mostly highly qualified publicist is controversial because these sources of international law are the inferior sources and so should not outweigh state sovereignty which comes from superior sources of international law such as treaties. Furthermore, there are no general principles of international contract law. The tribunals only intend make use of the contract laws of civilized legal systems which happen to be in most cases the systems of the home states of most of these investors.
Based on the above, the way forward is to balance these principles of investment law and the needs for the state to legislate for human rights. This can easily be achieved through equilibrium stabilization clauses. These clauses guarantee economic equilibrium instead of legal stability. For example the Model Exploration and Production Sharing Agreement of the Sheikdom of Qatar adopted in 1994 provides for a good faith renegotiation between the host state and the investor wherein the host state enacts new legislation that affects the investment contract. This approach more human right friendly as it allows the state regulatory breathing space.
Lastly, investors can read in the regulatory powers of states on human rights in this contracts.. Here the investor undertakes that, if they see a state concern about a valid human right issue or environmental issue, they will not take any action with regards to the stabilization clause in force. This approach can be seen in the Baku-Tbilisi-Ceyhan (BTC) – Turkey IC, whereby BTC undertakes not stop the state from promulgating social and environmental laws in the areas where the pipeline passes through so long as these laws fall within the standard of laws governing pipeline projects in other jurisdictions. Even though these seems narrow, some breathing space has been created.
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- 1945 United Nations Charter
- 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States, UNTS vol. 575
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- AGIP S.A. v. Congo Award of November 30, 1979, 1 ICSID Reports 306
- AMCO Asia Co. v. Indonesia (1981) Case No. ARB/81/1
- Anglo-Persian Oil Co. v. Sheikh of Abu Dhabi (1951) 18 ILR 144
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- Netherlands v. USA (1928) Per. Ct. Arb. 2 U.N. Rep. Intl. Arb. Awards 829
- Ruler of Qatar v. International Marine Oil Company (1953) 20 ILR 354
- Saudi Arabia v. Aramco (1958) 27 ILR 117
- Sapphire International Petroleum Ltd v. National Iranian Oil Company (1963) 35 ILR 136
- Serbian Loans Case (1929) Series A – N°s 20/21
- Texaco Overseas Petroleum Co. v. Libya (1978) 17 ILM 1
- ICSID official website, available at https://icsid.worldbank.org/apps/ICSIDWEB/cases/Pages/AdvancedSearch.aspx?rntly=ST4
 M. Sornarajah, The International Law on Foreign Investment, (3rd edition, Cambridge University Press, 2010) (M. Sornarajah), p. 276.
 Ibid, p. 276.
 Ibid, p. 277.
 Lorenzo Cotula, ‘Foreign Investment Contracts’ (2010) IIED accessed at http://pubs.iied.org/pdfs/17015IIED.pdf on March 28/ 2015.
 M. Sornarajah, p. 289.
 Adopted on March 18, 1965, UNTS vol. 575, p. 159, which entered into force on October 14, 1966.
 ICSID Convention, article 24(1).
 Hege Elisabeth Kjos, Applicable Law in Investor-State Arbitration: Interplay Between National and International Law, (1St Edition, Oxford University Press, 2013), (Hege Elizabeth), p. 213.
 (1929) Series A – N°s 20/21
 M. Sornarajah, p. 289.
 Ruler of Qatar v. International Marine Oil Company (1953) 20 ILR 354.
 Anglo-Persian Oil Co. v. Sheikh of Abu Dhabi (1951) 18 ILR 144.
 Saudi Arabia v. Aramco (1958) 27 ILR 117.
M. Sornarajah, p. 291.
 A. Verdross, ‘Quasi-International Agreements and International Economic Transactions’ (1968) 18 Yearbook of World Affairs 230.
 P. Weil, ‘Le Droit International en Quête de son Identité’ (1992-VI) 237 Recueil des Cours 96
 M. Sornarajah, ‘The Settlement of Foreign Investment Disputes’, in R. Doak Bishop, James R. Crawford, and W. Michael Reisman (eds) Foreign Investment Disputes: Cases, Materials and Commentary (2nd edition, Wolters Kluwer Law & Business, 2014), p. 227
 See Hege Elizabeth, p. 215;
 E. Lauterpacht, ‘The World Bank Convention on the Settlement of International Investment
Disputes’ in Recueil d’études de droit international en hommage à Paul Guggenheim (Genève, Tribune,
1968), 642, 654
 (1963) 35 ILR 136
Ibid, para. 140 of Award
 Ibid, para. 171 of Award.
 Ibid, para. 173 of Award
 Ibid, para 171 of Award.
 Partial Award No. 311-74/76/81/150-3, 14 July 1987
 Ibid, para 67 of Award.
 Ibid, para 80 of Award.
 (1969) UNTS, Vol. 1155, p. 331 which came into force on the 27/01/1980, article 27.
 Award of November 30, 1979, 1 ICSID Reports, 306.
 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (2nd edition, Oxford University Press, 2012), (Rudolf and Christoph), p. 83.
 Paolo Bertoli and Zeno Crespi Reghizzi, ‘Regulatory Measures and Standards of Treatment and the Law Applicable to Investment Disputes’ in Tullio Treves et al (eds), Foreign Investment, International Law, and Common Concerns (1st edition, Routledge, 2014), (Paolo and Zeno), p. 43.
 M. Sornarajah, p. 282.
 Cotula, Lorenzo. “Regulatory takings, stabilisation clauses and sustainable development.” OECD Investment Policy Perspectives 2008 (2009): 69.
 M. Sornarajah, p. 283.
 Supra (footnote 23) .
 Award of November 30, 1979, 1 ICSID Reports 306.
 At para. 86-8 of Award; For more commentaries on this case, see Taida Begic, Applicable Law in International Investment Disputes (1st edition, Eleven International Publishing, 2005), pp 21-25
 Ian Brownlie, Principles of Public International Law (7th Edition, Oxford University Press, 2008), (Brownlie), p. 106.
 Netherlands v. USA (1928) Per. Ct. Arb. 2 U.N. Rep. Intl. Arb. Awards 829
 See generally A. F. M. Maniruzzaman, “State contracts in contemporary international law: monist versus dualist controversies.” European Journal of International Law12.2 (2001): 309-328.
 Esa Paasivitra, ‘Internationalization and Stabilization of Contracts versus State Sovereignty’ (1990) British Yearbook of International Law, (Esa Paasivitra), p. 333.
 Award of 1977.
 See pp. 103-4 of Award.
 See pp. 121-2 of the Award.
 General Assembly Resolution 1803 (XVII) of December 14, 1962.
 AMCO Asia Co. v. Indonesia (1981) Case No. ARB/81/1
 Esa Paasivitra, p. 336.
 Esa Paasivitra, p. 334.
 (1978) 17 ILM 1
 Ibíd., 475.
 Dr. Martin Luther King, Jr.
 Amnesty International, ‘Human Rights on the Line: Baku-Tbilisi-Ceyhan Pipeline Project’ (May 2003), Amnesty International UK (BTC report), p. 16.
 For example the Baku-Tbilisi-Ceyhan Pipeline project is meant to run for 40 years and could extend to 60 years.
 Amnesty International, ‘Contracting Out of Human Rights: The Chad-Cameroon Pipeline’ (September 2005) Amnesty International UK, p. 13-14.
 VCLT, article 27.
 BTC Report, p.16.
 ICSID official website https://icsid.worldbank.org/apps/ICSIDWEB/cases/Pages/AdvancedSearch.aspx?rntly=ST4 accessed on March 31, 2015.
 For example the United Nations Charter (1945), article 2 (1);
 Rudolf Dolzer and Christoph Schreuer, p. 85.
 See Appendix 5, article 4.2 of the Agreement.