Redefining sovereignty in international economic law

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REDEFINING SOVEREIGNTY IN
INTERNATIONAL ECONOMIC LAW
The concept of state sovereignty is increasingly challenged by a proliferation of
international economic instruments and major international economic institutions. States from both the south and north are re-examining and debating the
extent to which they should cede control over their economic and social policies
to achieve global economic efficiency in an interdependent world. International
lawyers are seriously rethinking the subject of state sovereignty, in relation to
the operation of the main international economic institutions, namely the
WTO, the World Bank and the International Monetary Fund (IMF).
The contributions in this volume, bringing together leading scholars from
the developed and developing worlds, take up the challenge of debating the
meaning of sovereignty and the impact of international economic law on state
sovereignty. The first part looks at the issues from the perspectives of general
international law, international economic law and legal theory. Part two discusses the impact of trade liberalisation on the sovereignty of both industrialised
and developing states and Part three concentrates on the challenge to state sovereignty created by the proliferation of investment treaties and the significant
recent growth of investment treaty based arbitration cases. Part four focuses on
the domestic and international effects of international financial intermediaries
and markets. Part five explores the tensions and intersections between the international regulation of trade and investment, international human rights and
state sovereignty.
Studies in International Trade Law: Volume 7

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Studies in International Trade Law
Titles in this series:
Volume 1 Basic Legal Instruments for the Liberalisation of Trade
Federico Ortino
Volume 2 The Power to Protect: Trade Health, and Uncertainty in the WTO
Catherine Button
Volume 3 The WTO, the Internet and Trade in Digital Products
Sascha Wunsch-Vincent
Volume 4 Good Faith in the Jurisprudence of the WTO:
The Protection of Legitimate Expectations, Good Faith Interpretation
and Fair Dispute Settlement
Marion Panizzon
Volume 5 Globalisation and Labour Rights: The Conflict between Core
Labour Rights and International Economic Law
Christine Kaufmann
Volume 6 The World Trade Organization and Human Rights
Fiona Macmillan
Volume 7 Redefining Sovereignty in International Economic Law
Edited by Wenhua Shan, Penelope Simons and Dalvinder Singh
Volume 8 Law and Ethics in International Trade and Environment Debates
Ilona Cheney
Volume 9 Constitutionalism, Multilevel Trade Governance and

Social Regulation
Edited by Christian Joerges and Ernst-Ulrich Petersmann
Volume 10 The Human Rights Impact of the World Trade Organisation
James Harrison


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Redefining Sovereignty in
International Economic Law

Edited by

Wenhua Shan
Penelope Simons
and
Dalvinder Singh

OXFORD AND PORTLAND, OREGON
2008


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Published in North America (US and Canada) by
Hart Publishing
c/o International Specialized Book Services
920 NE 58th Avenue, Suite 300
Portland, OR 97213-3786
USA
Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190
Fax: +1 503 280 8832
E-mail:
Website: www.isbs.com
© The editors and contributors jointly and severally, 2008
The editors and contributors have asserted their right under the Copyright, Designs and
Patents Act 1988, to be identified as the authors of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted, in any form or by any means, without the prior permission of Hart Publishing,
or as expressly permitted by law or under the terms agreed with the appropriate reprographic
rights organisation. Enquiries concerning reproduction which may not be covered by the
above should be addressed to Hart Publishing at the address below.
Hart Publishing, 16C Worcester Place, OX1 2JW
Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710
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British Library Cataloguing in Publication Data
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ISBN: 978-1-84113-701-8
Typeset by Hope Services (Abingdon) Ltd.
Printed and bound in Great Britain by
Antony Rowe Ltd, Chippenham


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Acknowledgements
We would like to express our gratitude to the Society of Legal Scholars for their
generous financial support of the symposium entitled ‘Redefining Sovereignty:
An International Debate on Sovereignty and International Economic Law’, from
which this edited collection of papers originates. In particular, we are grateful to
Professor Tony Dugdale, then President of the SLS, for attending and speaking
at the conference. We thank Mr Karl Falkenberg, Professor Francis Jacobs,
Professor Dan Sarooshi, and Dr Hong Zhao for their thought-provoking presentations. Furthermore, we would like to thank Professor James Crawford,
Whewell Professor of International Law, University of Cambridge for his support during the symposium and for his keynote address at the conference dinner
on May 30th, 2007. We are indebted to Dr Lucy Vickers, Professor of Law and
Director of the Centre for Legal Research and Policy Studies for overseeing the
planning, organisation and management of the event, as well as to Tamsin
Barber, Conference Administrator, Jane Salisbury, Senior Law Administrator,
and Nikki Bunce, Law Administrator at Oxford Brookes University. The support provided by the University (Professor Diana Woodhouse), the School of
Social Sciences and Law, and the Department of Law (Professor Meryll Dean)
was much appreciated. Finally, we extend our sincere thanks to Richard Hart

and Hart Publishing for supporting the conference and the publication of this
collection.
Shan, Simons and Singh
March 2008, Oxford


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Contents
Acknowledgements
Contributors
List of Tables, Figures and Boxes
List of Abbreviations
Table of Cases
Table of International and National Instruments

Introduction

v
ix
xv
xvii
xxi
xxvii
xxliii

Part One: Sovereignty and International Economic Law
1. Sovereignty: Outdated Concept or New Approaches
John H Jackson
2. State Sovereignty, Popular Sovereignty and Individual Sovereignty:
From Constitutional Nationalism to Multilevel Constitutionalism in
International Economic Law?
Ernst-Ulrich Petersmann

3

27

3. Sovereignty, Lost and Found
Robert Howse

61

4. Sovereignty and International Economic Law
Vaughan Lowe

77

Part Two: Trade Liberalisation and WTO Reform
5. Trade as the Guarantor of Peace, Liberty and Security?
An Chen
6. Sovereignty and Reform of the World Trade Organisation
Philip M Nichols
7. Sovereignty Issues in the WTO Dispute Settlement—A ‘Development
Sovereignty’ Perspective
Asif Qureshi
8. The Rule of Law and Proportionality in WTO Law
Mads Andenas and Stefan Zleptnig

87
147

159
171


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viii Contents

Part Three: Investment Treaties and Investment Arbitration
9. The Neo-Liberal Agenda in Investment Arbitration: Its Rise,
Retreat and Impact on State Sovereignty
M Sornarajah

199

10. International Investment Arbitration: A Threat to State Sovereignty? 225
Joachim Karl
11. Calvo Doctrine, State Sovereignty and The Changing Landscape of
International Investment Law
Wenhua Shan

247

Part Four: Banking Regulation and International Financial Institutions
12. Banking, Economic Development and the Law
Charles Chatterjee and Anna Lefcovitch

315

13. The Role of the IMF and World Bank in Financial Sector Reform and
Compliance
331
Dalvinder Singh
14. International Financial Law and the New Sovereignty: Legal
Arbitrage as an Emerging Dimension of Global Governance
Jorge Guira

363

Part Five: Human Rights and International Economic Law
15. Re-Righting International Trade: Some Critical Thoughts on the
Contemporary Trade and Human Rights Literature
Andrew TF Lang
16. Binding the Hand that Feeds Them: The Agreement on Agriculture,
Transnational Corporations and the Right to Adequate Food in
Developing Countries
Penelope Simons
17. Realising Rights in an Era of Economic Globalisation:
Discourse Theory, Investor Rights, and Broad-Based
Black Economic Empowerment
David Schneiderman
Index

387

399

429

445


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Contributors
Mads Andenas is Professor of Law at the University of Leicester. He was
Director of the British Institute of International and Comparative Law, London
for five years. He is also a Senior Teaching Fellow in European Community Law
at the Institute of European and Comparative Law, University of Oxford, and a
Fellow of Harris Manchester College, University of Oxford and at the Institute
of Advanced Legal Studies, University of London. He is General Editor of the
International and Comparative Law Quarterly (OUP) and of European Business
Law Review (Kluwer Law International). His most recent work includes:
G Canivet, M Andenas and D Fairgrieve (eds), Judicial Independence and
Accountability (London, BIICL, 2006); G Alpa and M Andenas Fondamenti del
diritto privato europeo (Milano, Guiffré, 2005); M Andenas, B Hess and
P Oberhammer (eds), Enforcement Agencies Practice in Europe (London,
BIICL, 2005).
Charles Chatterjee is a Professor of Law at London Metropolitan University. He
is a Barrister in England and Wales. He has an LLM from the University of
Cambridge and an LLM and PhD from the University of London. He has published a considerable number of books and articles on various issues of public
international law and international commercial law.
An Chen is a Senior Professor of Law, Xiamen University School of Law, P R
China. He is the Chairman of the Chinese Society of International Economic
Law and an Arbitrator at the China International Economic and Trade
Arbitration Commission (CIETAC) and at the International Centre for the
Settlement of Investment Disputes (ICSID). Professor Chen was a Senior
Visiting Scholar at Harvard Law School, 1981–1983 and has published numerous books and articles in international economic law.
Jorge Guira Esq, BA, MA, JD, LLM, PhD is Director of the Warwick University
Programme in International Corporate Governance and Financial Regulation,
and Associate Professor of International Economic and Financial Law. He is
also a Senior Visiting Fellow at CCLS, Queen Mary College, University of

London.
Robert Howse is Alene and Allan F Smith Professor of Law at the University of
Michigan Law School. His recent books include The Regulation of
International Trade, co-authored with MJ Trebilcock (3rd edn London,
Routledge, 2005); The Federal Vision: Legitimacy and Levels of Governance in
the United States and the European Union co-edited with K Nicolaidis (Oxford,
OUP, 2001) and Alexandre Kojeve, B-P Frost (ed), B-P Frost and R Howse


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x Contributors
(trans), Outline of a Phenomenology of Right (Lanham MD, Rowman and
Littlefield, 2000). He is series editor of the Oxford Commentaries on WTO Law
and serves on the editorial advisory board of the European Journal of
International Law. He is a frequent consultant or adviser to government agencies and international organizations such as the OECD, UNCTAD, the InterAmerican Development Bank, the International Centre for Trade and
Sustainable Development, the Law Commission of Canada and the UN Office
of the High Commissioner for Human Rights.
John Jackson is a University Professor of Law at Georgetown University Law
Centre and Sometime HE Yntema Professor of Law at the University of
Michigan. Over the years, he has advised the US and various foreign governments, international organizations, and in 2000, served as chairperson of a
WTO panel for a trade dispute settlement procedure. Professor Jackson has
served as a member of the board of editors for the American Journal of
International Law, Law and Policy in International Business, International Tax

& Business Lawyer, Fordham International Law Journal, and the Maryland
Journal of International Law & Trade. He is a member of the editorial board
for The World Economy and a past member of the editorial boards for the
International Bar Association and the Journal of World Trade Law. He is the
editor in chief and a founding editor of the Journal of International Economic
Law.
Joachim Karl is a Legal Affairs Officer in the Division on Investment,
Technology and Enterprise Development of UNCTAD. Before joining the UN
in November 2005, he worked for seven years on international investment matters at the OECD and the Energy Charter Secretariat in Brussels. Dr Karl holds
a PhD in international law from the University of Konstanz in Germany, and a
Masters of Public Administration from Harvard’s JF Kennedy School of
Government. He has written numerous articles on international investment
issues.
Andrew Lang is a Lecturer in Law at the Department of Law, London School of
Economics, teaching Public International Law, with a specialty in International
Economic Law. He has a combined BA/LLB degree from the University of
Sydney, and his PhD from the University of Cambridge. From 2004–2006, he
was the Gott Research Fellow in Law at Trinity Hall, University of Cambridge.
He has published on a variety of issues related to the legal aspects of international trade.
Anna Lefcovitch, is a Solicitor at EC Harris, UK.
Vaughan Lowe is Chichele Professor of Public International Law, and a Fellow
of All Souls College, University of Oxford. He also practices in the field of international law as a barrister from Essex Court Chambers, London, and has
appeared in cases before the English courts, international arbitral tribunals, the


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Contributors xi
European Court of Human Rights, the Inter-American Commission of Human
Rights, the International Tribunal on the Law of the Sea, and the International
Court of Justice. He has been a member of arbitral tribunals constituted under
the UN Law of the Sea Convention and NAFTA, and is an associé of the Institut
de droit international.
Philip Nichols is an Associate Professor of Legal Studies and Business Ethics at
The Wharton School of the University of Pennsylvania. Professor Nichols has
conducted extensive fieldwork in Central America, Central Asia, East Asia, and
the former Soviet Union. He also spent a year as a visiting professor at the
National University of Mongolia. Professor Nichols’ current projects include a
comparison of sovereignty in Europe and China, and the creation of codes of
conduct for local businesses in Central America.
Ernst-Ulrich Petersmann is Professor of International and European Law at the
European University Institute and joint chair at the Robert Schuman Centre for
Advanced Studies, Florence. He was previously professor at the University of
Geneva and its Graduate Institute of International Studies, and legal adviser in
the GATT and WTO. Recent publications include: Developing Countries in the
Doha Round: WTO Decision-Making Procedures and Negotiations on Trade
in Agriculture and Services (Fiesole, EUI/RSC, 2005); Reforming the World
Trading System: Legitimacy, Efficiency and Democratic Governance, (Oxford,
OUP, 2005); The WTO Dispute Settlement System 1995–2003, (co-edited with
F Ortino), (Amsterdam, Kluwer, 2004); Transatlantic Economic Disputes. The
EU, the US and the WTO, (co-edited with MA Polack), (Oxford, OUP, 2003).
Asif Qureshi is Professor of International Economic Law at the University of
Manchester. A barrister since 1978, he has acted as a consultant on WTO law
to and for various governments and international organisations including,

Pakistan (1998, 2000, 2003), Saudi-Arabia (2001), GCC (1987), the UNDP
(1998), the Asian Development Bank (2000), UNCTAD (2001), the
Commonwealth Secretariat (2001, 2002, 2003), the Islamic Development Bank
(1999), the CTLD (2003), ICTSD (2003), the WTO (1999, 2004), and Cambodia
(2005). He is currently working on a book on an aspect of WTO Law for
Cambridge University Press, and on a second edition of his book, International
Economic Law for Sweet & Maxwell.
David Schneiderman is Associate Professor of Law and Political Science at the
University of Toronto and is currently visiting sabbatical scholar at Georgetown
University Law Center. He has authored numerous articles on Canadian constitutional law and history, comparative constitutional law, and economic globalization and constitutionalism. His most recent publications include, The Last
Word: Media Coverage of the Supreme Court of Canada (with F Sauvageau and
D Taras) (Vancouver, UBC Press, 2006) and Constitutionalizing Economic
Globalization: Investment Rules and Democracy’s Promise (Cambridge, CUP,
2008).


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xii Contributors
Wenhua Shan is a Professor of Law at Oxford Brookes University, a University
Professor of Law and the Dean of the School of Law of Xi’an Jiaotong
University, and a visiting University Chair Professor in Law, Xiamen University,
PR China. He has PhDs from both the University of Cambridge, and Xiamen
University. Professor Shan is the Co-General-Editor of the China and

International Economic Law Series (Hart Publishing) and the ‘Overseas Chinese
Law Scholars Series’ (Peking University Press). His recent publications include
The Legal Framework of EU-China Investment Relations: A Critical Appraisal
(Hart Publishing, 2005), International Trade Law (vols I and II, Peking
University Press, 2000, in Chinese), and Chinese Investment Treaties: Policy and
Practice (co-author, OUP, forthcoming).
Penelope Simons is an Associate Professor of Law at the Faculty of Law,
University of Ottawa, Canada. She has an LLM and PhD in international law
from the University of Cambridge. She was called to the British Columbia Bar
in 1996 and practiced corporate/commercial law with McCarthy Tétrault LLP.
She subsequently, worked in the nongovernmental sector on peace and disarmament issues. She conducts research and has published on issues of state
responsibility for extraterritorial corporate activity, corporate self-regulation
and human rights, and the intersection of human rights, international economic
law and transnational corporate activity, and is the co-author (with A Macklin
and G Gagnon) of The Governance Gap: Business and Human Rights in
Conflict Zones (London, Routledge, forthcoming).
Dalvinder Singh is an Associate Professor of Law, University of Warwick. He
was formerly a Senior Lecturer in Law at Oxford Brookes University. He is
Managing Editor of the Journal of Banking Regulation and an Associate
Research Fellow at the Institute of Advanced Legal Studies, University of
London. He has acted as a consultant to the IMF, and is the author of Banking
Regulation of UK and US Financial Markets, (Aldershot, Ashgate, 2007) and
editor (with A Campbell, JR LaBrosse and DG Mayes) Deposit Insurance
(Basingstoke, Palgrave Macmillan, 2007).
M Sornarajah is a Professor at the Faculty of Law of the National University of
Singapore. He is also a Fellow at the Centre for Energy, Petroleum and Mineral
Law and Policy at the University of Dundee, Scotland, where he teaches courses
on International Arbitration and International Investment Law. He has been
consultant to the United Nations Conference on Trade and Development on
Multilateral Investment Treaties and was consultant to the United Nations

Development Programme and the Ministry of Justice of Vietnam. He is the
author of Pursuit of Nationalized Property (Dordrecht and Boston, Martinus
Nijhoff, 1986), International Commercial Arbitration: The Problem of State
Contracts (Singapore, Longman 1990), Law of International Joint Ventures
(Singapore, Longman Singapore, 1992), The International Law on Foreign
Investment (2nd edn Cambridge CUP 2004), The Settlement of Foreign


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Contributors xiii
Investment Disputes (The Hague, Kluwer Law International, 2000) and several
articles on international law, international investment law, criminal law and
other areas.
Stefan Zleptnig is a Research Fellow at British Institute of International and
Comparative Law, London.


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List of Tables, Figures and Boxes
Tables
Table 1: Changes in Domestic Legislation (1991–2005)
Table 2: Increase in BITs by End 1990s (1959–1999)
Table 3: BITs (1990–2004)
Table 4: US BITs with Latin American States
Table 5: Latin American Members of the ICSID Convention
Table 6: Restrictive Measures Adopted 2000–2005
Table 7: Summary of Key Rights and Obligations of Foreign Investors, Host
States and Home States
Figures
Figure 1: Known Investment Treaty Arbitrations (cumulative and newly instituted cases, 1987–end 2006)
Figure 2: Disputes by Forum of Arbitration (cumulative as of end 2006)
Figure 3: Main Defendants in State-Investor Cases (as of end 2005)
Figure 4: BITs Most Frequently Invoked in Investment Arbitration (as of end
2005)
Boxes
Box 1:
Box 2:

Box 3:
Box 4:

Addressing Sovereignty Concerns in IIAs—Substantive Provisions
Limiting Access to Arbitration—Scope and Standing
Limiting Access to Arbitration—Procedural Preconditions
Arbitration Awards—Consistency and predictability


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List of Abbreviations
AFSS
AGOA
AIM

AMS
ANC
ANCOM
AoA
APEC
ASEAN
Bafin
BEE
BIS
BITs
CESCR
CESR
CFTC
CNBV
CODESA
COSO
DSU
EC
ECB
ECHR
ECJ
ECJ
ECtHR
ESC Rights
EU
FAO
FDI
FRRP
FSA
FSAP

FSSA
FTA

Assessment of Financial Sector Standards
Africa Growth and Opportunity Act
Alternative Investment Market
Aggregate Measure of Support
African National Congress
Andeans Community
Agreement on Agriculture
Asia Pacific Economic Cooperation
Association of South Eastern Asian Nations
Bundesanstalt fur Finanzdienstleistungsaufsicht
Black Economic Empowerment
Bank for International Settlements
Bilateral investment treaties
United Nations Committee on Economic, Social and Cultural
Rights
Committee on European Securities Regulators
Commodities and Futures Trading Commission
National Banking and Securities Commission
Convention for a Democratic South Africa
Committee of Sponsoring Organizations of the Treadway
Commission
WTO Dispute Settlement Understanding
European Community
European Central Bank
European Convention for the Protection of Human Rights
and Fundamental Freedoms
European Court of Justice

European Court of Justice
European Court of Human Rights
Economic, Social and Cultural Rights
European Union
Food and Agriculture Organization of the United Nations
Foreign Direct Investment
Financial Reporting Review Panel
Financial Services Authority
Financial Sector Assessment Program
Financial System Stability Assessment
Free Trade Agreement


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xviii List of Abbreviations
FTAA
GAAP
GATS
GATT
GDP
GPA
IATP
ICC

ICC
ICCANN
ICCPR
ICESCR
ICSID
IFRS
IIAs
IISD
ILM
ILO
IMF
IOSCO
MAI
MERCORSUR
MFN
MIGA
MTN
NAFTA
NFIDCs
NGOs
NIEO
NP
NYSE
OECD
OHCHR
PPPs
PTIAs
QIS
ROSC
RTAs

SACU
SAPs
SCC
SDT
SEC

Free Trade Agreement of the Americas
Generally Accepted Accounting Principles
General Agreement on Trade in Services
General Agreement on Tariffs and Trade
Gross domestic product
Agreement on Government Procurement
Institute for Agriculture and Trade Policy
International Chamber of Commerce
International Criminal Court
Internet Corporation for Assigned Names and Numbers
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural
Rights
International Centre for the Settlement of Investment Disputes
International Financial Reporting Standards
international investment agreements
International Institute for Sustainable Development
International Legal Materials
International Labour Organization
International Monetary Fund
International Organisation of Securities Commissioners
Multilateral Agreement on Investment
Common Market of the South
most favoured nation (treatment)

Multilateral Investment Guarantee Agency
Medium Term Note
North America Free Trade Agreement
Net Food-Importing Developing Countries
non-governmental organisations
New International Economic Order
(South African) National Party
New York Stock Exchange
Organisation for Economic Cooperation and Development
Office of the High Commissioner for Human Rights
public-private partnerships
preferential trade and investment agreements
Quantitative Impact studies
Report on Observance of Standards and Codes
Regional Trade Agreements
South African Customs Union
Structural Adjustment Programmes
Stockholm Chamber of Commerce
Special and Differential Treatment
Securities and Exchange Commission


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List of Abbreviations xix
SPS
SPs
SPS
SSG
SSM
TBT
TCE
TNCs
TRIPs
TRQ
UDHR
UN
UNCITRAL
UNCTAD
UNDP
UNESCO
UNGA
US
USTR
VCLT
WHO
WIPO
WTO

Sanitary and Phytosanitary Measures
Special Products
Agreement on the Application of Sanitary and Phytosanitary
Measures
Special Safeguard Mechanism

Special Safeguard Mechanism (for Developing Countries)
Technical Barriers to Trade
Treaty Establishing a Constitution for Europe
Transnational Corporations
Trade-Related Aspects of Intellectual Property Rights
Tariff Rate Quota
Universal Declaration of Human Rights
United Nations
United Nations Commission on International Trade Law
United Nations Conference on Trade and Development
United Nations Development Programme
United Nations Scientific and Cultural Organization
United Nations General Assembly
United States
United States Trade Representative
Vienna Convention on the Law of Treaties
World Health Organization
World Intellectual Property Organization
World Trade Organization


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Table of Cases
Argentina
Jose Cartellone Construcciones Civiles SA v Hidroelectrica
Norpatagonica SA...........................................................................268, 289

European Union
Bosphorus Hava Yollari Turizm Ticaret AS v Minister for
Transport, Energy and Communications, Ireland,
Case C–84/95; [1996] ECR I–3953 (ECJ) ...................................................31
Bosphorus v Ireland, App No 45036/98, 30 Jun 2005 (ECtHR) ...........31, 48, 49
Commission v Denmark, Case 302/86; [1988] ECR 4607 .............................177
Commission v Germany, Case 178/84; [1987] ECR 1227 (ECJ) ....................176
Danish Bottles case see Commission v Denmark
de Peijper, Case 104/75; [1976] ECR 613 (ECJ)............................................176
Familiapress, Case C–368/95; [1997] I–3689 (ECJ) ......................................176
Fiamm and Another v Council of the European Communities
and Another (Spain intervening) [2006] 2 CMLR (ECJ).............................55
German Beer case see Commission v Germany, Case 178/84
Hauer, Case 44/79; [1979] ECR 3727 ..........................................................177
Hauptzollamt Mainz v CA Kupferberg & Cie KG a.A., Case 104/81;
[1982] ECR 3641 (ECJ).............................................................................55
Kadi v Council and Commission, Case T–315/01;

CMLR 1334 (CFI) .........................................................................31, 49, 55
Opel Austria GmbH v EU Council (Austria and EC Commission
intervening), Case T–115/94; [1997] 1 CMLR 733 (ECJ)............................54
Pfizer, Case T–13/99; [2002] ECR II–3305 ...................................................177
Rewe (Cassis de Dijon), Case 120/78; [1979] ECR 649 (ECJ) .......................176
Schindler [1994], Case C–275/92; [1994] ECR I–1039 (ECJ).........................176
Schmitt, Case C–240/95 [1996] ECR I–3179 ................................................175
Seco, Joined Cases 62 and 63/81; [1982] ECR 223........................................175
Stoke-on-Trent, Case C–169/91; [1992] ECR I–6625 ............................176, 177
Yusuf v Council and Commission [2005], Case T–306/01;
CMLR 1334 (CFI) .........................................................................31, 49, 55
Zenatti, Case C–67/98; [1999] ECR I–07289................................................177


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xxii Table of Cases
India
State of Kerala v NM Thomas, AIR 1976 SC 490 (SC).................................441

Republic of South Africa
Certification of the Amended Text of the Constitution of the
Republic of South Africa, In rte (1996) (2) SA 97 (4 Dec) .........................435
Certification of the Constitution of the Republic of South Africa,

In re (1996) (4) SA 744 (6 Sept)................................................................435
Minister of Finance v Van Heerden 2004 (6) SA 121
(Constitutional Court of South Africa) ...................................................441

United Kingdom
Hedley Byrne & Co v Heller & Partners Limited [1964] AC 465 (HL) .........317
Shayler v R [2002] 2 WLR 754 (HL)............................................................176

United States of America
Allied Bank Int’l v Banco Credito Agricola, 566 F Supp 1440
(S.D.N.Y., 1983) ......................................................................................70
Canal Zone v Scott, 502 F.2d 566 (5th Cir 1974)..........................................151
US v Hyde, 37 F.3d 116 (3rd Cir 1994) ........................................................151

Venezuela
Exploration Round case, Decision of 17 Aug 1999
(Supreme Ct, Venezuela) .................................................................295, 296
MINCA case see Minera Las Cristinas CA (MINCA) v Corporacion
Venezuelana de Guyana (CVG)
Minera Las Cristinas CA (MINCA) v Corporacion Venezuelana
de Guyana (CVG), 15 Jul 2004 (Supreme Ct) ............................281, 295, 297

International
Aguas del Tunari S.A. v Bolivia, Decision on Respondent’s
Objections to Jurisdiction, 21 October 2005 ICSID Case
No ARB/02/3 ..................................................................................211, 231


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Table of Cases xxiii
Amco Asia Corporation v Republic of Indonesia (Amoco v Indonesia),
Decision on Jurisdiction 25 Sept 1983, (1983) 1 ICSID Rep 389.........220, 222
American Manufacturing and Trading Inc v Zaire, ICSID Case
No ARB/93/1, Award 21 Feb 1997, (1997) 15 ICSID Rep 14 .....................210
Asian Agricultural Products Ltd v Sri Lanka, ICSID Case
No ARB/87/3, Final Award of 27 Jun 1990.......................................204, 210
Case Concerning Elettronica Sicula SpA (ELSI) (United States v Italy)
(Merits), [1989] ICJ Rep 15.....................................................................221
Ceskoslovenska Obchodni Banka AS v Slovak Republic, Case
No ARB/97/4, Decision of the Tribunal on the Objections to
Jurisdiction of 24 May 1999, (2000) 14 ICSID Rev–Foreign Inv LJ 251.....290
Ceskoslovenska Obchodni Banka AS v The Slovak Republic,
ICSID Case No ARB/97/4, Decision on the Further and Partial
Objection to Jurisdiction (1 Dec 2000) ....................................................258
CME Czech Republic v Czech Republic, UNCITRAL, Partial
Award of 13 Sept 2001.....................................................................233, 237
CMS Gas Transmission Co v Republic of Argentina,
Decision on Objections to Jurisdiction, ICSID
ARB/01/8, (2003) 42 ILM 788.......................................73, 268, 285, 286, 287
Compañia del Desarrollo de Santa Elena SA v Republic of
Costa Rica, ICSID Case No ARB/96/1, Award of 17 Feb 2000
(and Rectification of Award of 8 Jun 2000), (2000) 15 ICSID
Rev–FILJ 169 .........................................................................................212

Customs Régime between Germany and Austria (Protocol of
19 March 1931) (Advisory Opinion) PCIJ Rep Series A/B. No 41 .........78, 79
Czech Republic v CME Czech Republic, (2003) 42 ILM 919 (CA) ........233, 237
Case Concerning the Arrest Warrant of 11 April 2000 (Democratic
Republic of Congo v Belgium), (2002) 41 ILM 536 (ICJ),
14 Feb 2002................................................................................................4
Emilio Agustin Maffezini v Kingdom of Spain, Case No ARB/97/7,
Decision on Objections to Jurisdiction of 25 Jan 2000, (2002)16
ICSID Rev–FILJ 212: (2002) 5 ICSID Rep 396; (2003) 124 ILR 9 .......213, 265
Emilio Agustin Maffezini v Kingdom of Spain, ICSID Case
No ARB/97/7, Award of 13 Nov 2000; Rectification of Award of
31 Jan 2001 ............................................................................................236
Ethyl Corporation v The Government of Canada, UNCITRAL,
Award on Jurisdiction of 24 Jun 1998, (1998) 37 ILM 1378...............214, 235
Fedax NV v Venezuela (Bolivarian Republic of), ICSID Case
No ARB/96/3, Decision on Jurisdiction 11 Jul 1997 .................................211
GATT, Canada: Measures Affecting Exports of Unprocessed
Herring and Salmon—Report of the Panel (22 March 1988)
L/6268-35S/98.........................................................................................182
GATT, Thailand: Restrictions on Importation and Internal Taxes on
Cigarettes—Report of the Panel (7 November 1990) DS10/R-37S/200 ......180


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Gruslin (Philippe) v Malaysia, ICSID Case No ARB/99/3, Final Award
27 November 2000, (2002) 5 ICSID Rep 484 ............................................215
Island of Palmas Case (Netherlands v USA) (1928) 2 RIAA 829 .....................77
Lance Paul Larsen v Kingdom of Hawaii (2001) (Perm. Ct. Arb) .................150
Lanco International Inc. v Argentine Republic, Case ARB/97/6, Preliminary
Decision on Jurisdiction of 8 Dec 1998, 40 ILM 457 (2001)...............285, 286
Lauder/CME cases see CME Czech Republic v Czech Republic; Czech
Republic v CME Czech Republic; Ronald S Lauder v Czech Republic
Legality of Threat or Use of Nuclear Weapons (Advisory Opinion)
[1996] ICJ Rep 226............................................................................78, 209
LG&E v Argentina, ICSID Case No ARB/02/1, Decision on
Liability of 3 Oct 2006.....................................................................203, 215
Loewen Group Inc and Raymond L Loewen v United States of
America, ICSID Case No ARB (AF)/98/3, (NAFTA) Award
of 26 Jun 2003, (2003) 42 ILM 811 ...................................................216, 235
Marvin Roy Feldman v The United Mexican States, ICSID
Case No ARB/(AF)99/1, Award on Merits of 16 Dec 2002 .......................236
MBV v Resil ..............................................................................................292
Metalclad Corporation v United Mexican States, ICSID Case
No ARB (AF)/97/1, Award of 30 Aug 2000, (2001) 16 ICSID
Rev–FILJ 168...........................................................................212, 235, 310
Methanex v United States of America, UNCITRAL
(NAFTA) Award of 3 Aug 2005, (2005)
44 ILM 1345 ..............................................................212, 213, 214, 236, 442
Mondev International Ltd v United States of America,
ICSID Case No ARB (AF)/99/2 (NAFTA), Award of
11 Oct 2002, (2004) 6 ICSID Rep 192 ......................................................217
MTD Equity Sdn Bhd & MTD Chile SA v Chile, ICSID

Case ARB/01/7, Award of 25 May 2004 ..................................................235
Neer claim (United States v Mexico) (1926) 4 RIIA 60..........................217, 218
Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States), [1986] ICJ Rep 14 .........................................78
Plama Consortium Limited v Bulgaria, ICSID Case
No ARB/03/24, Decision on Jurisdiction of 8 Feb 2005,
(2005) 20 ICSID Rev–FILJ 262; (2005) 44 ILM 721 ...........................236, 265
Pope & Talbot Inc v Canada, Interim Award, 26 Jun 2000..........................310
Pope & Talbot Inc v Canada, UNCITRAL (NAFTA) Award
of 10 Apr 2001 13, (2001) 13 World Trade & Arb Mat’l 61 .......216, 217, 299
Ronald S Lauder v Czech Republic, UNCITRAL, Final Award
of 3 Sept 2001..................................................................................233, 237
Salini Costruttori SpA and Italstrade SpA v Hashemite Kingdom
of Jordan, Case No ARB/02/13, Decision of the Tribunal on
Jurisdiction of 29 Nov 2004, (2005) 20 ICSID Rev–FILJ 148;
(2005) 44 ILM 569 ...........................................................................236, 265