Abstract
This chapter examines clauses in investment treaties that enable foreign investors to bring claims against States for compensation when investments have suffered damage due to acts of war or civil unrest. The authors examine these so-called war clauses through the prism of the bilateral investment treaties of three States with histories of armed conflict: Libya, Syria and Yemen. They find that war clauses display a striking diversity in the degree and type of protection offered. The authors also analyse the limited number of arbitral awards in which tribunals have interpreted and applied war clauses. They find that when tribunals do apply war clauses, there is a high risk that the arbitrators misapply such clauses or conflate them with other substantive standards. The authors argue that war clauses should not be seen as replacing other investment protection standards in the context of war or civil unrest. They are distinct standards that provide investors with additional protection where host States claim that they were unable to protect investments due to the exigencies of war or military necessity. War clauses also are relatively robust standards, as they are less vulnerable than other investment protection standards to defences based on a State’s alleged inability to provide protection, essential security clauses, a state of necessity or other circumstances precluding wrongfulness under the customary international law on State responsibility. Relatively common but often overlooked, war clauses are likely to take a more prominent place in investor-State arbitration in the coming years given the unfortunate number of armed conflicts that affect States parties to bilateral investment treaties today.
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Notes
- 1.
- 2.
The two key cases relating to armed conflict and civil disturbance are Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990); and American Manufacturing & Trading, Inc (AMT) v Republic of Zaire, ICSID Case No. ARB/93/1, Award (21 February 1997). See also LESI SpA and Astaldi SpA v Republic of Algeria, ICSID Case No. ARB/05/3, Award (12 November 2008); and Pantechniki SA Contractors & Engineers v Republic of Albania, ICSID Case No. ARB/07/21, Award (30 July 2009). See further cases relating to land rights uprisings and other forms of civil unrest, for instance Bernhard von Pezold and others v Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award (28 July 2015); Bernardus Henricus Funnekotter and others v Republic of Zimbabwe, ICSID Case No. ARB/05/6, Award (22 April 2009); Joseph Houben v Republic of Burundi, ICSID Case No. ARB/13/7, Award (12 January 2016).
- 3.
See for instance the following articles by the publication International Arbitration Reporter (IAReporter): As Libya begins to see wave of investment treaty arbitrations, at least seven Turkish BIT claims are pursued at ICC. IAReporter, 31 March 2017 (ICC here denoting the Court of Arbitration of the International Chamber of Commerce); Libya investment treaty claims: another claim surfaces and another tribunal is finalized. IAReporter, 29 June 2017; Syria held liable for investment treaty breach after authorities seized bank guarantee for a project that was derailed by conflict and sanctions. IAReporter, 1 February 2016; Syria faces another BIT Arbitration, with tribunal in place and claim proceeding. IAReporter, 5 July 2017; Yemen’s security situation warrants termination of production sharing agreements, but ICC tribunal draws adverse inferences against the State for failing to produce documents related to terrorism. IAReporter, 6 July 2016; Analysis: in Yemen decision, tribunal situates its reasoning on narrow jurisdictional clause within context of other prior cases under Chinese and Russian treaties. IAReporter, 7 June 2017.
- 4.
Diplomatic protection has been defined by the International Law Commission (ILC) as the invocation by a State “of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility” (Article 1 of the ILC Draft Articles on Diplomatic Protection (2006).
- 5.
Spoerri (2012), p. 1128.
- 6.
Henckaerts and Doswald-Beck (2005), Rules 7 and 15. This chapter relies for short hand on customary IHL norms as represented in the International Committee of the Red Cross 2005 study. The focus on customary IHL arises out of the empirical context in which this contribution is situated, namely three non-international armed conflicts with significant involvement of non-State actors (Libya, Syria and Yemen). In these conflicts, many relevant alleged breaches of IHL are attributable to non-State actors. War clauses have arguably sprung from a historical context where an important component was loss caused by conduct of rebels and insurgents, who lack the capacity to consent to conventional IHL. For the purposes of this chapter, the authors take no position on whether or not the widespread ratification of the Geneva Conventions and Additional Protocols have transformed these conventional norms into custom, but note the strict requirements posed by international law for the formation of custom. For completeness’ sake, where conflict is international, a number of provisions of for instance Convention (IV) Respecting the Laws and Customs of War on Land (GC IV) and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, Protocol I, 8 June 1977 (AP I) may be relevant. The authors wish to draw the reader’s attention to inter alia Articles 33 and 53 of the GC IV; and Articles 51, 57 and 91 of the AP I.
- 7.
Henckaerts and Doswald-Beck (2005), Rules 7, 11, 14, 15 and 22.
- 8.
Henckaerts and Doswald-Beck (2005), Rule 52.
- 9.
See Brilmeyer and Chepiga (2008), pp. 427–432.
- 10.
See Prosecutor v Dusko Tadić, International Criminal Tribunal for Former Yugoslavia, Decision on the Defence Motion for Interlocutory Appeal (2 October 1995), IT-94-1, para. 70.
- 11.
See Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), para. 82 (where Sri Lankan forces sought to defend military action against a site operated by a foreign investor by asserting that it was used as a base of operations for the Tamil Tiger rebel forces). See also Mayorga (2013), p. 1.
- 12.
Henckaerts and Doswald-Beck (2005), Rule 10.
- 13.
Henckaerts and Doswald-Beck (2005), p. 29.
- 14.
See Convention (IV) respecting the Laws and Customs of War on Land (The Hague, 18 October 1907) (1907 Hague Convention), Article 3 (which is seen as a codification of customary international law); Henckaerts and Doswald-Beck (2005), p. 537. See also Brilmeyer and Chepiga (2008), pp. 414–416 (noting however the establishment of compensation commissions in relation to specific conflicts); Mayorga (2013), p. 1.
- 15.
Political risk insurance is a type of financial protection which investors may purchase to protect against the possibility that a State will cause or contribute to expropriation of an asset or investment (e.g., government confiscation of property), harm done to the investment due to political violence (e.g., acts of civil unrest or insurrection which are not properly controlled), the inability to convert local currency and repatriate it, sovereign debt default or acts of terrorism and war.
- 16.
Williams (1993), pp. 96 and 98.
- 17.
See further Rubins and Kinsella (2005), pp. 83–97. Also, some States view insurance as a secondary means to mitigate political risk and instead see BITs as the main mechanism to protect their nationals’ investments in developing and transition countries, see Rubins and Kinsella (2005), p. 95 (relating the views of the German government). A claimant that receives compensation from a political risk insurance policy may still be able to pursue its full claim against the host State for liability for breaches under a BIT, see Hochtief AG v Argentine Republic, ICSID Case No. ARB/07/31, Decision on Liability (29 December 2014), paras 185–186 and 309. However, many BITs contain subrogation clauses, avoiding double compensation where the insurance provider steps into the claimant’s rights.
- 18.
See Overseas Private Investment Corporation website, available at: https://www.opic.gov/doing-business-us/OPIC-policies/where-we-operate.
- 19.
See Export Credits Guarantee Department (a.k.a. UK Export Finance) website, available at: https://www.gov.uk/guidance/country-cover-policy-and-indicators.
- 20.
War clauses have been part of BITs throughout the history of such instruments. The 1959 Germany-Pakistan BIT—the very first BIT—contained a non-discrimination war clause in its Article 3(3). See Sect. 2.1 below for definition of and discussion regarding non-discrimination war clauses.
- 21.
See Saluka Investments BV v Czech Republic, UNCITRAL, Partial Award (17 March 2006), para. 483; Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal SA v Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability (30 July 2010), para. 165.
- 22.
See Article 6(2) of the Libya-Switzerland BIT.
- 23.
See for instance Article 7(1) of the Syria-Azerbaijan BIT; Article 4(1) of the Libya-Korea BIT.
- 24.
See Article 3(4) of the Syria-Pakistan BIT.
- 25.
See for instance Article 5(1) of the Libya-Belarus BIT; Article 4(1) of the Yemen-Czech Republic BIT.
- 26.
See Articles 14 and 17 of the International Law Commission (ILC) Draft Articles on Diplomatic Protection, UN Doc. A/61/10 (2006); see also Commentary to Article 17, para. 3.
- 27.
As per UNCTAD Investment Hub, available at: http://investmentpolicyhub.unctad.org/IIA.
- 28.
Counting the Libya-Syria and Syria-Yemen BITs only once each.
- 29.
See table of BITs in the Annex to this chapter.
- 30.
EDF International SA et al v Argentine Republic, ICSID Case No. ARB/03/23, Award (11 June 2012), paras 1158–1159; El Paso Energy International Company v Argentine Republic, ICSID Case No. ARB/03/15, Award (31 October 2011), para. 559.
- 31.
See Upton case (1903–1905) IX RIAA 234, p. 236; Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), Diss. Op. Asante (1991) ICSID Review 6:574–597, Section IV.
- 32.
Impregilo SpA v Argentine Republic, ICSID Case No. ARB/07/17, Award (21 June 2011), paras 341–343 (a war clause “applies to measures adopted in response to a loss, not to measures that cause a loss”); Sempra Energy International v Argentine Republic, ICSID Case No. ARB/02/16, Award (28 September 2007), para. 362; Enron Corporation and Ponderosa Assets, LP v Argentine Republic, ICSID Case No. ARB/01/3, Award (22 May 2007), para. 320; Total SA v Argentine Republic, ICSID Case No. ARB/04/01, Decision on Liability (27 December 2010), para. 229. (Some of the cited cases were annulled but on different grounds.)
- 33.
American Manufacturing & Trading, Inc (AMT) v Republic of Zaire, ICSID Case No. ARB/93/1, Award (21 February 1997), para. 6.13 (finding no need for “the Tribunal enquiring as to the identity of the author of the acts of violence committed on the Zairian territory. It is of little or no consequence whether it be a member of the Zairian armed forces or any burglar whatsoever.”).
- 34.
See for instance Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), para. 85(d), where the tribunal found that neither party had provided convincing evidence about the circumstances under which the destruction of the premises took place after they came under the control of the governmental forces, about who was responsible for the effective destruction of the premises or on how that destruction was committed.
- 35.
For instance in terms of proving that the State was in sufficient control of an area to be able to take measures to prevent harm from occurring; see below in relation to force majeure.
- 36.
LG&E Energy Corp et al v Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability (3 October 2006), para. 244.
- 37.
CMS Gas Transmission Company v Argentine Republic, ICSID Case No. ARB/01/8, Award (12 May 2005), para. 376.
- 38.
See for instance Firms awaiting Libya loss compensation. China Daily, 5 April 2012 (citing a diplomat of Libya to China stating that the Libyan government had formed technical committees to study the damage to projects and facilities and that Chinese companies would not experience “bottlenecks”).
- 39.
Article III(3) of the Yemen-Turkey BIT; Article 5 of the Libya-Turkey BIT. See also Article 5 of the Syria-China BIT (the host State “takes relevant measures”); Article 3(4) of the Syria-Pakistan BIT (measures “in respect to retrieval of [investors’] assets or compensation for the damages or any other compensations”).
- 40.
See the interpretation of this type of provision in LESI SpA and Astaldi SpA v Republic of Algeria, ICSID Case No. ARB/05/3, Award (12 November 2008), paras 180–181 (assessing whether the security measures taken by the State in relation to the claimant were equal to those taken in relation to national and third State investors).
- 41.
Article 4 of the Syria-Belarus BIT (affording treatment “no less favourable than that which the latter Contracting Party accords to its own investors”); Article 3(4) of the Syria-Jordan BIT; Article 3(4) of the Syria-Pakistan BIT. See also the Syria-China BIT, which offers fair and equitable treatment (FET) and protection in relation to any “relevant measures” taken with respect to war damage. A protocol to the treaty supplements the FET provision of the treaty by stating that China shall offer MFN treatment and Syria shall offer NT. It is not clear whether this clarification of the FET provision also applies to the FET component of the war clause.
- 42.
Article 7(4) of the Libya-BLEU BIT (affording treatment “at least equal to that which the latter Contracting Party grants to the investors of the most favoured nation”); Article 5 of the Yemen-Ethiopia BIT (affording treatment “no less favorable than that which the [host State] accords to investors of any third State”).
- 43.
Arguably, the explicit exclusion of either NT or MFN treatment in the war clause would override a general NT or MFN clause as lex specialis derogat legi generali.
- 44.
Cf. Factory at Chorzów (Germany v Poland) PCIJ Ser. A No. 17 (13 September 1928), p. 47.
- 45.
See Sornarajah (2010), p. 134.
- 46.
See Upton case (1903–1905) IX RIAA 234, pp. 235–236 (“The right of the State, under the stress of necessity, to appropriate private property for public use is unquestioned, but always with the corresponding obligation to make just compensation to the owner thereof.”)
- 47.
The State may however be under obligation to refrain from certain conduct under other international conventional or customary norms.
- 48.
Article 4(2) of the Libya-Korea BIT; Article 5(3) of the Syria-Slovakia BIT.
- 49.
The widely referenced Hull formula, articulated by US Secretary of State Cornell Hull in his note of 21 July 1938 in response to Mexican nationalisations.
- 50.
American Manufacturing & Trading, Inc (AMT) v Republic of Zaire, ICSID Case No. ARB/93/1, Award (21 February 1997), para. 7.07 (noting that the extended war clause referred to “requisition [sic] of property by ‘the forces’ or ‘the authorities’ of the other Party, an action which can be assimilated to expropriation”). See also the war clause in the Article 4 of the Yemen-Sweden BIT, which is titled “Compensation for losses and expropriation”. Since expropriation in a non-military context is dealt with in Article 5 (titled simply “Expropriation”), this would suggest that the extended war clause in Article 4(1) is considered to contain expropriatory elements.
- 51.
Schreuer (2013), p. 14.
- 52.
American Manufacturing & Trading, Inc (AMT) v Republic of Zaire, ICSID Case No. ARB/93/1, Award (21 February 1997), paras 7.08–7.09. But note the distinction between acts in an individual capacity and acts ultra vires, see Article 7 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001); see also the Caire case (1929) V RIAA 516, p. 531 (the murder of a foreign national was attributable to the State since the perpetrators “acted under cover of their status as officers and used means placed at their disposal on account of that status”); see further Sassòli (2002) pp. 405–406.
- 53.
For example, this includes in Libya the Libyan National Army, the Libya Dawn militia and Islamist groups, including the Islamic State (IS) and Ansar Al-Sharia, an affiliate of Al-Qaeda in the Arabian Peninsula (AQAP); in Syria, the Free Syrian Army, the Al-Nusra Front, the Syrian Democratic Force, Ahrar Al-Sham and IS; and in Yemen, the Houthi movement (at one time, in alliance with forces loyal to the previous government), forces loyal to the internationally recognised government and, finally, Islamist groups including the AQAP.
- 54.
See for instance ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), Article 4 (if formally part of the armed forces under law), Article 8 (if operating under effective control of the armed forces), Article 9 (if exercising authority in the absence of functional regular State organs in a situation of State disintegration), Article 10 (acts during their struggle for power of insurgents that subsequently succeed in establishing themselves as the government of the State) or Article 11 (on the argument that the State endorses and adopts the conduct of individuals as its own).
- 55.
- 56.
See for a striking example Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), paras 60–71.
- 57.
Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), para. 57.
- 58.
The AAPL tribunal acknowledged the principle that the burden of proof is not on “the plaintiff from the procedural standpoint, but the real claimant in view of the issues involved”, see Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), para. 56. The tribunal ultimately endorsed the view that the “international responsibility of the State is not to be presumed” and that a party “alleging a violation of international law giving rise to international responsibility has the burden of proving the assertion”. This view of the carve-out for military necessity forces the claimant to prove a negative and thereby contradicts the basic procedural principle that ei incumbit probatio qui dicit non qui negat (“the burden of proof lies upon him who affirms, not him who denies”). The APPL tribunal was not clear on why the negative fact should be seen as part of the positive assertion of a breach, as opposed to as an exception the applicability of which is to be proven by the respondent.
- 59.
Henckaerts and Doswald-Beck (2005), p. 46 (prohibition of military attack expected to cause incidental loss of civilian life, injury to civilians or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated).
- 60.
Cf. Gujarat State Petroleum Corporation Ltd et al v Republic of Yemen and the Yemeni Ministry of Oil and Minerals, ICC Arbitration No. 19299/MCP, Final Award (10 July 2015), paras 97–102 (where the tribunal drew adverse inferences from Yemen’s failure to produce documents relating to security issues and terrorist activities in Yemen).
- 61.
Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), para. 56. See also Corfu Channel (United KingdomvAlbania), 1949 ICJ 4, p. 18 (allowing inferences of fact and circumstantial evidence where a State’s exclusive territorial control over the territory where events took place prevents the victim of breach of international law from furnishing direct proof).
- 62.
See Commentary to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (ICRC 1958), p. 302 (commenting on the wording of Article 53 of GC IV, which is similar to that used in extended war clauses, albeit that Article 53 only applies in occupied territory in international armed conflict).
- 63.
See US–Nicaraguan Trade, GATT Panel Report, GATT Doc. L/6053 (13 October 1986) (unadopted), paras 5.2–5.3 (accepting that the GATT panel was precluded from examining the validity of and motivation for the invocation of the GATT’s national security exception). This issue has gained renewed attention with Russia–Traffic in Transit, WTO Case No. DS512 (panel report expected end of 2018), where Russia invoked the security exception in GATT Article XXI. See the discussion of the issue contained in the United States’ third party submissions (confirming the view that once a member has invoked the security exception, a panel must accept that the exception applies and consequently cannot reach an “antecedent finding” that the measure flowing from the alleged security issue is inconsistent with a WTO covered agreement).
- 64.
See CMS Gas Transmission Company v Argentine Republic, ICSID Case No. ARB/01/8, Award (12 May 2005), para. 373 (rejecting that the host State’s assessment of its essential security interests was beyond the tribunal’s jurisdiction).
- 65.
See below in Sect. 3.3. The issue is complicated by the fact that information relevant to determine the existence of military necessity may be classified for national security reasons and by the concerns one may arguably harbour about arbitrators’ ability accurately to assess whether action was in fact warranted by military necessity.
- 66.
See further Mayorga (2013) (arguing that the law of armed conflict strikes a more appropriate balance between military necessity and the mitigation of effects for civilians, including foreign investors).
- 67.
Schreuer (2013), p. 14 (“The duty to make restitution or pay compensation in the case of requisitioning of the investment or part thereof is independent of military necessity.”). In light of this, it is interesting to note that the extended war clause in the Article 6(2) of the Syria-Greece BIT, covers acts of “requisitioning” but not “destruction”.
- 68.
Cf. the text of the Italian language version: “Qualora gli investitori di una delle Parti Contraenti subiscano perdite o danni nei loro investimenti nel territorio dell’altra Parte Contraente a causa di guerra, altre forme di conflitto armato, stato di emergenza, guerra civile, o altri eventi simili, la Parte Contraente nella quale è stato effettuato l’investimento offrirà un risarcimento adeguato in relazione a detti danni o perdite. Indipendentemente dal fatto che tali perdite o danni siano stati causati da forze governative o altri soggetti, i versamenti relativi ai risarcimenti dovranno essere liberamente trasferibili come previsto all’articolo 8 del presente Accordo. Gli investitori interessati riceveranno lo stesso trattamento previsto per i cittadini dell’altra Parte Contraente e, in ogni caso, un trattamento non meno favorevole di quello accordato agli investitori di Paesi terzi.”
- 69.
Italy has concluded a number of treaties containing this formulation of the war clause, with some language variations, see for instance Article 4 of the Armenia-Italy BIT; Article 4 of the Azerbaijan-Italy BIT; Article 4 of the Bangladesh-Italy BIT.
- 70.
Franceschelli (2013), pp. 147–148.
- 71.
Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), para. 48.
- 72.
Upton case (1903–1905) IX RIAA 234, p. 236.
- 73.
Sambiaggio case (1903) X RIAA 499, p. 521.
- 74.
- 75.
See SS Wimbledon (United Kingdom and othersvGermany) PCIJ Ser. A No. 1 (17 August 1923), p. 25.
- 76.
Cf. Schreuer (2013), p. 20.
- 77.
See for example MTD Equity Sdn. Bhd. and MTD Chile S.A. v Republic of Chile, ICSID Case No. ARB/01/7, Award (25 May 2004), para. 104; Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Award (27 August 2009), paras 153–160.
- 78.
Sergei Paushok et al v Mongolia, UNCITRAL, Award on Jurisdiction and Liability (28 April 2011), para. 570. Of the 57 treaties in this study, 52 contain MFN clauses. See also Pérez-Aznar (2017).
- 79.
See Daimler Financial Services AG v Argentine Republic, ICSID Case No. ARB/05/1, Award (22 August 2012), para. 161.
- 80.
See for instance EDF International SA et al v Argentine Republic, ICSID Case No. ARB/03/23, Award (11 June 2012), paras 932 and 934.
- 81.
See Saluka Investments BV v Czech Republic, UNCITRAL, Partial Award (17 March 2006), para. 483; Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal SA v Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability (30 July 2010), para. 165.
- 82.
Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), para. 70 and see further Diss. Op. Asante (1991) ICSID Review 6:574–597 (criticising the majority on this point).
- 83.
It is not clear why the tribunal opted for this technique. It may have resulted from the claimant’s argument that the FPS clause prescribed strict liability for the host State (which the tribunal rejected), see Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), paras 26(a) and 52 (holding that the war clause would be redundant if the FPS clause entailed strict liability).
- 84.
American Manufacturing & Trading, Inc (AMT) v Republic of Zaire, ICSID Case No. ARB/93/1, Award (21 February 1997), para. 6.14.
- 85.
American Manufacturing & Trading, Inc (AMT) v Republic of Zaire, ICSID Case No. ARB/93/1, Award (21 February 1997), para. 6.08.
- 86.
American Manufacturing & Trading, Inc (AMT) v Republic of Zaire, ICSID Case No. ARB/93/1, Award (21 February 1997), paras 6.12–6.13 (internal quotation marks omitted).
- 87.
See Article IV(1) of the United States-Zaire BIT (using standard language of a non-discrimination war clause).
- 88.
American Manufacturing & Trading, Inc (AMT) v Republic of Zaire, ICSID Case No. ARB/93/1, Award (21 February 1997), paras 6.09–6.11.
- 89.
Pantechniki SA Contractors & Engineers v Republic of Albania, ICSID Case No. ARB/07/21, Award (30 July 2009), paras 75 and 89.
- 90.
Pantechniki SA Contractors & Engineers v Republic of Albania, ICSID Case No. ARB/07/21, Award (30 July 2009), paras 85–89.
- 91.
See LESI SpA and Astaldi SpA v Republic of Algeria, ICSID Case No. ARB/05/3, Award (12 November 2008), paras 174–175 (derogation from FPS); see also (arguably) Bernhard von Pezold and others v Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award (28 July 2015), paras 592 and 598. See further Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990) Diss. Op. Asante (1991) ICSID Review 6:574–597, pp. 582, 584, 588–591.
- 92.
CMS Gas Transmission Company v Argentine Republic, ICSID Case No. ARB/01/8, Award (12 May 2005), para. 375; Enron Corporation and Ponderosa Assets, LP v Argentine Republic, ICSID Case No. ARB/01/3, Award (22 May 2007), para. 321; Sempra Energy International v Argentine Republic, ICSID Case No. ARB/02/16, Award (28 September 2007), para. 363; Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal SA v Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability (30 July 2010), paras 270–271; Impregilo SpA v Argentine Republic, ICSID Case No. ARB/07/17, Award (21 June 2011), paras 341–343; El Paso Energy International Company v Argentine Republic, ICSID Case No. ARB/03/15, Award (31 October 2011), paras 559–560; Bernardus Henricus Funnekotter and others v Republic of Zimbabwe, ICSID Case No. ARB/05/6, Award (22 April 2009), para. 104. (Some of the cited cases were annulled but on different grounds.)
- 93.
See for an analytical discussion, Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990) Diss. Op. Asante (1991) ICSID Review 6:574–597, pp. 582, 589–590.
- 94.
Bernhard von Pezold and others v Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award (28 July 2015), para. 598.
- 95.
See Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990) Diss. Op. Asante (1991) ICSID Review 6:574–597, p. 591.
- 96.
See Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990) Diss. Op. Asante (1991) ICSID Review 6:574–597, pp. 589–592.
- 97.
See Articles 2(5), 3, 5(1), 7 and Annex items (d) and (l). ILC Draft Articles on the Effects of Armed Conflict on Treaties, UN Doc. A/66/10 (2011).
- 98.
Schreuer (2013), p. 5.
- 99.
See Article 10 of the Syria-Germany BIT; Article 10 of the Yemen-BLEU; Article 10 of the Yemen-Germany; Article XI of the Yemen-Italy.
- 100.
See for instance Pantechniki SA Contractors & Engineers v Republic of Albania, ICSID Case No. ARB/07/21, Award (30 July 2009), paras 77–82 (applying an element of proportionality to the State’s obligation to provide FPS in a situation where the authorities were overwhelmed by the magnitude of social unrest). See also Ampal-American Israel Corp et al v Arab Republic of Egypt, ICSID Case No. ARB/12/11, Decision on Liability and Heads of Loss (21 February 2017), paras 290 and 284 (finding Egypt in breach of its due diligence obligation to provide FPS to the investment, while acknowledging the difficult circumstances in the wake of the Arab Spring, where armed militant groups had taken advantage of the “political instability, security deterioration and general lawlessness that ensued in the North Sinai” to perpetrate attacks on the investor’s pipeline).
- 101.
For instance, under US law, a “riot” is defined as a public disturbance involving acts of violence by a minimum of only three people, see 18 USC § 2102. Under UK law, a “riot” is defined as a group of 12 or more people engaged in or threatening unlawful violence, see Public Order Act 1986 (UK), Section 1.
- 102.
See for instance Article 7(4) of the Libya-BLEU BIT; Article 6(2) of the Libya-Switzerland BIT; Article 3(4) of the Syria-Jordan BIT; Article 3(4) of the Syria-Pakistan BIT; Article IV(3) of the Syria-Turkey BIT; Article 4(3)–4(4) of the Yemen-Germany BIT; Article III(3) of the Yemen-Turkey BIT.
- 103.
Article 3(2) of the Yemen-Jordan BIT.
- 104.
Total SA v Argentine Republic, ICSID Case No. ARB/04/01, Decision on Liability (27 December 2010), para. 229.
- 105.
See for instance Article 12(2) of the Libya-India BIT.
- 106.
Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal SA v Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability (30 July 2010), para. 270; Total SA v Argentine Republic, ICSID Case No. ARB/04/01, Decision on Liability (27 December 2010), para. 230; see also BG Group Plc v Argentine Republic, UNCITRAL, Final Award (24 December 2007), para. 382 (“Liability and compensation are thus expressly mandated, not excused.”)
- 107.
Total SA v Argentine Republic, ICSID Case No. ARB/04/01, Decision on Liability (27 December 2010), para. 230; CMS Gas Transmission Company v Argentine Republic, ICSID Case No. ARB/01/8, Award (12 May 2005), para. 375; Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal SA v Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability (30 July 2010), para. 270; see also El Paso Energy International Company v Argentine Republic, ICSID Case No. ARB/03/15, Award (31 October 2011), para. 559.
- 108.
Salacuse (2015), p. 369.
- 109.
On lex specialis as a technique for resolving problems of interpretation and application, see for instance Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law. Report of the ILC Study Group, finalised by Martti Koskenniemi, UN Doc. A/CN.4/L.682 (13 April 2006), paras 88–107.
- 110.
In this context, the obligation of FPS amounts to an obligation to employ civilian police powers, military force or other controls within the powers of the State to subdue foreseeable violence against the investment either from third parties or from the State itself. Arbitral practice is divided on whether or not FPS applies also in relation to acts by State agents, but see for instance Biwater Gauff Ltd v United Republic of Tanzania, ICSID Case No. ARB/05/22, Award (24 July 2008), para. 730 (finding that FPS “extends to actions by organs and representatives of the State itself”); Frontier Petroleum v Czech Republic, UNCITRAL, Final Award (12 November 2010), para. 261.
- 111.
See for instance Mayorga (2013), pp. 6–7 (advancing an argument based in systemic integration and normative conflict that military necessity under the law of armed conflict is a permissible defence against allegations of a failure to provide FPS to investments under a BIT).
- 112.
Pantechniki SA Contractors & Engineers v Republic of Albania, ICSID Case No. ARB/07/21, Award (30 July 2009), paras 77–82; British Property in Spanish Morocco (1925) II RIAA 615, p. 643 (requiring for culpability that the State is in a position to protect foreign property). See also Sornarajah (2010), p. 135 (arguing that “the standards that could be maintained in an ordered society cannot be maintained in a State that is constantly faced with civil disorder”).
- 113.
Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), para. 77; American Manufacturing & Trading, Inc (AMT) v Republic of Zaire, ICSID Case No. ARB/93/1, Award (21 February 1997), paras 6.05–6.06; Rumeli Telekom AS et al v Republic of Kazakhstan, ICSID Case No. ARB/05/16, Award (29 July 2008), para. 668.
- 114.
American Manufacturing & Trading, Inc (AMT) v Republic of Zaire, ICSID Case No. ARB/93/1, Award (21 February 1997), para. 6.08; Bernhard von Pezold and others v Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award (28 July 2015), para. 597.
- 115.
See further in Sect. 4.
- 116.
Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), para. 85(d) (Sri Lankan authorities should have tried “to get peacefully all suspected persons out of Serendib’s farm before launching the attack”) and para. 85(b) (“the failure to resort to such precautionary measures acquires more significance when taking into consideration that such measures fall within the normal exercise of governmental inherent powers—as a public authority—entitled to order undesirable persons out from security sensitive areas”). The tribunal found that action of State forces was taken in combat, but did not find sufficient evidence to rule on whether it was warranted by military necessity, Asian Agricultural Products Ltd (AAPL) v Republic of Sri Lanka, ICSID Case No. ARB/87/3, Final Award (27 June 1990), para. 65.
- 117.
See Eastern Sugar BV v Czech Republic, SCC Case No. 088/2004, Partial Award (27 March 2007), para. 203 (the FPS obligation requires the host State “to protect the investor from third parties […] engaged in physical violence against the investor in violation of the State monopoly of physical force”).
- 118.
Hernández (2013), p. 22.
- 119.
Burke-White and von Staden (2008), pp. 321–322.
- 120.
See Article 27(a) of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001); Agius (2009), p. 115.
- 121.
See Article 27(b) of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001).
- 122.
Article 12(2) of the Libya-India BIT; Article 4(2) of the Syria-France BIT; Article 13(2) of the Syria-India BIT; Article 12(2) of the Yemen-India BIT.
- 123.
Article 12 of the Syria-Cyprus BIT; Article 12 of the Libya-Cyprus BIT (the latter referring specifically to obligations imposed by the European Union).
- 124.
Article 3(3) of the Libya-Germany BIT.
- 125.
A possible exception may be found in two treaties, that contain a formulation that possibly may open up for preferential treatment of investors from States within the same customs, economic or monetary union, a common market or a free trade area, see Article 11 of the Syria-Czech Republic BIT; Article 11 of the Yemen-Czech Republic BIT. Many MFN clauses similarly contain a carve-out for preferential treatment of investors if this results from a membership in a free trade area, customs union or similar associations or from international taxation agreements, see for instance Article 3(4) of the Austria-Libya.
- 126.
The conclusion may be similar with respect to a particular case of security-related defence, namely that action was authorised by the United Nations Security Council. States are obligated under Article 25 of the United Nations Charter to carry out decisions of the Security Council and States’ obligations under the United Nations Charter take precedence over their obligations under other international treaties under Article 103 of the Charter. However, it is unlikely that the Security Council would require discriminatory compensation of investors’ losses or wanton destruction of foreign investments beyond what is required by military objectives.
- 127.
ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), Commentary to Article 23, para. 3.
- 128.
This chapter will not go into detail on the stringent conditions for invoking such pleas, but address their availability in relation to war clauses on a more principled level.
- 129.
- 130.
ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), Commentary to Article 21, para. 3.
- 131.
ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), Article 23(2)(b) and Commentary to Article 23, para. 10. See also Active Partners Group Ltd v Republic of South Sudan, PCA Case No. 2013/4, Award (27 January 2016), paras 352–353 and 358–359 (where the tribunal rejected South Sudan’s defence that it had “frustrated” the contract for reasons out of its control, such as civil strife, severe economic conditions and famine, on the basis that the contract foresaw and regulated the obligations of the parties in such conditions).
- 132.
See ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), Commentary to Article 23, para. 7 (citing decisions of mixed claims commissions accepting as force majeure unforeseen attacks by rebels leading to damage to foreigners).
- 133.
See Article 5(1) of the Libya-Austria BIT; Article 6 of the Yemen-Austria BIT (both referring to “acts of God or force majeure”).
- 134.
See ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001), Article 23(2)(a) and Commentary to Article 23, para. 9 (force majeure); Article 25(2)(b) and Commentary to Article 25, para. 20 (necessity). Article 21 refers to the conditions for lawful self-defence under the UN Charter.
- 135.
See CMS Gas Transmission Company v Argentine Republic, ICSID Case No. ARB/01/8, Award (12 May 2005), paras 328–329 (mutatis mutandis; discussion of Article 25 of the Articles on State Responsibility). See also the Naulilaa case (1928) II RIAA 1011, p. 1031 (where the German unjustified incursion into Angola was seen as a proximate cause of a popular uprising for which Germany became liable). Cf. Home Frontier and Foreign Missionary Society of the United Brethren in Christ case (1920) VI RIAA 42, p. 43 (where the US government (unsuccessfully) argued that the revolt that led to violent attacks on American missionary stations was the foreseeable result of the imposition and attempted collection of a “hut tax”; the tribunal found that the tax was a legitimate sovereign policy within the prerogative of the British government and that it could not be foreseen that it would lead to anything “more serious than is usual and inevitable in a semi-barbarous and only partially colonized protectorate”).
- 136.
Article 27 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc. A/56/10 (2001); see also Gabčíkovo-Nagymaros Project (Hungary/Slovakia), 1997 ICJ 7, para. 48; see further CMS Gas Transmission Company v Argentine Republic, ICSID Case No. ARB/01/8, Award (12 May 2005), paras 388 and 392.
- 137.
See Sempra Energy International v Argentine Republic, ICSID Case No. ARB/02/16, Award (28 September 2007), para. 394. See also EDF International S.A., SAUR International S.A. and León Participaciones Argentinas S.A. v Argentine Republic, ICSID Case No. ARB/03/23, Award (11 June 2012), para. 1178; upheld on this point through Decision on Annulment (5 February 2016), para. 330.
- 138.
CMS Gas Transmission Company v Argentine Republic, ICSID Case No. ARB/01/8, Decision of the Ad Hoc Committee on the Application for Annulment of the Argentine Republic (25 September 2007), para. 147.
- 139.
See Pantechniki SA Contractors & Engineers v Republic of Albania, ICSID Case No. ARB/07/21, Award (30 July 2009), para. 81 (citing doctrinal commentary to the effect that “[a]n investor investing in an area with endemic civil strife and poor governance cannot have the same expectation of physical security as one investing in London, New York or Tokyo”); see also Home Frontier and Foreign Missionary Society of the United Brethren in Christ case (1920) VI RIAA 42, p. 44 (holding it “impossible to judge the system of police and protection of life in force in the savage regions of Africa by the standard of... high civilization” and finding that the missionary society must have been aware of the perils to which it exposed itself). See also Toto Costruzioni Generali SpA v Republic of Lebanon, ICSID Case No. ARB/07/12, Award (7 June 2012), paras 200 and 245 (the post-civil war economy and “colossal reconstruction efforts” informed the investor’s expectations as to stability and the claimant should have been aware of the presence of Syrian troops in Lebanon).
- 140.
See American Manufacturing & Trading, Inc (AMT) v Republic of Zaire, ICSID Case No. ARB/93/1, Award (21 February 1997), paras 7.14–7.15; CMS Gas Transmission Company v Argentine Republic, ICSID Case No. ARB/01/8, Award (12 May 2005), para. 356. See further Kriebaum (2011), pp. 399–402.
- 141.
See Active Partners Group Ltd v Republic of South Sudan, PCA Case No. 2013/4, Award (27 January 2016), paras 366–368 (discounting the claimant’s 35% profit margin under the contract, which incorporated a buffer against the risk inherent to the market, to arrive at a “reasonable rate of return” of 25%).
- 142.
Post scriptum: Since this chapter went to press, the authors have received further reports that suggest that a number of the tribunals hearing investment claims brought against Libya take the position that the war clause operated to the conclusion of other BIT obligations, including FPS. Furthermore, an ICC tribunal deciding a case under the Portugal-Libya BIT reportedly avoided to rule on an attempt to import a more favourable war clause on the basis that the claimant in any event had not made out a case under the extended war clause it sought to import. See Tribunal finds that BIT’s war-losses clause does not exclude operation of other BIT protections. IAReporter, 8 January 2019 (reporting on a previously unpublished award from May 2018); Armesto-chaired BIT tribunal sees failure to protect Turkish investment. IAReporter, 3 December 2018.
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Annex: Survey of War Clauses in the BITs of Libya, Syria and Yemen
Annex: Survey of War Clauses in the BITs of Libya, Syria and Yemen
Treaty information | War clauses | Other provisions | |||||||
|---|---|---|---|---|---|---|---|---|---|
BIT | Signed | In force | Language version | Non-discr’n | Extended | Strict liability | MFN | Security | |
1 | Libya-Austria | 18/06/2002 | 01/01/2004 | English | Art 5(1) | Art 5(2) | – | Art 3(3) | – |
2 | Libya-Belarus | 01/11/2000 | 23/02/2002 | English | Art 5(1) | Art 5(2) | – | Arts 3(1) | – |
3 | Libya-BLEU | 05/02/2004 | 08/12/2007 | English | Art 7(4) | – | – | Art 4(2) | – |
Libya-Bulgaria | 19/11/1999 | 19/01/2004 | – | ||||||
4 | Libya-Croatia | 20/12/2002 | 21/06/2006 | English | Art 5(1) | Art 5(2) | – | Art 3(2) | – |
5 | Libya-Cyprus | 30/06/2004 | 12/02/2005 | English | Art 5(1) | Art 5(2) | – | Art 3(1)–(2) | Art 12 |
6 | Libya-Egypt | 03/12/1990 | 04/07/1991 | Arabic | – | – | – | Art 3(1) | – |
7 | Libya-Ethiopia | 27/01/2004 | 25/06/2004 | English | Art 5 | – | – | Art 3(2) | – |
8 | Libya-France | 19/04/2004 | 29/01/2006 | French | Art 5(3) | – | – | Art 4(1) | – |
9 | Libya-Germany | 15/10/2004 | 14/07/2010 | English | Art 4(3)–(4) | – | – | Arts 3(1), 4(4) | Art 3(3) |
10 | Libya-India | 26/05/2007 | 23/03/2009 | English | Art 6 | – | – | Art 4(1)–(2) | Art 12(2) |
Libya-Iran | 27/12/2006 | 05/05/2010 | – | ||||||
11 | Libya-Italy | 13/12/2000 | 20/10/2004 | Italian | Art 4(1) | – | – | Art 3(1) | – |
12 | Libya-Korea | 21/09/2006 | 28/03/2007 | English | Art 4(1) | Art 4(2) | – | Art 3(1)–(2) | – |
13 | Libya-Morocco | 02/11/2000 | 20/10/2001 | Arabic | Art 6 | – | – | Art 3(1)–(2) | Art 2(2) |
14 | Libya-Portugal | 14/06/2003 | 19/06/2005 | English | Art 7 | – | – | 4(1)–4(2) | – |
Libya-Russia | 17/04/2008 | 15/10/2010 | – | ||||||
Libya-Serbia | 18/02/2004 | 29/10/2005 | – | ||||||
15 | Libya-Singapore | 08/04/2009 | 22/12/2011 | English | Art 6 | – | – | Art 4(1) | – |
16 | Libya-Spain | 17/12/2007 | 01/08/2009 | Spanish | Art 6(1) | Art 6(2) | – | Art 4(1)–(2) | – |
17 | Libya-Switzerland | 08/12/2003 | 28/04/2004 | English | Art 6(2) | – | – | Art 4(2)–(3) | – (continued) (continued) |
Libya-Syria | 08/02/1993 | 07/10/1995 | – | ||||||
18 | Libya-Turkey | 25/11/2009 | 22/04/2011 | English | Art 5 | – | – | Art 3(1)–(3) | – |
Syria-Armenia | 17/06/2009 | 04/01/2010 | – | ||||||
19 | Syria-Azerbaijan | 08/07/2009 | 04/01/2010 | English | Art 7(1) | Art 7(2) | – | Art 4(1)–(2) | – |
Syria-Bahrain | 20/09/2000 | 18/12/2001 | – | ||||||
20 | Syria-Belarus | 11/03/1998 | 01/10/1998 | English | Art 4 | – | – | Art 3(1)–(2) | – |
Syria-Bulgaria | 21/05/2000 | 10/11/2001 | – | ||||||
21 | Syria-China | 09/12/1996 | 01/11/2001 | English | Art 5 | – | – | – | – |
22 | Syria-Cyprus | 10/06/2007 | 30/12/2007 | English | Art 6(1)–(2) | Art 6(3) | – | Art 4(1)–(2) | Art 12 |
23 | Syria-Czech Rep. | 21/11/2008 | 14/07/2009 | English | Art 4(1) | Art 4(2) | – | Art 3(1)–(2) | Art 11 |
24 | Syria-Egypt | 28/04/1997 | 05/10/1998 | Arabic | Art 4 | – | – | – | – |
25 | Syria-France | 28/11/1977 | 01/03/1979 | French | – | – | – | Arts 3(1)–(2), 4(1) | Art 4(2) |
26 | Syria-Germany | 02/08/1977 | 20/04/1980 | English | Art 4(3)–4(4) | – | – | Art 3(1)–(2) | – |
27 | Syria-Greece | 23/02/2003 | 27/02/2004 | English | Art 6(1) | Art 6(2) | – | Art 4(1)–(2) | – |
28 | Syria-India | 18/06/2008 | 22/01/2009 | English | Art 6 | – | – | Art 4(1)–(2) | 13(2) |
29 | Syria-Indonesia | 27/06/1997 | 20/02/2000 | English | Art V(1)–(2) | – | – | Art III(2) | – |
Syria-Iran | 05/02/1998 | 16/11/2005 | – | ||||||
30 | Syria-Italy | 20/02/2002 | 13/11/2003 | English | Art 4(1) | – | Art 4(1) | Art 3(1) | – |
31 | Syria-Jordan | 08/10/2001 | 11/05/2002 | English | Art 3(4) | – | – | – | – |
Syria-Kuwait | 16/08/2001 | 23/03/2004 | – | ||||||
32 | Syria-Lebanon | 18/07/2010 | 16/12/2011 | Arabic | Art 5 | – | – | Art 3(1) | – |
Syria-Malaysia | 07/01/2009 | 03/05/2009 | – | ||||||
33 | Syria-Morocco | 23/10/2001 | 29/03/2003 | Arabic | Art 5 | – | – | Art 3 | – |
34 | Syria-Pakistan | 25/04/1996 | 04/11/1997 | English | Art 3(4) | – | – | – | – |
Syria-Philippines | 25/11/2009 | 04/05/2010 | – | ||||||
Syria-Romania | 24/06/2008 | 26/07/2009 | – | ||||||
Syria-Russia | 27/01/2005 | 13/07/2007 | – | ||||||
35 | Syria-Slovakia | 18/02/2009 | 09/12/2009 | English | Art 5(1)–(2) | Art 5(3) | – | Art 3(1)–(2) | – |
36 | Syria-Spain | 20/10/2003 | 14/12/2004 | English | Art 6(1) | Art 6(2) | – | Art 4(1)–(2) | – |
Syria-Sudan | 07/01/2000 | 01/09/2001 | – | ||||||
37 | Syria-Switzerland | 09/05/2007 | 01/07/2008 | French | Art 8 | – | – | Art 5(1)–(2) | – |
38 | Syria-Tunisia | 23/01/2001 | 12/03/2003 | Arabic | Art 3(5) | – | – | – | |
39 | Syria-Turkey | 06/01/2004 | 03/01/2006 | English | Art IV(3) | – | – | Art III(1)–(2) | – |
40 | Syria-UAE | 26/11/1997 | 10/01/2001 | Arabic | – | – | – | Art 3(1) | – |
Syria-Yemen | 09/10/1996 | 22/07/2005 | – | ||||||
41 | Yemen-Austria | 30/05/2003 | 01/07/2004 | English | Art 6 | – | – | Art 3(3) | – |
42 | Yemen-BLEU | 03/02/2000 | 31/12/2003 | French | Art 5 | – | – | Art 3(1) | – |
Yemen-Bulgaria | 12/04/2002 | 11/04/2003 | – | ||||||
Yemen-China | 16/02/1998 | 10/04/2002 | – | ||||||
43 | Yemen-Czech Rep. | 20/05/2008 | 04/09/2009 | English | Art 4(1) | Art 4(2) | – | Art 3(1)–(2) | Art 11 |
44 | Yemen-Egypt | 06/06/1996 | 10/04/1998 | Arabic | Art 6 | – | – | Art 4 | – |
45 | Yemen-Ethiopia | 15/04/1999 | 15/04/2000 | English | Art 5 | – | – | Art 3(2) | – |
46 | Yemen-France | 27/04/1984 | 19/07/1991 | French | Art 4(1) | Art 4(2) | – | Art 3(1) | – |
47 | Yemen-Germany | 02/03/2005 | 28/03/2008 | English | Art 4(3)–4(4) | – | – | Art 3(1)–(2) | – |
48 | Yemen-Hungary | 18/01/2004 | 09/04/2006 | English | Art 4(1) | – | – | Art 3(1)–(2) | – |
49 | Yemen-India | 01/10/2002 | 10/02/2004 | English | Art 6 | – | – | Art 4(1)–(2) | Art 12(2) |
Yemen-Iran | 29/02/1996 | 16/10/2000 | – | ||||||
50 | Yemen-Italy | 25/11/2004 | 03/05/2008 | English | Art IV | – | Art IV | Arts II(2), III(1) | – |
51 | Yemen-Jordan | 08/05/1996 | 28/01/1998 | English | Art 3(2) | – | – | Art 3(1) | – |
52 | Yemen-Lebanon | 25/11/1999 | 13/05/2002 | Arabic | Art 4(3) | Art 3(1) | |||
53 | Yemen-Netherlands | 18/03/1985 | 01/09/1986 | English | Art 7 | – | – | Art 3(2) | – |
Yemen- Oman | 20/09/1998 | 01/04/2000 | – | ||||||
Yemen-Russia | 01/12/2002 | 17/06/2005 | – | ||||||
54 | Yemen-Sweden | 29/10/1983 | 23/02/1984 | English | Art 4(1) | Art 4(2) | – | Art 3(1) | – |
55 | Yemen-Turkey | 07/09/2000 | 31/03/2011 | English | Art III(3) | – | – | Art II(1)–(2) | – |
56 | Yemen-UAE | 13/02/2001 | 25/08/2001 | Arabic | Art 5 | – | – | Art 3(1) | – |
57 | Yemen-UK | 25/02/1982 | 11/11/1983 | English | Art 4(1) | Art 4(2) | – | Art 3(1)–(2) | – |
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Spears, S., Fogdestam Agius, M. (2019). Protection of Investments in War-Torn States: A Practitioner’s Perspective on War Clauses in Bilateral Investment Treaties. In: Fach Gómez, K., Gourgourinis, A., Titi, C. (eds) International Investment Law and the Law of Armed Conflict. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-10746-8_14
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