The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS

Hilmar Raeschke-Kessler in collaboration with Dorothee Gottwald: Corruption in Foreign Investment—Contracts and Dispute Settlement Between Investors, States, and Agents

Neither a problem specific to developing countries nor restricted to authoritarian or transition societies, corruption takes place in all countries. Nor is it a recent problem. However, during the 1990sm the extent of real and perceived corruption rose significantly throughout the world. This article examines the legal effects of corruption on international investment contracts and proposes solutions for contracts and dispute resolution, aiming at a balance between anti-corruption values and the economic rationality of contracts.

Hilmar Raeschke-Kessler is with the Rechtsanwalt beim Bundesgerichtshof in Karlsruhe, Germany.

Dorothee Gottwald is a Desk Officer in the Federal Ministry of the Interior in Berlin, Germany.

Andrea Carlevaris: The Conformity of Investments with the Law of the Host State and the Jurisdiction of International Tribunals

This article deals with the Icsid practice on the interpretation of clauses frequently contained in bilateral investment treaties which provide that investments must be made in accordance with the laws of the host State. Two recent decisions have interpreted these clauses in a way that limits the State’s consent to Icsid jurisdiction and, accordingly, declined jurisdiction in cases where the investment had been made in breach of the law of the host State. Other decisions took a contrary view, where the violation could not be imputed to the investor, or was of minor importance. It is expected that future practice will shed further light on this problem which is likely to become one of the key issues in future Icsid practice.

Andrea Carlevaris holds a doctorate in International Law. He is admitted to the Rome Bar and practices at Bonelli Erede Pappalardo Studio legale.

Alberto Alvarez-Jiménez: Minimum Standard of Treatment of Aliens, Fair and Equitable Treatment of Foreign Investors, Customary International Law and the Diallo Case before the International Court of Justice

The Diallo Case before the International Court of Justice seems to offer a unique opportunity to declare both the minimum standard of treatment of aliens and the fair and equitable treatment standard as customary international law. This article analyzes the set of factors in play simultaneously in public international law and in international investment law that supports such expectations. However, the article also presents the other set of factors in these fields that does not provide strong support for the said hopes. The article concludes, first, that the Diallo Case could give the long-awaited clarification of the content of the minimum standard of treatment of aliens with regard to foreign investors; and, second, that it is unlikely that the fair and equitable treatment standard will end up receiving the official status of customary international law.

Alberto Alvarez-Jiménez holds a PhD from the University of Ottawa, Canada.

Ngangjoh Hodu Yenkong: Wto System and State Responsibility: Revisiting the Question of Attribution and its Development Perspective in the Wto

This article considers the universe of State responsibility in light of the international law concept of attribution in the Wto Agreement. As an aid to allocating responsibility to a particular Wto Member, attribution confirms the reasons for concluding that acts committed by individuals or entities within the territory of a Wto Member amounts to acts of the Member in question. To some extent, attributing an act to a Wto Member and establishing that such Member has violated its commitment under the Wto Agreement may also depend on whether such Member is a developing or developed country. Therefore, the development dimension as an objective for establishing violation needs to be factored into and institutionalized within the Wto judicial process.

Ngangjoh Hodu Yenkong, LL.M., LL.Lic (Dr.iur), LL.D. University of Helsinki, Finland, is a Programme Coordinator on Global Trade and Regional Integration at the Nordic Africa Institute in Uppsala, Sweden.

The 13th Geneva Global Arbitration Forum

This issue publishes parts of the proceedings of the 13th Geneva Global Arbitration Forum held 5 and 6 December 2007 which was sponsored by The Journal of World Investment & Trade, The Geneva Post Quartely and the online journal OGEL - TDM.   The Forum is the only regular international arbitration conference held in Geneva, which is the seat of so many dispute resolution bodies, and it is the foremost such conference held in Switzerland. Our Journal is honoured to be able to contribute to it.