Investment Arbitration and the Law of Countermeasures by Martins Paparinskis

By Martins Paparinskis

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PdfϾ (last accessed 28 February 2009) 27–30. 4/567, para 88. 142 2006 ILC Articles, above n 71, 89–90. 143 DD Caron, ‘The ILC Articles on State Responsibility: The Paradoxical Relationship between Form and Authority’ (2002) 96 American Journal of International Law 857; F Berman, ‘The ILC and its Relationship with the Sixth Committee’ (2006) 49 German Yearbook of International Law 107, 127 fn 74; A Pellet, ‘Article 38’ in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds) The Statute of the International Court of Justice: A Commentary (Oxford University Press, Oxford, 2006) 792.

PdfϾ (last accessed 28 February 2009), para 127. 162 Eg the discussion in Feldman v Mexico, ICSID Additional Facility Case No. Arb(AF)99/01, Interim Decision on Preliminary Jurisdictional Issues, December 6, 2000, (2003) 18 ICSID Review— Foreign Investment Law Journal 469, 480 (paras 39–49). 163 C Schreuer, ‘Travelling the BIT Route: of Waiting Periods, Umbrella Clauses and Forks in the Road’ (2004) 5 Journal of World Investment and Trade 231, 231–249. 164 J Collier and V Lowe, The Settlement of Disputes in International Law (Oxford University Press, Oxford, 1999) 155–156.

Since the right of invocation is different, there is no conflict but only support in the achievement of the goal of implementing State responsibility for the breach of the particular primary rule. Depending on the particular treaty that may provide for limitations or conditions, the home State would be entitled to pursue the claim through the State-State dispute settlement mechanisms or espouse the claim without referring to binding third-party procedures, claiming the responsibility for BIT breaches and non-compliance with the investor-State dispute settlement obligations.

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