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“Denial of Benefits” Clause in Pac Rim v. El Salvador and Liman v. Kazakhstan

“Denial of Benefits” Clause in Pac Rim v. El Salvador and Liman v. Kazakhstan * Dr. Crina Baltag, Secretary General amcham Brazil Arbitration Center; Attorney-at-law; Ph.D., Queen Mary University of London; LL.M. in International Commercial Arbitration, Stockholm University; M.Sc. in International Business, Academy of Economic Studies, Bucharest; LL.B., University of Bucharest. The decisions of the icsid tribunals in Pac Rim v. Republic of El Salvador and Liman Oil v. Republic of Kazakhstan raise interesting issues relevant in the context of international investment law, one of which is analyzed here below. Although both cases were submitted to icsid , Pac Rim v. El Salvador was based on the provisions of the Dominican Republic-Central America-United States Free Trade Agreement ( cafta ), 1 while Liman Oil v. Kazakhstan was brought under the provisions of the Energy Charter Treaty ( ect ). 2 The issue discussed in this comment and extensively debated by the tribunals concerns the right of the host State to deny an investor the benefits of the applicable investment treaty. One of the hot topics related to the denial-of-benefits right appeared to be the timeliness of the invocation of this right by the host State. Although they reached divergent conclusions, both tribunals emphasized that the commencement of the arbitration proceedings is not http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of World Investment and Trade Brill

“Denial of Benefits” Clause in Pac Rim v. El Salvador and Liman v. Kazakhstan

Baltag, Crina
Journal of World Investment and Trade , Volume 15 (3-4): 11 – Jul 28, 2014
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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
Subject
Case Comments
ISSN
1660-7112
eISSN
2211-9000
DOI
10.1163/22119000-01504018
Publisher site
See Article on Publisher Site

Abstract

* Dr. Crina Baltag, Secretary General amcham Brazil Arbitration Center; Attorney-at-law; Ph.D., Queen Mary University of London; LL.M. in International Commercial Arbitration, Stockholm University; M.Sc. in International Business, Academy of Economic Studies, Bucharest; LL.B., University of Bucharest. The decisions of the icsid tribunals in Pac Rim v. Republic of El Salvador and Liman Oil v. Republic of Kazakhstan raise interesting issues relevant in the context of international investment law, one of which is analyzed here below. Although both cases were submitted to icsid , Pac Rim v. El Salvador was based on the provisions of the Dominican Republic-Central America-United States Free Trade Agreement ( cafta ), 1 while Liman Oil v. Kazakhstan was brought under the provisions of the Energy Charter Treaty ( ect ). 2 The issue discussed in this comment and extensively debated by the tribunals concerns the right of the host State to deny an investor the benefits of the applicable investment treaty. One of the hot topics related to the denial-of-benefits right appeared to be the timeliness of the invocation of this right by the host State. Although they reached divergent conclusions, both tribunals emphasized that the commencement of the arbitration proceedings is not

Journal

Journal of World Investment and Trade – Brill

Published: Jul 28, 2014

Keywords: denial of benefits; prospective effect; retrospective effect; consultations; exercise of the right; cafta ; Energy Charter Treaty

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