Investment disputes arising out of areas of unsettled boundaries: Ghana/Côte d’Ivoire

Investment disputes arising out of areas of unsettled boundaries: Ghana/Côte d’Ivoire Abstract When investments have been made in an area in which a state asserts its sovereignty, but its boundaries later shift, which investment protection treaties apply? To illustrate this issue, this article focuses on the petroleum licences in the Atlantic Ocean between Ghana and Côte d’Ivoire as an investment, which were recently the subject of international proceedings on delimitation of the maritime boundary. This uncertainty arises regardless of how the International Tribunal for the Law of the Sea would have delimited the maritime boundary. Potential issues arising from investment treaties include: the definition of an investor, the definition of territory and the timing of the investment. Depending on how the Ghana/Côte d’Ivoire boundary disputes were resolved, investment arbitrations could be commenced against either, or both, of the states. The problems highlighted in this article are relevant to many other unsettled territorial and maritime boundaries in the world which may trigger investment disputes. 1. INTRODUCTION Regardless of what delimitation lines the International Tribunal for the Law of the Sea (ITLOS) Special Chamber drew, the uncertainty surrounding the hydrocarbon concession blocks between Ghana and Côte d’Ivoire remains an issue that pervades other land and maritime disputes.1 There are currently more than 150 unresolved interstate disputes concerning international boundaries on land or at sea. The Ghana/Côte d’Ivoire dispute focuses on the risks faced by companies developing hydrocarbon reserves in disputed areas. The chief risk is that a licence previously granted to investors will be later contested.2 However, this article is equally relevant to other investment disputes such as tourism resorts on contested islands.3 In its current state of development, international investment law is made up of a network of approximately 3300 mostly bilateral treaties. Almost all states have investment treaties with other states. Even North Korea has 24 investment treaties currently in force.4 It is a system premised on a state with a relatively stable existence, agreeing usually by treaty, to protect on a reciprocal basis, the investments made by another state’s nationals within its boundaries. The problem arises when an investor from a third state makes an investment in an area of unsettled boundaries, and the investment is affected by a state’s measures or an international court or tribunal delimits that area as belonging to another state. Which state’s investment treaty applies? Most importantly, what rules of international law should govern this question? The Ghana/Côte d’Ivoire maritime boundary delimitation proceedings5 determined the fate of the investors holding oil concessions in the disputed area. On 23 September 2017, ITLOS Special Chamber issued its judgment on the delimitation. This article borrows the context of the Ghana/Côte d’Ivoire dispute to illustrate the international legal issues arising out of investments made in areas of disputed sovereignty. First, this article briefly discusses the issues that arise regarding investments in areas of unsettled boundaries under investment treaties. The most relevant issues are the treaty’s definition of ‘investor’, ‘territory’ and the timing of the investment. Secondly, this article will explore which substantive investment protection obligations could apply to investments affected by such a maritime boundary dispute. Thirdly, this article discusses the implications of a boundary delimitation. 2. GHANA/CÔTE D’IVOIRE MARITIME BOUNDARY DISPUTE The maritime boundary between Ghana and Côte d’Ivoire had never been formally delimited.6 Yet it was undeniable that there was already an ‘enormous investment in the Deepwater Tano Concession Block, including the TEN (Tweneboa-Enyenra-Ntomme) … fields, which has taken place over the last nine years (since 2006)’.7 More than US$4.5 billion had been invested.8 For many years, Ghana had conducted oil exploration and production in the area of the Gulf of Guinea that was disputed between Ghana and Côte d’Ivoire. Since 2008, Ghana claimed that the western limit of its oil blocks created under these conditions should be adopted as the maritime boundary.9 On the other hand, Côte d’Ivoire claimed that Ghana failed to pay heed to Côte d’Ivoire’s repeated calls to cease all activity in the disputed area.10 Côte d’Ivoire claimed ‘the right to select the oil companies to conduct exploration and exploitation operations and freely to determine the terms and conditions in its own best interest and in accordance with its own requirements with respect to oil and the environment’.11 Côte d’Ivoire also claimed compensation for any violations of such rights.12 Côte d’Ivoire’s Minister of Petroleum and Energy was appointed its agent in the proceedings, emphasizing that the main interests of the states in the dispute were the concessions for petroleum exploration.13 After consultations with the President of the ITLOS on 2–3 December 2014, Ghana and Côte d’Ivoire entered a special agreement on 12 January 2015 to submit their maritime boundary delimitation to a Special Chamber of ITLOS.14 In order to protect its claimed rights, Côte d’Ivoire requested urgent provisional measures on 27 February 2015. Côte d’Ivoire requested the ITLOS Special Chamber to order Ghana to: take all steps to suspend all ongoing oil exploration and exploitation operations in the disputed area, refrain from granting any new permit for oil exploration and exploitation in the disputed area, take all steps necessary to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area from being used in any way whatsoever to the detriment of Côte d’Ivoire, and, generally, take all necessary steps to preserve the continental shelf, its superjacent waters and its subsoil, and desist and refrain from any unilateral action entailing a risk of prejudice to the rights of Côte d’Ivoire and any unilateral action that might lead to aggravating the dispute.15 On 25 April 2015, the ITLOS Special Chamber decided that: Ghana shall take all necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area as defined in paragraph 60; Ghana shall take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Côte d’Ivoire; Ghana shall carry out strict and continuous monitoring of all activities undertaken by Ghana or with its authorization in the disputed area with a view to ensuring the prevention of serious harm to the marine environment; The Parties shall take all necessary steps to prevent serious harm to the marine environment, including the continental shelf and its superjacent waters, in the disputed area and shall cooperate to that end; The Parties shall pursue cooperation and refrain from any unilateral action that might lead to aggravating the dispute.16 Apart from the orders in aid of protecting the marine environment, the first two provisional measures indirectly prevented investors in the oil concessions from operating and benefiting from their investment. In fact, the concerned operators of the oil concessions sent representatives to attend the hearing on the application for provisional measures. Two of the ITLOS orders are of particular relevance to investors. Ghana must take steps to ensure that the investors do not undertake any new drilling in the disputed area.17 Ghana must also take steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Côte d’Ivoire.18 On 14 November 2016, Côte d’Ivoire submitted in its Counter-Memorial that despite the provisional measures ordered by the ITLOS Special Chamber including to refrain from drilling activities in the disputed area,19 Ghana was not complying with the order for provisional measures.20 Côte d’Ivoire further submitted that Ghana commenced a second drilling phase scarcely a few weeks after the provisional measures order.21 In response, Ghana submitted that it had required its operators to comply with the provisional measures order and asked the companies to keep adequate records of the steps taken to comply.22 Although the investors were not a party to the ITLOS proceedings,23 the Chief Operating Officer of Tullow Oil submitted a statement to the ITLOS Special Chamber explaining that prior to the provisional measures order, Tullow had already drilled 11 wells, of which ten were to be used for first oil production. The 11th well was intended to be used as a water injector well for improving production, and had been both spudded and drilled to a very substantial depth. Since it was a pre-drilled well, Tullow merely completed that well by drilling it out to its final depth and performing other completion activities to prepare the TEN fields for production.24 Thus, at least one oil company Tullow, was ready for production and to finally reap the benefits of its investment. Its ability to exploit its investment, however, depended on the decision on delimitation of a maritime boundary between Ghana and Côte d’Ivoire by the ITLOS Special Chamber. Finally, on 23 September 2017, the ITLOS Special Chamber issued its judgment delimiting the maritime boundary, and finding that Ghana’s activities did not violate Côte d’Ivoire’s sovereign rights, did not breach its obligations to exercise restraint pending delimitation, and did not violate the prescribed provisional measures.25 The ITLOS Special Chamber found that luckily, none of Ghana’s earlier hydrocarbon activities had taken place in any area, which was later delimited to be within Ivorian’s maritime area.26 But what if the hydrocarbon concessions granted earlier by Ghana were later found to be falling within Côte d’Ivoire’s rightful maritime area? 3. POTENTIAL ISSUES ARISING FROM INVESTMENT TREATIES A typical investment treaty contains state obligations not to expropriate investments without compensation, obligations to treat investments in a fair and equitable manner, non-discrimination and full protection and security.27 Does ‘the enormous investment in the Deepwater Tano Concession Block’ benefit from protection by an investment treaty? Côte d’Ivoire has approximately seven bilateral investment treaties with other states currently in force.28 Similarly, Ghana has approximately eight bilateral investment treaties with other states currently in force.29 Whether a state’s investment protection obligations apply to a particular investment depends on the scope of several definitions within the treaty, including ‘investor’, ‘territory’ and ‘investment’. Definition of an ‘Investor’ The first issue is one of jurisdiction ratione personae. Investors could be individuals with foreign and multiple nationalities or companies incorporated in different states. Their nationality could depend on at least two different legal regimes—domestic and international law. In the case of disputed maritime boundaries, the place of incorporation or registration of a company is unlikely to be affected. In the case of Ghana/Côte d’Ivoire, for example, Tullow Oil is based in the UK. Under the Ghana–UK investment treaty,30 a corporate investor who is entitled to investment protection in Ghana includes ‘corporations, firms and associations incorporated or constituted under the law in force in any part of the United Kingdom’.31 In the case of disputed land boundaries, however, the issue is more delicate. Take the example of a municipal area, such as Crimea which was recognized as part of Ukraine, governed by a central government from Kiev. If a municipal area such as Crimea were to secede,32 or to become part of another state such as the government of the Russian Federation by treaty33 or annexation34, the companies incorporated in Crimea may have recourse against the Russian Federation by maintaining their Ukrainian nationality at the time of incorporation, or recourse against the government of Ukraine, by gaining Russian nationality. There are no easy answers to this.35 Definition of ‘Territory’ The second issue is one of jurisdiction ratione materiae. Begin with the observation that ‘law, international law in particular, creates its own geography… its geography is that of a world of ideas which is imposed upon the physical world’.36 Regardless of a state’s military presence or physical control over a particular geography, its sovereignty is asserted in the universe of investment law, by imposing a definition of its ‘territory’ in its investment treaty. The definition of ‘territory’ determines the tribunal’s jurisdiction. As Brownlie accurately explains: Ultimately territory cannot be distinguished from jurisdiction for certain purposes. Both terms refer to legal powers, and, when a concentration of such powers occurs, the analogy with territorial sovereignty justifies the use of the term ‘territory’ as a form of shorthand.37 Some investment treaties are designed to cover investments only in land territory. For example, the Russia–Ukraine investment treaty defines ‘investment’ as ‘all kinds of property and intellectual values, which are put in by the investor of one Contracting Party on the territory of the other Contracting Party in conformity with the latter's legislation’.38 Some others do not define their ‘territory’ at all.39 Even within the same investment treaty, each state often defines the scope of their ‘territory’ in a unique manner. For example, in the NAFTA, Mexico, Canada and the USA all have separate and distinct definitions of ‘territory’.40 In investment treaties, the definition of ‘territory’ is a misnomer—it covers both the state’s land and maritime areas.41 For example, the ‘territory’ of the UK is defined in the Ghana–UK investment treaty as: Great Britain and Northern Ireland, including the territorial sea and any maritime area situated beyond the territorial sea of the United Kingdom which has been or might in the future be designated under the national law of the United Kingdom in accordance with international law as an area within which the United Kingdom may exercise rights with regard to the seabed and subsoil and the natural resources and any territory to which this Agreement is extended in accordance with the provisions of Article 12.42 The ‘territory’ of Ghana is defined in the same investment treaty as: the present territory of the Republic of Ghana including the territorial sea and any maritime area situated beyond the territorial sea of Ghana which has been or might in the future be designated under the national law of Ghana in accordance with international law as an area within which Ghana may exercise rights with regard to the sea-bed and subsoil and the natural resources.43 Territorial sovereignty is fundamentally different from maritime sovereignty. While territorial sovereignty gives the state control over all land and airspace within its borders, maritime sovereignty is governed by the substantive provisions of the United Nations Convention on the Law of the Sea (UNCLOS).44 Many, but not all, investment treaties define their ‘territory’ expressly in accordance with international law. According to UNCLOS, a state’s maritime sovereignty is divided into four basic zones: its internal waters which are granted rights equivalent to the state’s rights over land territory, the territorial sea of 12 nautical miles45 within which the state exercises full sovereignty, the exclusive economic zone (EEZ) of 200 nautical miles within which the state exercises sovereign rights over the water column,46 and the continental shelf (CS) in which the state exercises rights to the seabed including its minerals based on its geographical extension.47 Investment claims relating to sovereign rights in the EEZ and CS must be assessed differently from sovereignty over land, islands and the territorial sea. Treaty definitions of ‘territory’ could also be designed to be flexible over time. In many of the UK’s investment treaties, its definition of ‘territory’ can be extended by a specified act: Territorial Extension At the time of ratification of this Agreement, or at any time thereafter, the provisions of this Agreement may be extended to such territories for whose international relations the Government of the United Kingdom are responsible, as may be agreed between the Contracting Parties in an Exchange of Notes.48 Furthermore, a state’s unilateral assertion of the scope of its boundaries is not the last word on the matter. Its claimed boundary is checked by legality under international law. For example, the Ghana–Netherlands investment treaty recognizes that: ‘the term “territory” includes the maritime areas adjacent to the coast of the State concerned, to the extent to which that State may exercise sovereign rights or jurisdiction in those areas according to international law.’49 International law, at least between the parties, is partly made by the decisions of courts and tribunals.50 When the status of a territory or maritime area thus changes in international law, what is its effect on the states’ investment treaties? Timing of the investment The third issue is one of jurisdiction ratione temporis. Two dates are most relevant: (i) the date the investment was ‘made’; and (ii) the date the dispute arose. First, many of Ghana and Côte d’Ivoire’s existing investment treaties protect both existing and future investments.51 For example, the China–Ghana investment treaty contains a provision expressly extending its application to investments ‘which are made prior to or after’ the entry into force of the investment treaty.52 Similarly, the Denmark-Ghana investment treaty defines ‘investment’ as including ‘all investments, whether made before or after the date of entry into force of this Agreement’.53 This means that in the context of Ghana/Côte d’Ivoire, the date that the investment was ‘made’ is not likely to be a critical issue. In contrast, some treaties exclude investments made prior the entry into force of the investment treaty, or prior to a specified date.54 For example, the Russia–South Africa (23 June 2000) investment treaty extends protection only to investments made after 1 January 1987.55 If an investment is ‘compulsorily transferred’ from one state’s side of a boundary to another state’s side, the question of what date the investment was deemed to have been made could be critical.56 For example, for an existing investment made before 1 January 1987 in the territorial seas around Crimea, a South African investor wishing to bring proceedings against Russia for measures taken to damage the investment after 2015 would have to address the issue whether such an investment would be deemed to have been made prior to 1 January, 1987, excluded from the scope of the Russia–South Africa investment treaty’s protection. On the other hand, if it could be argued that the investment was ‘made’ in Russia later in 2014, at the time that the state boundaries shifted. Secondly, the date the dispute is deemed to have arisen will be critical to whether the investment arbitration tribunal has jurisdiction. This is particularly so where treaties expressly exclude disputes arising prior to the entry into force of the treaty. Some treaties contain an express exclusion of disputes arising prior to the entry into force of the treaty. For example, the ASEAN Comprehensive Investment Agreement states: ‘This Section shall not apply to claims arising out of events which occurred, or claims which have been raised prior to the entry into force of this Agreement.’57 Such limitations gave rise to objections to jurisdiction ratione temporis in several investment arbitrations.58 In Jan de Nul v Egypt,59 the investment treaty provided that it would apply to investments prior to or after its entry into force, but would ‘not be applicable to disputes having arisen prior to its entry into force’.60 The tribunal decided that the purpose of such limitations in investment treaties was to ‘exclude disputes which have crystallised before the entry into force of the BIT’.61 It also referred to the temporal principle in Article 28 of the VCLT62 and Article 13 of the ILC Articles on State Responsibility.63 However, in Jan de Nul v Egypt, it was possible to distinguish the dispute on violations of the investment treaties from the disputes before the Egyptian courts.64 Since the judgment of the Egyptian court was rendered after 2002, the substantive provisions of the 2002 BIT were applicable. Arguably, this decision illustrates the point that in theory a claim may be made under a later BIT in respect of breaches of an earlier BIT, where the dispute arises after the later BIT has come into force.65 Such a breach should not be a continuing one.66 In Empresas v Peru,67 the investment treaty stated that it would not apply to ‘differences or disputes that arose prior to its entry into force’. The investor owned a business manufacturing and selling pasta near a protected wetland. The municipal authorities first revoked the plant’s permits in late 1997 for environmental concerns, but the Claimants successfully challenged the measure in Peru. After the entry into force of the Chile–Peru BIT in August 2001, the permits were once again revoked. The tribunal stated that ‘the critical element in determining the existence of one or two separate disputes is whether or not they concern the same subject matter’. The tribunal interpreted both events as an ongoing dispute because the earlier dispute ‘had come to an end or had not as yet crystallized into a dispute’.68 This wide interpretation of a dispute was also followed in CMS v Argentina.69 The tribunal focussed on the fact that the measures covered the same subject matter, therefore, ‘the fact that they may originate from different sources or emerge at different times does not necessarily mean that the disputes are separate and distinct’.70 4. BREACH OF INVESTMENT PROTECTION OBLIGATIONS Layered over these definitions of nationality, land sovereignty and maritime sovereignty and timing of the investment, are issues relating to investment protection obligations. State measures affecting investments, depending on what the measures are, could potentially constitute an unlawful expropriation, a breach of obligations regarding fair and equitable treatment, non-discrimination or full protection and security. Unlawful expropriation Most investment treaties require the state not to deprive an investor of its property rights without a public purpose justification, due process, ensuring non-discrimination and with payment of prompt, adequate and effective compensation.71 For example, the Ghana–Netherlands investment treaty states:72 1. Investments of nationals of either Contracting Party shall not be nationalised, expropriated or subjected to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as ‘expropriation’) in the territory of the other Contracting Party unless the following conditions are complied with: a. the measures are taken for a public purpose related to the internal needs of that Contacting Party, on a non-discriminatory basis and under due process of law; b. the measures are accompanied by provision for the payment of compensation amounting to the genuine value of the investment expropriated immediately before the expropriation or before the impending expropriation became public knowledge, whichever is the earlier; c. payments of compensation shall be made without undue delay and shall be freely transferable to the country designated by the claimants concerned and in the currency of the country of which the claimants are nationals or in any freely convertible currency accepted by the claimants; and d. if the compensation is not paid within six months after its determination, it shall from that date attract interest at the normal commercial rate until the date of payment. 2. The national affected shall have the right, under the law of the Contracting Party making the expropriation, to prompt determination of the amount of compensation either by law or by agreement between the parties and to prompt review, by a judicial or other independent authority of that Party, of his case and of the valuation of his investment in accordance with the principles set out in paragraph (1) of this Article, without prejudice to the procedure contained in Article 9 of this Agreement. In Ghana/Côte d’Ivoire, Ghana alleged that Côte d’Ivoire constructed a manifestly flawed and deceptive new equidistance line so that Ghana’s concessions and oil fields would appear to fall partially on Côte d’Ivoire’s side.73 If the ITLOS Special Chamber had drawn a delimitation line following Côte d’Ivoire’s ‘new equidistance line’, resulting in exploitation-ready oil fields falling within Côte d’Ivoire boundaries, the investment would then fall within the territory of Côte d’Ivoire. Côte d’Ivoire had expressed its desire to exercise ‘the right to select the oil companies to conduct exploration and exploitation operations and freely to determine the terms and conditions in its own best interest and in accordance with its own requirements with respect to oil and the environment’.74 If Côte d’Ivoire then failed to recognise the existing investor’s oil concessions and rights to exploit these fields in the future, it could give rise to a claim for unlawful expropriation. In a different scenario, if Ghana entered into a negotiated boundary75 ceding the areas with several existing oil fields to Côte d’Ivoire, an aggrieved investor could bring a claim against Ghana for an unlawful expropriation. Fair and equitable treatment Most investment treaties provide for fair and equitable treatment of foreign investments.76 It is the most frequently invoked obligation in investment treaty disputes. For instance, the UK–Ghana investment treaty provides:77 Investments of nationals or companies of each Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party. Fair and equitable treatment traces its roots to the Neer case: ‘an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency’.78 Jurisprudence has shaped the standard of fair and equitable treatment to generally prohibit ‘conduct is arbitrary, grossly unfair, unjust or idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice, or involves a lack of due process leading to an outcome which offends judicial propriety—as might be the case with a manifest failure of natural justice in judicial proceedings or a complete lack of transparency and candour in an administrative process’.79 Fair and equitable treatment may also be interpreted to include the requirement that the state act in a transparent manner,80 consistently,81 in good faith,82 and with due process.83 The Canada–Côte d’Ivoire investment treaty provides a detailed obligation of transparency:84 1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting a matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them. 2. To the extent possible, each Party shall: a. publish in advance any measure referred to in paragraph 1 that it proposes to adopt; and b. provide interested persons and the other Party a reasonable opportunity to comment on that proposed measure. 3. Upon request by a Party, the other Party shall provide information on a measure that may have an impact on a covered investment. Ghana also alleged that Côte d’Ivoire engaged in disparaging and unjustified attacks on the transparency of Ghana’s oil and gas practices and the technological competency of Ghana’s concession-holders.85 If Côte d’Ivoire had been awarded the maritime area containing the existing hydrocarbon investments, but later appeared to favour its own oil companies or concessionaire, this could give rise to a claim of breach of fair and equitable treatment, non-discrimination or national treatment. Non-discrimination, most favoured nation and national treatment Non-discrimination and the prohibition of arbitrary behaviour are regarded as a fundamental aspect of international investment law.86 Non-discrimination is often a stand-alone clause in investment treaties. For example, the Ghana–UK investment treaty87 and Côte d’Ivoire–UK investment treaty88 both state in almost identical wording: Neither Contracting party shall, in any way, impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposal of investments in its territory of nationals or companies of the other Contracting Party. The obligation not to discriminate is sometimes tied to fair and equitable treatment, national and MFN treatment. For example, the China–Ghana investment treaty provides that:89 1. Investments and activities associated with investments of investors of either Contracting State shall be accorded equitable treatment and shall enjoy protection in the territory of the other Contracting State. The treatment and protection referred to in Paragraph 1 of this Article shall not be less favourable than that accorded to investments and activities associated with such investments of investors of a third State. 2. The treatment and protection referred to in Paragraph 1 of this Article shall not be less favourable than that accorded to investments and activities associated with such investments of investors of a third State. National Treatment is described in the Canada–Côte d’Ivoire investment treaty as follows: 1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory. 2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory. 3. The treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a sub-national government, treatment accorded, in like circumstances, by that subnational government to investors, and to investments of investors, of the Party of which it forms a part. Ghana sent letters to its oil concessionaires informing them of the provisional measures order, requiring its operators to comply with the provisional measures order and asking the companies to keep adequate records of the steps taken to comply with the provisional measures order.90 A halt to drilling is likely to impair the management, maintenance, use, enjoyment or disposal of the investment. The impairment of the ability of the operators to realise the fruits of their investment by exploiting the oil wells could give rise to a claim if Ghana acted in a manner that is unreasonable or discriminatory.91 Côte d’Ivoire claimed ‘the right to select the oil companies to conduct exploration and exploitation operations and freely to determine the terms and conditions in its own best interest and in accordance with its own requirements with respect to oil and the environment’.92 If an oil field or a part of an oil field was determined to fall within the territorial seas of Côte d’Ivoire, an investor with UK nationality owning or operating that oil field would prima facie be entitled to protection under the Côte d’Ivoire–UK investment treaty. If Côte d’Ivoire proceeded to select new oil companies ‘in its own best interest and in accordance with its own requirements’, any arbitrariness or discriminatory effect could give rise to a claim of breach of fair and equitable treatment, national treatment or most-favoured nation treatment. Full protection and security The Ghana–Netherlands investment treaty provides that ‘each Contracting Party shall accord to such investments full security and protection which in any case shall not be less than that accorded either to investments of its own nationals or to investments of nationals of any third State, whichever is more favourable to the national concerned’.93 Generally, full protection and security is interpreted as a state’s obligation to exercise due diligence in protecting the physical security of the investment.94 The Canada–Côte d’Ivoire investment treaty explains that ‘For greater certainty, the obligation to accord full protection and security in accordance with paragraph 1 is an obligation requiring each Party to take all measures reasonably necessary to ensure the protection and security of the covered investment.’95 A claim may be brought against Ghana for a failure to accord the investment full protection and security if Ghana failed to protect an oil field from physical damage, destruction or other interferences with its operation. Often, full protection and security extends to oblige the State to maintain legal or commercial security.96 Such legal security may be interpreted as requiring the state to ‘ensure that neither by amendment of its laws nor by actions of its administrative bodies is the agreed and approved security and protection of the foreign investor’s investment withdrawn or devalued’.97 Full protection and security has also been interpreted as a ‘guarantee to stability in a security environment, both physical, commercial and legal’.98 The oil companies had been investing billions of dollars in prospecting and exploration activities for about nine years, arguably in reliance of the legal security provided by Ghana’s concessions. This could generate legitimate expectations on the part of the investor that Ghana would ensure the legal framework for operations of the oil fields would not be destabilized. 5.IMPLICATIONS OF A BOUNDARY DELIMITATION Articles 74(1) and 83(1) of UNCLOS state: ‘The delimitation of the exclusive economic zone [and continental shelf] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution’.99 According to established jurisprudence in maritime delimitation, the International Court of Justice’s judgment should be based primarily on the geographical features of both states, generally following the three-step delimitation methodology100 as set out in the Black Sea case.101 Maritime boundary delimitation jurisprudence is clear that existing oil concessions have little or no weight on the court or tribunal’s decision: [A]lthough the existence of an express or tacit agreement between the parties on the siting of their respective oil concessions may indicate a consensus on the maritime areas to which they are entitled, oil concessions and oil wells are not in themselves to be considered as relevant circumstances justifying the adjustment or shifting of the provisional delimitation line.102 The court or tribunal’s delimitation would be a substantive finding of international law. Unless otherwise stated, a decision on sovereignty may operate retroactively.103 For instance, in the Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan, the ICJ judged in 2002 that ‘Malaysia has title to Ligitan and Sipadan on the basis of the effectivités’ asserted in 1962 and 1963.104 Similarly, in Guinea Bissau v Senegal, the arbitral tribunal decided in 1989 that the States were bound by the maritime boundary agreed in the colonial 1960 treaty, which the states succeeded to in 1973.105 Furthermore, the process of delimitation may be distinct from the question of entitlement to the continental shelf itself. Legal title has to do with defining the basis on which a State is legally empowered to exercise rights and jurisdiction over the maritime areas adjacent to its coasts.106 On the basis of the legal title of the distance criterion, jurisdiction of coastal states is generated by their coasts.107 In other words, maritime delimitation does not determine what is a state’s entitlement to a continental shelf, but rather delimitation draws a dividing line between areas which ‘already appertain’ to one or other of the states.108 On the other hand, the ITLOS Special Chamber in Ghana/Côte d’Ivoire took a different approach to the effect of a delimitation. While both Ghana and Cote d'Ivoire submitted that a delimitation was merely declarative, the Special Chamber emphasized that its delimitation was constitutive. In a case of overlapping claims, both states have an entitlement to the relevant continental shelf on the basis of their relevant coasts, but only a legal delimitation establishes which part of the continental shelf under dispute appertains to which state.109 Although the judgment gives one state's entitlement priority over the other,110 before the judgment was delivered, maritime activities undertaken by a state in an area later attributed to another state by an international judgment cannot be considered to be in violation of the sovereign rights of the latter state if the claims were made in good faith.111 Complicating matters further, an ICJ judgment or arbitral award is subject to various challenges on the grounds of excess of jurisdiction, nullity, revision or interpretation. Many delimitation disputes have the propensity to continue even after treaties have been entered into or third party decisions have been rendered.112 For instance, the tribunals in the Beagle Channel case113 and Guinea-Bissau v Senegal were requested to pronounce on how far the maritime boundary had been determined by earlier treaties.114 More recently, in the South China Sea arbitration, China has declared that it will treat the arbitral award as a ‘nullity’,115 and in the Croatia/Slovenia arbitration, Croatia has indicated its intention not to abide by the arbitral tribunal’s delimitation.116 Both Ghana’s and Côte d’Ivoire’s investment treaties contain investment protection obligations. A foreign investor, depending on its nationality, could potentially commence several parallel arbitrations alleging breaches of the treaty obligations described above.117 Ghana and Côte d’Ivoire have given their consent to investor–state arbitration in almost all their investment treaties currently in force,118 including the Ghana–UK investment treaty,119 the Canada–Côte d’Ivoire investment treaty,120 the Côte d’Ivoire–UK investment treaty,121 the Côte d’Ivoire–Germany investment treaty,122 the China–Ghana investment treaty123 and the Ghana–Netherlands investment treaty.124 If ITLOS had decided that rights to the maritime areas where Ghana had licensed petroleum blocks rightfully belong to Côte d’Ivoire,125 it would undeniably affect the investor’s licences. As part of the delimitation dispute, the ITLOS could also have decided that Ghana’s past issuance of licences violated Côte d’Ivoire’s rights under international law if they were deemed not issued in good faith.126 Ghana’s investment protection obligations may be triggered, especially with regard to the investor’s legitimate expectations. At the same time, would the ITLOS’s delimitation justify the application of Côte d’Ivoire’s investment treaty to the investment retroactively? Investors are frequently in a position to assert multiple parallel claims arising under various legal instruments such as investor–state contracts, the law of the host state, international treaties and general international law.127 However, parallel proceedings risk double recovery, conflicting outcomes and legal uncertainty, increased costs and investors’ abuse of process to increase their chances of success.128 Complicated judicial mechanisms to regulate parallel proceedings are being developed including jurisdiction-regulating mechanisms, agreed coordination mechanisms, hierarchical mechanisms, first-in-time mechanisms, and general coordination mechanisms.129 Yet, the problems presented by an investment dispute arising from an area of unsettled boundaries presents a peculiar type of parallel proceedings. In these circumstances, what legal rules should govern? 6. CONCLUSION Pending the decision of ITLOS between the Order on Provisional Measures of 25 April 2015 and the Judgment on maritime delimitation on 23 September 2017,130 investors who had commenced oil exploration in the area of unsettled maritime zones were indirectly ordered not to conduct any further drilling.131 The damages caused through business interruption have not been publicly quantified. Investment claims could also potentially be commenced in relation to the effects of provisional measures, depending on ripeness and admissibility. The Ghana/Côte d’Ivoire dispute illustrates only some of the potential issues, which could arise in relation to the conduct of international proceedings in the context of unsettled boundaries. Identifying a general rule of international law that could harmonize the various competing international law regimes is important because of its potential application to other land and maritime disputes. Footnotes 1 ‘Mapping Every Disputed Territory in the World’ (Metrocosm, 20 November 2015) <http://metrocosm.com/mapping-every-disputed-territory-in-the-world/> accessed 10 November 2017; Richard Happ and Sebastien Wuschka, ‘Horror Vacui: Or Why Investment Treaties Should Apply to Illegally Annexed Territories’ (2016) 33(3) J Int’l Arb 245; Enrico Milano and Irini Papanicolopulu, ‘State Responsibility in Disputed Areas on Land and at Sea’ (2011) ZaöRV 71 (‘Milano & Papanicolopulu’); Arbitration Under the Timor Sea Treaty (Timor-Leste v Australia), Permanent Court of Arbitration, PCA Case No 2013–16 < http://www.pca-cpa.org/showpage.asp?pag_id=1403> accessed 5 June 2017; Conciliation between the Democratic Republic of Timor-Leste and the Commonwealth of Australia, PCA Case 2016–10, Decision on Competence, paras 5–12; Agreement Relating to the Unitisation of the Sunrise and Troubadour Fields [2007] (ATS 11, 23 Feb 2007), <http://www.austlii.edu.au/au/other/dfat/treaties/2007/11.html> accessed 5 June 2017; Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World (Brill 2005). 2 See, for example, disputes referred to as ‘Kenya / Somalia, South China Sea, Cyprus / Turkey, Guyana / Venezuela, Timor Gap, The Faulkands / Malvinas’ in Nigel Blackaby and Ben Juratowitch, ‘Hydrocarbons in Disputed Areas’ (2015) 44 (4) ILN 1; Xinhua News Agency, ‘China Succeeds in Mining Combustible Ice in South China Sea’ Xinhua News Agency(18 May 2017) <http://www.shanghaidail y.com/nation/China-succeeds-in-mining-combustible-ice-in-South-China-Sea/shdaily.shtml> accessed 31 May 2017; Marie-Christine Aquarone, ‘The 1985 Guinea/Guinea‐Bissau Maritime Boundary Case and Its Implications’ (1995) 26 (4) Ocean Dev & Int’l L 413; Saadia Bhatty and Nefeli Lamprou, ‘Pitfalls of Investing in Sub-Saharan African Regions with Unsettled Boundaries: How Foreign Investors May Minimize and Manage Investment Risk’ (2016) 13 (4) TDM 3. 3 ‘Manila Wants South China Sea Outpost to be Tourism Draw’ Straits Times (17 May 2017 <http://www.straits times.com/asia/se-asia/manila-wants-s-china-sea-outpost-to-be-tourism-draw> accessed 31 May 2017. 4 UNCTAD, IIAs by Economy, ‘Democratic People’s Republic of Korea’ <http://investmentpolicyhub.unctad.org/IIA/CountryBits/110#iiaInnerMenu> accessed 5 June 2017. 5 Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire) ITLOS Case No 23 <https://www.itlos.org/en/cases/list-of-cases/case-no-23/> accessed 10 November 2017 (‘Ghana/Côte d'Ivoire’). 6 Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire) ITLOS Case No 23 (Provisional Measures) (‘Ghana/Côte d'Ivoire Provisional Measures’) Order (25 April 2015), para 52 <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_prov_meas/C23_Order_prov.measures_25.04.2015_orig_Eng.pdf> accessed 10 November 2017 (‘Ghana/Côte d'Ivoire Provisional Measures Order’). 7 ibid, para 84. 8 Ghana/Côte d'Ivoire Provisional Measures, Written Statement of Ghana (23 March 2015) 14, pt 8 <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_prov_meas/Vol._I_-_Written_Statement _of_Ghana_FINAL.pdf >  accessed 10 November 2017. 9 Ghana/Côte d’Ivoire, Counter Memorial of Côte d’Ivoire (4 April 2016), para 12 <https://www.itlos.org/file admin/itlos/documents/cases/case_no.23_merits/pleadings/Counter_Memorial_final_Vol.I_Eng_TR.pdf> accessed 10 November 2017 (‘Ghana/Côte d'Ivoire, Counter Memorial of Côte d'Ivoire’). 10 ibid, para 24. 11 Ghana/Côte d'Ivoire, Provisional Measures Order (n 6) para 48. 12 Ghana/Côte d'Ivoire, Counter Memorial of Côte d'Ivoire (n 9) paras 9.33–9.39; Ghana/Côte d'Ivoire, Reply of Ghana (26 July 2016), paras 5.28–5.30 <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_merits/ pleadings/Reply_of_ Ghana__Vol._I_.PDF> accessed 10 November 2017; Ghana/Côte d'Ivoire, Rejoinder of Côte d'Ivoire (14 November 2016), paras 6.66–6.70 <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23 _merits/pleadings/C23_Rejoinder_TR.pdf >  accessed 10 November 2017. 13 Ghana/Côte d'Ivoire, Special Agreement and Notification of 3 December 2014 and the Minutes of Consultation, annexed thereto, 1 <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_merits /X001_special_agreement.pdf >  accessed 10 November 2017 (‘Ghana/Côte d'Ivoire Special Agreement’). 14 ibid. 15 Ghana/Côte d'Ivoire Provisional Measures Order (n 6), para 25. 16 ibid 21–22, para 108. 17 ibid 22, para 108(1)(a). 18 ibid, para 108(1)(b). 19 ibid, para 108; Ghana/Côte d'Ivoire, Counter Memorial of Côte d'Ivoire (n 9), para 24. 20 Ghana/Côte d'Ivoire, Counter Memorial of Côte d'Ivoire, ibid, para 24. 21 Ghana/Côte d'Ivoire, Rejoinder (n 12), paras 6.51–6.65. 22 Ghana/Côte d'Ivoire, Reply (n 12), para 5.47. 23 For some options for investors to participate in interstate boundary disputes, see: Tim Martin, ‘Energy and International Boundaries’ in Kim Talus (ed) Research Handbook on International Energy Law (Edgar 2014) 194–95. 24 Ghana/Côte d'Ivoire, Reply of Ghana (n 12), paras 5.51–5.52 (Second Statement of Tullow, RG, vol IV, annex 166). 25 Ghana/Côte d'Ivoire, Judgment of 23 September 2017, para 660. 26 ibid, para 633. 27 Stephan W Schill, The Multilateralization of International Investment Law (CUP 2009) 88. 28 UNCTAD, IIAs by Economy, ‘Côte d’Ivoire’<http://investmentpolicyhub.unctad.org/ IIA/CountryBits/50> accessed 5 June 2017. 29 UNCTAD, IIAs by Economy, ‘Ghana’ <http://investmentpolicyhub.unctad.org /IIA/CountryBits/79> accessed 5 June 2017. 30 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Ghana (22 March 1989) (‘Ghana–UK’) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1461> accessed 5 June 2017. 31 ibid, art 1(d)(ii). 32 See, for example, the right to self-determination and potential secession of Texas and Quebec: C Lloyd Brown-John, ‘Self-Determination, Autonomy and State Secession in Federal Constitutional and International Law’ (1999) 40 S Tex L Rev 567; Glen Anderson, ‘Secession in International Law and Relations: What Are We Talking About?’ (2013) 35 Loy LA Int'l & Comp L Rev 343; Roya M Hanna, ‘Right to Self-Determination in In Re Secession of Quebec’ (1999) 23 Md J Int'l L 213; Gregory Marchildon, Edward Maxwell, ‘Quebec’s Right to Secession under Canadian and International Law’ (1991–1992) 32 Va J Int'l L 583; Reference re Secession of Quebec, Judgement of the Supreme Court of Canada, 20 August 1998 [1998] 2 SCR 217. 33 See, for example, discussions about the SAR status of Hong Kong and Macau: Government of the Lao People’s Democratic Republic v Sanum Investments Ltd, Judgment of the Singapore High Court [2015] SGHC 15; Sanum Investments Ltd v Government of the Lao People’s Democratic Republic, Judgment of the Singapore Court of Appeal [2016] SGCA 57. 34 See, for example, the seven investment arbitrations commenced in relation to Crimean investments; Richard Happ and Sebastian Wuschka, ‘Horror Vacui: Or Why Investment Treaties Should Apply to Illegally Annexed Territories’ (2016) 33(3) J Int’l Arb 245–68 (‘Happ & Wuschka’). 35 Happ & Wuschka, ibid; Milano and Papanicolopulu (n 1). 36 David S Koller, ‘The End of Geography: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem’ (2014) EJIL 25, 25–29, 27–28. 37 Ian Brownlie, Principles of Public International Law (OUP 2003), 112-113. 38 Agreement between the Government of the Russian Federation and the Cabinet of Ministers of the Ukraine on the Encouragement and Mutual Protection of Investments (27 November 1998), art 1(1) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/2233> accessed 5 June 2017 (‘Russia–Ukraine’) [emphasis added]. 39 Agreement between the Government of the People’s Republic of China and the Government of the Republic of Ghana Concerning the Encouragement and Reciprocal Protection of Investments (22 November 1990): <http://investmentpolicyhub.unctad.org/Download/TreatyFile/737> accessed 5 June 2017 (‘China–Ghana’). 40 North American Free Trade Agreement (1993) (‘NAFTA’), annex 201.1 <https://www.nafta-sec-alena.org/Home/Texts-of-the-Agreement/North-American-Free-Trade-Agreement> accessed 27 July 2017. 41 Energy Charter Treaty (1994), art 1(10) <http://www.energycharter.org/fileadmin/ DocumentsMedia/Legal/ECTC-en.pdf> accessed 27 July 2017 (‘ECT’); NAFTA, ibid, annex 201.1; See also Agreement between the Government of the Republic of Singapore and the Government of the United Arab Emirates on the Promotion and Protection of Investments (24 June 2011), art 1(9) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/4859> accessed 27 July 2017 ; Free Trade Agreement between the Government of the People’s Republic of China and the Government of the Republic of Korea (1 June 2015), art 1.5 (Territorial Application) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/3462> accessed 27 July 2017. 42 Ghana–UK (n 30), art 1(d)(ii) [emphasis added]. 43 ibid, art 1(e)(i); Agreement between the Government of the Kingdom of Denmark and the Government of the Republic of Ghana concerning the Promotion and Protection of Investments (6 June 1995), art 1(4)(b) http://investmentpolicyhub.unctad.org/Download/ TreatyFile/1006> accessed 5 June 2017 (‘Denmark–Ghana’). 44 United Nations Convention on the Law of the Sea (1982) 1833 UNTS 3 (‘UNCLOS’). 45 ibid, art 15. 46 ibid, art 74. 47 ibid, art 83. 48 Ghana–UK (n 30), art 12 [emphasis added]. 49 Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Republic of Ghana (1 July 1991), art 1 (c) [emphasis added] <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1458> accessed 27 July 2017. 50 Statute of the International Court of Justice (1945) UN Treaty Collection, art 38(1) <https://treaties.un.org/doc/Publication/CTC/uncharter-all-lang.pdf> accessed 27 July 2017 . 51 Côte d’Ivoire–UK (9 October 1997), art 1 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/851> accessed 27 July 2017; Canada–Côte d’Ivoire (14 November 2015), art 1 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/3242> accessed 27 July 2017, ‘covered investment’; BLEU–Côte d’Ivoire (15 June 2013), art 13 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/347> accessed 27 July 2017; Ghana–Malaysia (18 April 1997), art 10 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1456> accessed 27 July 2017; Ghana–Netherlands (1 July 1991) (n 49), art 10 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1458> accessed 27 July 2017; Serbia–Ghana (7 July 2000), art 14 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/5164> accessed 27 July 2017; Ghana–Switzerland (16 June 1996), art 9 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/4815> accessed 27 July 2017; Ghana–UK (n 30), art 1. 52 China–Ghana (n 39), art 8. 53 Denmark–Ghana (n 43), art 1. 54 For example, 1 January 1957 specified in the South Africa–Tunisia Investment Treaty: Treaty between the Republic of South Africa and the Republic of Tunisia (signed 28 February 2002, not yet entered into force as of date of writing) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/5215> accessed 27 July 2017 (‘South Africa–Tunisia’); and the Treaty between the Republic of Mozambique and the Republic of South Africa (signed 6 June 1997, entered into force 28 July 1998) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/5192> accessed 27 July 2017 (‘Mozambique–South Africa’). 55 Agreement between the Government of the Republic of South Africa and the Government of the Russian Federation on the Promotion and Reciprocal Protection of Investments (signed 23 November 1998, entered into force 12 April 2000) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/3436> accessed 15 June 2015 (‘South Africa–Russia’). 56 Island of Palmas Case (Netherlands/US), Judgment of 4 April 1928 (1949) 2 UNRIAA 829, 845: ‘As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights.’ 57 ASEAN Comprehensive Investment Agreement (26 February 2009), art 29(3) <http://www.asean.org/storage/images/2013/economic/aia/ACIA_Final_Text_26%20Feb%202009.pdf> accessed 27 July 2017. 58 Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v Romania, ICSID Case No ARB/05/20, Decision on Jurisdiction and Admissibility (28 September 2008), paras 153–157. 59 Jan de Nul N.V. and Dredging International N.V. v Arab Republic of Egypt, ICSID Case No ARB/04/13, Decision on Jurisdiction (16 June 2006) (‘Jan de Nul v Egypt’), para 33. 60 Agreement between the Belgo-Luxembourg Economic Union on the one hand, and the Arab Republic of Egypt on the other hand, on encouragement and reciprocal protection of investments of 28 February 1999, art 12, cited in ibid, para 33. 61 ibid, para 116; Ping An Life Insurance Company, Limited and Ping An Insurance (Group) Company, Limited v The Government of Belgium, ICSID Case No ARB/12/29, Award (30 April 2015) (‘Ping An’), para 193. 62 Vienna Convention on the law of Treaties 1969, (1980) United Nations Treaty Series 332–512, art 28: ‘Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.’ 63 International Legal Commission, Draft Articles on State Responsibility (2001)’ (Yearbook of the International Law Commission, 2001, vol II, Part Two) (‘ILC Draft Articles of State Responsibility’), art 13, ‘International Obligation in Force for a State’: ‘An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.’ 64 Jan de Nul v Egypt (n 59), paras 114–122. 65 Ping An (n 61), para 194; ibid, paras 114–122; Sebastián Green Martínez, ‘Case Comment: Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v. Kingdom of Belgium - A Jurisdictional Black Hole Between Two BITs?’ (2017) 14 TDM 1. 66 ILC Draft Articles of State Responsibility (n 63), art 14; Extension in Time of the Breach of An International Obligation (Commentary, Report of the International Law Commission on the work of its 53rd session) 59–60, para 1; Mavrommatis Palestine Concessions, Judgment No 2, (1924) PCIJ, Series A, No 2, 35. 67 Empresas Lucchetti, S.A. Lucchetti, S.A. and Lucchetti Peru, S.A. v The Republic of Peru, ICSID Case No ARB/03/4, Award (7 February 2005) (‘Empresas v Peru’). 68 ibid, para 50. 69 CMS Gas Transmission Company v The Republic of Argentina, ICSID Case No ARB/01/8, Decision of the Tribunal on Objections to Jurisdiction (17 July 2003). 70 ibid, para 109. 71 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (OUP 2009) (‘Dolzer & Schreuer’) 100; Christoph Schreuer, ‘Investments, International Protection’, Max Planck Encyclopaedia of Public International Law (OUP 2013). 72 Ghana–Netherlands investment treaty (n 49) art 6. 73 Ghana/Côte d'Ivoire Provisional Measures, Ghana’s Written Statement <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_prov_meas/Vol._I_-_Written_Statement_of_Ghana_FINAL.pdf> accessed 27 July 2017 (‘Ghana/Côte d'Ivoire Provisional Measures, Ghana’s Written Statement’), para 15. 74 Ghana/Côte d'Ivoire Provisional Measures Order (n 6), para 48. 75 See, for example the Timor Sea Treaty 2002 in Francisco Pereira Coutinho and Francisco Briosa E Gala, ‘David and Goliath Revisited’ (2014) 10 Tex J Oil Gas & Energy L 429, 443–446. 76 Dolzer & Schreuer (n 71) 130; Nicolas Angelet, ‘Fair and Equitable Treatment’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law ( 2012) vol VII. 77 Ghana–UK investment treaty (n 30), art 3(1). 78 Neer v Mexico, Opinion, US-Mexico General Claims Commission, 15 October 1926 (1927) 21 AJIL 444. 79 Waste Management v Mexico, Final Award (30 April 2004), para 98. 80 Emilio Agustín Maffezini v The Kingdom of Spain, ICSID Case No ARB/97/7 (‘Maffezini v Spain’), Award on the Merits (13 November 2000), para 83; Metalclad Corporation v The United Mexican States, ICSID Case No ARB(AF)/97/1 (‘Metalclad v Mexico’), Award (30 August 2000). 81 MTD Equity Sdn. Bhd. and MTD Chile S.A. v Republic of Chile, ICSID Case No ARB/01/7, (‘MTD v Chile’), Award (25 May 2004), para 163. 82 Todd Weiler (ed), ‘Good Faith and Regulatory Transparency’, International Investment Law and Arbitration: Leading Cases (Cameron 2005) 701; Waste Management v Mexico (n 79), para 138; Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v Islamic Republic of Pakistan, ICSID Case No ARB/03/29 (‘Bayindir v Pakistan’), Decision on Jurisdiction (14 November 2005), paras 242–243. 83 Técnicas Medioambientales Tecmed, S.A. v The United Mexican States (‘Tecmed v Mexico’), Award (29 May 2003), para 162; Loewen Group, Inc and Raymond L. 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Prosper Weil, Perspective du droit de la délimitation maritime (Pedone 1988) 53. 107 Tanaka, ibid 139–149; Continental Shelf Case (Libya/Malta) [1985] ICJ Rep 15 (‘Libya/Malta’), para 49. 108 Constantinos Yiallourides, ‘Oil and Gas Development in Disputed Waters under UNCLOS’, (2016) 5 UCL J L J 59, 69; Libya/Malta, paras 27–28; North Sea Continental Shelf Cases (Germany/Denmark; Germany/Netherlands), Judgment [1969] ICJ Rep 3, paras 18–20. 109 Ghana/Côte d'Ivoire (n 25), para 521. 110 ibid. 111 ibid, para 522. 112 Kaiyan Kaikobad, Interpretation and Revision of International Boundary Decisions (CUP 2007) (‘Kaikobad’) 1–81. 113 Beagle Channel case (1978) 17 ILM 734. 114 Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) Order of 2 March 1990, 83 ILR 1; Kaikobad (n 112) 69. 115 Stefan Talmon, ‘The South China Sea Arbitration and the Finality of “Final” Awards’ (2017) 8 JIDS 388. 116 Arbitration between the Republic of Crotia and the Republic of Slovenia, Final Award (29 June 2017) <https://pcacases.com/web/view/3> accessed 27 July 2017; Sven Milekic, ‘Croatia Set to Ignore Ruling on Piran Gulf’ (29 June 2017) <http://www.balkaninsight.com/en/article/ stalemate-in-croatia-slovenia-sea-dispute-amid-court-decision-06-28-2017> accessed 27 July 2017. 117 Jamie Shookman, ‘Too Many Forums for Investment Disputes? ICSID Illustrations of Parallel Proceedings and Analysis’ (2010) 27 J Int’l Arb 361 (‘Shookman’); Gilles Cuniberti, ‘Parallel Litigation and Foreign Investment Dispute Settlement’ (2006) 21 (2) ICISD Rev 381 (‘Cuniberti’); August Reinisch, ‘The Issues Raised by Parallel Proceedings and Possible Solutions’ in Michael Waibel and others (eds), The Backlash against Investment Arbitration (Kluwer 2010) 113 (‘Reinisch’); Vaughan Lowe, ‘Res Judicata and the Rule of Law in International Arbitration’ (1996) 8 Afr J Int’l Comp L 38, 48 (‘Lowe’). 118 With the exception of the Sweden–Côte d’Ivoire investment treaty (3 November 1966) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/849> accessed 15 June 2017, which provides for state–state arbitration, art 7; and the Côte d’Ivoire–Netherlands investment treaty (8 September 1966), art 12 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/848> accessed 15 June 2017. 119 Ghana–UK (n 30), art 11. 120 Canada–Côte d’Ivoire (n 51), art 20. 121 Côte d’Ivoire–UK (n 51), art 8. 122 Côte d’Ivoire–Germany investment treaty (10 June 1968), art 11(6). <http http://investmentpolicyhub.unctad.org/Download/TreatyFile/846> accessed 15 June 2017. 123 China–Ghana (n 39), art 9. 124 Ghana–Netherlands (n 49), art 9. 125 Norvan Acquah, ‘Cote d'Ivoire Rejects Imposing of Equidistance Line in Final Arguments Today’ (B&FTOnline, 16 February 2017) <http://thebftonline.com/commodities/oil-gas/23030/cote-divoire-rejects-imposing-of-equidistance-line-in-final-arguments-today.html> accessed 27 July 2017. 126 Ghana/Côte d'Ivoire, Counter Memorial of Côte d'Ivoire (n 9), paras 9.33–9.39; Ghana/Côte d'Ivoire, Reply (n 12), paras 5.28–5.30; Ghana/Côte d'Ivoire, Rejoinder, paras 6.66–6.70; Ghana/Côte d'Ivoire, Judgment (n 25), paras 545–554. 127 Hanno Wehland, The Coordination of Multiple Proceedings in Investment Treaty Arbitration (OUP 2013), paras 2.65, 2.70, 3.75–3.77. 128 Hanno Wehland, ‘The Regulation of Parallel Proceedings in Investor-State Disputes’ (2016) 31 (3) ICSID Rev 576, 577–78 (‘Wehland’); CME v Czech Republic, paras 419, 525; Wena Hotels v Egypt (n 94), Decision on Annulment (28 January 2002), para 49; Azurix v Argentina (n 96), para 101; Camuzzi International SA v Argentine Republic, ICSID Case No ARB/03/2, Decision on Objection to Jurisdiction (11 May 2005), para 91; Sempra Energy International v Argentine Republic, ICSID Case No ARB/02/16, Decision on Objections to Jurisdiction (11 May 2005), para 102; Bayindir v Islamic Republic of Pakistan, ICSID Case No ARB/03/29, Decision on Jurisdiction (14 November 2005), para 270; Robin Hansen, ‘Parallel Proceedings in Investor-State Treaty Arbitration: Responses for Treaty Drafters, Arbitrators and Parties’ (2010) 73 MLR 523, 529; Reinisch (n 117) 115; Cuniberti (n 117) 395; Lowe (n 117) 48; Shookman (n 117) 362; Jan Ole Voss, The Impact of Investment Treaties on Contract Between Host States and Foreign Investors (Martinus Nijhoff 2011) 281. 129 Wehland, ibid 580–88; Filip de Ly and Audley Sheppard, ‘ILA Interim Report on Res Judicata and Arbitration’, (Berlin Conference, 2004) <http://www.law.columbia.edu/sites/default/files/microsites/columbia-arbitration-day/files/ila_interim_report_on_res_judicata_2004.pdf> accessed 5 June 2017; Filip de Ly and Audley Sheppard, ‘ILA Final Report on Res Judicata and Arbitration’ (2009) 25 (1) Arb Intl 35, 37. 130 Oral proceedings were heard on 6 February 2017. 131 Ghana/Côte d'Ivoire, Provisional Measures Order (n 6), para 108. © The Author(s) 2017. Published by Oxford University Press on behalf of the AIPN. All rights reserved. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of World Energy Law and Business Oxford University Press

Investment disputes arising out of areas of unsettled boundaries: Ghana/Côte d’Ivoire

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Abstract

Abstract When investments have been made in an area in which a state asserts its sovereignty, but its boundaries later shift, which investment protection treaties apply? To illustrate this issue, this article focuses on the petroleum licences in the Atlantic Ocean between Ghana and Côte d’Ivoire as an investment, which were recently the subject of international proceedings on delimitation of the maritime boundary. This uncertainty arises regardless of how the International Tribunal for the Law of the Sea would have delimited the maritime boundary. Potential issues arising from investment treaties include: the definition of an investor, the definition of territory and the timing of the investment. Depending on how the Ghana/Côte d’Ivoire boundary disputes were resolved, investment arbitrations could be commenced against either, or both, of the states. The problems highlighted in this article are relevant to many other unsettled territorial and maritime boundaries in the world which may trigger investment disputes. 1. INTRODUCTION Regardless of what delimitation lines the International Tribunal for the Law of the Sea (ITLOS) Special Chamber drew, the uncertainty surrounding the hydrocarbon concession blocks between Ghana and Côte d’Ivoire remains an issue that pervades other land and maritime disputes.1 There are currently more than 150 unresolved interstate disputes concerning international boundaries on land or at sea. The Ghana/Côte d’Ivoire dispute focuses on the risks faced by companies developing hydrocarbon reserves in disputed areas. The chief risk is that a licence previously granted to investors will be later contested.2 However, this article is equally relevant to other investment disputes such as tourism resorts on contested islands.3 In its current state of development, international investment law is made up of a network of approximately 3300 mostly bilateral treaties. Almost all states have investment treaties with other states. Even North Korea has 24 investment treaties currently in force.4 It is a system premised on a state with a relatively stable existence, agreeing usually by treaty, to protect on a reciprocal basis, the investments made by another state’s nationals within its boundaries. The problem arises when an investor from a third state makes an investment in an area of unsettled boundaries, and the investment is affected by a state’s measures or an international court or tribunal delimits that area as belonging to another state. Which state’s investment treaty applies? Most importantly, what rules of international law should govern this question? The Ghana/Côte d’Ivoire maritime boundary delimitation proceedings5 determined the fate of the investors holding oil concessions in the disputed area. On 23 September 2017, ITLOS Special Chamber issued its judgment on the delimitation. This article borrows the context of the Ghana/Côte d’Ivoire dispute to illustrate the international legal issues arising out of investments made in areas of disputed sovereignty. First, this article briefly discusses the issues that arise regarding investments in areas of unsettled boundaries under investment treaties. The most relevant issues are the treaty’s definition of ‘investor’, ‘territory’ and the timing of the investment. Secondly, this article will explore which substantive investment protection obligations could apply to investments affected by such a maritime boundary dispute. Thirdly, this article discusses the implications of a boundary delimitation. 2. GHANA/CÔTE D’IVOIRE MARITIME BOUNDARY DISPUTE The maritime boundary between Ghana and Côte d’Ivoire had never been formally delimited.6 Yet it was undeniable that there was already an ‘enormous investment in the Deepwater Tano Concession Block, including the TEN (Tweneboa-Enyenra-Ntomme) … fields, which has taken place over the last nine years (since 2006)’.7 More than US$4.5 billion had been invested.8 For many years, Ghana had conducted oil exploration and production in the area of the Gulf of Guinea that was disputed between Ghana and Côte d’Ivoire. Since 2008, Ghana claimed that the western limit of its oil blocks created under these conditions should be adopted as the maritime boundary.9 On the other hand, Côte d’Ivoire claimed that Ghana failed to pay heed to Côte d’Ivoire’s repeated calls to cease all activity in the disputed area.10 Côte d’Ivoire claimed ‘the right to select the oil companies to conduct exploration and exploitation operations and freely to determine the terms and conditions in its own best interest and in accordance with its own requirements with respect to oil and the environment’.11 Côte d’Ivoire also claimed compensation for any violations of such rights.12 Côte d’Ivoire’s Minister of Petroleum and Energy was appointed its agent in the proceedings, emphasizing that the main interests of the states in the dispute were the concessions for petroleum exploration.13 After consultations with the President of the ITLOS on 2–3 December 2014, Ghana and Côte d’Ivoire entered a special agreement on 12 January 2015 to submit their maritime boundary delimitation to a Special Chamber of ITLOS.14 In order to protect its claimed rights, Côte d’Ivoire requested urgent provisional measures on 27 February 2015. Côte d’Ivoire requested the ITLOS Special Chamber to order Ghana to: take all steps to suspend all ongoing oil exploration and exploitation operations in the disputed area, refrain from granting any new permit for oil exploration and exploitation in the disputed area, take all steps necessary to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area from being used in any way whatsoever to the detriment of Côte d’Ivoire, and, generally, take all necessary steps to preserve the continental shelf, its superjacent waters and its subsoil, and desist and refrain from any unilateral action entailing a risk of prejudice to the rights of Côte d’Ivoire and any unilateral action that might lead to aggravating the dispute.15 On 25 April 2015, the ITLOS Special Chamber decided that: Ghana shall take all necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area as defined in paragraph 60; Ghana shall take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Côte d’Ivoire; Ghana shall carry out strict and continuous monitoring of all activities undertaken by Ghana or with its authorization in the disputed area with a view to ensuring the prevention of serious harm to the marine environment; The Parties shall take all necessary steps to prevent serious harm to the marine environment, including the continental shelf and its superjacent waters, in the disputed area and shall cooperate to that end; The Parties shall pursue cooperation and refrain from any unilateral action that might lead to aggravating the dispute.16 Apart from the orders in aid of protecting the marine environment, the first two provisional measures indirectly prevented investors in the oil concessions from operating and benefiting from their investment. In fact, the concerned operators of the oil concessions sent representatives to attend the hearing on the application for provisional measures. Two of the ITLOS orders are of particular relevance to investors. Ghana must take steps to ensure that the investors do not undertake any new drilling in the disputed area.17 Ghana must also take steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Côte d’Ivoire.18 On 14 November 2016, Côte d’Ivoire submitted in its Counter-Memorial that despite the provisional measures ordered by the ITLOS Special Chamber including to refrain from drilling activities in the disputed area,19 Ghana was not complying with the order for provisional measures.20 Côte d’Ivoire further submitted that Ghana commenced a second drilling phase scarcely a few weeks after the provisional measures order.21 In response, Ghana submitted that it had required its operators to comply with the provisional measures order and asked the companies to keep adequate records of the steps taken to comply.22 Although the investors were not a party to the ITLOS proceedings,23 the Chief Operating Officer of Tullow Oil submitted a statement to the ITLOS Special Chamber explaining that prior to the provisional measures order, Tullow had already drilled 11 wells, of which ten were to be used for first oil production. The 11th well was intended to be used as a water injector well for improving production, and had been both spudded and drilled to a very substantial depth. Since it was a pre-drilled well, Tullow merely completed that well by drilling it out to its final depth and performing other completion activities to prepare the TEN fields for production.24 Thus, at least one oil company Tullow, was ready for production and to finally reap the benefits of its investment. Its ability to exploit its investment, however, depended on the decision on delimitation of a maritime boundary between Ghana and Côte d’Ivoire by the ITLOS Special Chamber. Finally, on 23 September 2017, the ITLOS Special Chamber issued its judgment delimiting the maritime boundary, and finding that Ghana’s activities did not violate Côte d’Ivoire’s sovereign rights, did not breach its obligations to exercise restraint pending delimitation, and did not violate the prescribed provisional measures.25 The ITLOS Special Chamber found that luckily, none of Ghana’s earlier hydrocarbon activities had taken place in any area, which was later delimited to be within Ivorian’s maritime area.26 But what if the hydrocarbon concessions granted earlier by Ghana were later found to be falling within Côte d’Ivoire’s rightful maritime area? 3. POTENTIAL ISSUES ARISING FROM INVESTMENT TREATIES A typical investment treaty contains state obligations not to expropriate investments without compensation, obligations to treat investments in a fair and equitable manner, non-discrimination and full protection and security.27 Does ‘the enormous investment in the Deepwater Tano Concession Block’ benefit from protection by an investment treaty? Côte d’Ivoire has approximately seven bilateral investment treaties with other states currently in force.28 Similarly, Ghana has approximately eight bilateral investment treaties with other states currently in force.29 Whether a state’s investment protection obligations apply to a particular investment depends on the scope of several definitions within the treaty, including ‘investor’, ‘territory’ and ‘investment’. Definition of an ‘Investor’ The first issue is one of jurisdiction ratione personae. Investors could be individuals with foreign and multiple nationalities or companies incorporated in different states. Their nationality could depend on at least two different legal regimes—domestic and international law. In the case of disputed maritime boundaries, the place of incorporation or registration of a company is unlikely to be affected. In the case of Ghana/Côte d’Ivoire, for example, Tullow Oil is based in the UK. Under the Ghana–UK investment treaty,30 a corporate investor who is entitled to investment protection in Ghana includes ‘corporations, firms and associations incorporated or constituted under the law in force in any part of the United Kingdom’.31 In the case of disputed land boundaries, however, the issue is more delicate. Take the example of a municipal area, such as Crimea which was recognized as part of Ukraine, governed by a central government from Kiev. If a municipal area such as Crimea were to secede,32 or to become part of another state such as the government of the Russian Federation by treaty33 or annexation34, the companies incorporated in Crimea may have recourse against the Russian Federation by maintaining their Ukrainian nationality at the time of incorporation, or recourse against the government of Ukraine, by gaining Russian nationality. There are no easy answers to this.35 Definition of ‘Territory’ The second issue is one of jurisdiction ratione materiae. Begin with the observation that ‘law, international law in particular, creates its own geography… its geography is that of a world of ideas which is imposed upon the physical world’.36 Regardless of a state’s military presence or physical control over a particular geography, its sovereignty is asserted in the universe of investment law, by imposing a definition of its ‘territory’ in its investment treaty. The definition of ‘territory’ determines the tribunal’s jurisdiction. As Brownlie accurately explains: Ultimately territory cannot be distinguished from jurisdiction for certain purposes. Both terms refer to legal powers, and, when a concentration of such powers occurs, the analogy with territorial sovereignty justifies the use of the term ‘territory’ as a form of shorthand.37 Some investment treaties are designed to cover investments only in land territory. For example, the Russia–Ukraine investment treaty defines ‘investment’ as ‘all kinds of property and intellectual values, which are put in by the investor of one Contracting Party on the territory of the other Contracting Party in conformity with the latter's legislation’.38 Some others do not define their ‘territory’ at all.39 Even within the same investment treaty, each state often defines the scope of their ‘territory’ in a unique manner. For example, in the NAFTA, Mexico, Canada and the USA all have separate and distinct definitions of ‘territory’.40 In investment treaties, the definition of ‘territory’ is a misnomer—it covers both the state’s land and maritime areas.41 For example, the ‘territory’ of the UK is defined in the Ghana–UK investment treaty as: Great Britain and Northern Ireland, including the territorial sea and any maritime area situated beyond the territorial sea of the United Kingdom which has been or might in the future be designated under the national law of the United Kingdom in accordance with international law as an area within which the United Kingdom may exercise rights with regard to the seabed and subsoil and the natural resources and any territory to which this Agreement is extended in accordance with the provisions of Article 12.42 The ‘territory’ of Ghana is defined in the same investment treaty as: the present territory of the Republic of Ghana including the territorial sea and any maritime area situated beyond the territorial sea of Ghana which has been or might in the future be designated under the national law of Ghana in accordance with international law as an area within which Ghana may exercise rights with regard to the sea-bed and subsoil and the natural resources.43 Territorial sovereignty is fundamentally different from maritime sovereignty. While territorial sovereignty gives the state control over all land and airspace within its borders, maritime sovereignty is governed by the substantive provisions of the United Nations Convention on the Law of the Sea (UNCLOS).44 Many, but not all, investment treaties define their ‘territory’ expressly in accordance with international law. According to UNCLOS, a state’s maritime sovereignty is divided into four basic zones: its internal waters which are granted rights equivalent to the state’s rights over land territory, the territorial sea of 12 nautical miles45 within which the state exercises full sovereignty, the exclusive economic zone (EEZ) of 200 nautical miles within which the state exercises sovereign rights over the water column,46 and the continental shelf (CS) in which the state exercises rights to the seabed including its minerals based on its geographical extension.47 Investment claims relating to sovereign rights in the EEZ and CS must be assessed differently from sovereignty over land, islands and the territorial sea. Treaty definitions of ‘territory’ could also be designed to be flexible over time. In many of the UK’s investment treaties, its definition of ‘territory’ can be extended by a specified act: Territorial Extension At the time of ratification of this Agreement, or at any time thereafter, the provisions of this Agreement may be extended to such territories for whose international relations the Government of the United Kingdom are responsible, as may be agreed between the Contracting Parties in an Exchange of Notes.48 Furthermore, a state’s unilateral assertion of the scope of its boundaries is not the last word on the matter. Its claimed boundary is checked by legality under international law. For example, the Ghana–Netherlands investment treaty recognizes that: ‘the term “territory” includes the maritime areas adjacent to the coast of the State concerned, to the extent to which that State may exercise sovereign rights or jurisdiction in those areas according to international law.’49 International law, at least between the parties, is partly made by the decisions of courts and tribunals.50 When the status of a territory or maritime area thus changes in international law, what is its effect on the states’ investment treaties? Timing of the investment The third issue is one of jurisdiction ratione temporis. Two dates are most relevant: (i) the date the investment was ‘made’; and (ii) the date the dispute arose. First, many of Ghana and Côte d’Ivoire’s existing investment treaties protect both existing and future investments.51 For example, the China–Ghana investment treaty contains a provision expressly extending its application to investments ‘which are made prior to or after’ the entry into force of the investment treaty.52 Similarly, the Denmark-Ghana investment treaty defines ‘investment’ as including ‘all investments, whether made before or after the date of entry into force of this Agreement’.53 This means that in the context of Ghana/Côte d’Ivoire, the date that the investment was ‘made’ is not likely to be a critical issue. In contrast, some treaties exclude investments made prior the entry into force of the investment treaty, or prior to a specified date.54 For example, the Russia–South Africa (23 June 2000) investment treaty extends protection only to investments made after 1 January 1987.55 If an investment is ‘compulsorily transferred’ from one state’s side of a boundary to another state’s side, the question of what date the investment was deemed to have been made could be critical.56 For example, for an existing investment made before 1 January 1987 in the territorial seas around Crimea, a South African investor wishing to bring proceedings against Russia for measures taken to damage the investment after 2015 would have to address the issue whether such an investment would be deemed to have been made prior to 1 January, 1987, excluded from the scope of the Russia–South Africa investment treaty’s protection. On the other hand, if it could be argued that the investment was ‘made’ in Russia later in 2014, at the time that the state boundaries shifted. Secondly, the date the dispute is deemed to have arisen will be critical to whether the investment arbitration tribunal has jurisdiction. This is particularly so where treaties expressly exclude disputes arising prior to the entry into force of the treaty. Some treaties contain an express exclusion of disputes arising prior to the entry into force of the treaty. For example, the ASEAN Comprehensive Investment Agreement states: ‘This Section shall not apply to claims arising out of events which occurred, or claims which have been raised prior to the entry into force of this Agreement.’57 Such limitations gave rise to objections to jurisdiction ratione temporis in several investment arbitrations.58 In Jan de Nul v Egypt,59 the investment treaty provided that it would apply to investments prior to or after its entry into force, but would ‘not be applicable to disputes having arisen prior to its entry into force’.60 The tribunal decided that the purpose of such limitations in investment treaties was to ‘exclude disputes which have crystallised before the entry into force of the BIT’.61 It also referred to the temporal principle in Article 28 of the VCLT62 and Article 13 of the ILC Articles on State Responsibility.63 However, in Jan de Nul v Egypt, it was possible to distinguish the dispute on violations of the investment treaties from the disputes before the Egyptian courts.64 Since the judgment of the Egyptian court was rendered after 2002, the substantive provisions of the 2002 BIT were applicable. Arguably, this decision illustrates the point that in theory a claim may be made under a later BIT in respect of breaches of an earlier BIT, where the dispute arises after the later BIT has come into force.65 Such a breach should not be a continuing one.66 In Empresas v Peru,67 the investment treaty stated that it would not apply to ‘differences or disputes that arose prior to its entry into force’. The investor owned a business manufacturing and selling pasta near a protected wetland. The municipal authorities first revoked the plant’s permits in late 1997 for environmental concerns, but the Claimants successfully challenged the measure in Peru. After the entry into force of the Chile–Peru BIT in August 2001, the permits were once again revoked. The tribunal stated that ‘the critical element in determining the existence of one or two separate disputes is whether or not they concern the same subject matter’. The tribunal interpreted both events as an ongoing dispute because the earlier dispute ‘had come to an end or had not as yet crystallized into a dispute’.68 This wide interpretation of a dispute was also followed in CMS v Argentina.69 The tribunal focussed on the fact that the measures covered the same subject matter, therefore, ‘the fact that they may originate from different sources or emerge at different times does not necessarily mean that the disputes are separate and distinct’.70 4. BREACH OF INVESTMENT PROTECTION OBLIGATIONS Layered over these definitions of nationality, land sovereignty and maritime sovereignty and timing of the investment, are issues relating to investment protection obligations. State measures affecting investments, depending on what the measures are, could potentially constitute an unlawful expropriation, a breach of obligations regarding fair and equitable treatment, non-discrimination or full protection and security. Unlawful expropriation Most investment treaties require the state not to deprive an investor of its property rights without a public purpose justification, due process, ensuring non-discrimination and with payment of prompt, adequate and effective compensation.71 For example, the Ghana–Netherlands investment treaty states:72 1. Investments of nationals of either Contracting Party shall not be nationalised, expropriated or subjected to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as ‘expropriation’) in the territory of the other Contracting Party unless the following conditions are complied with: a. the measures are taken for a public purpose related to the internal needs of that Contacting Party, on a non-discriminatory basis and under due process of law; b. the measures are accompanied by provision for the payment of compensation amounting to the genuine value of the investment expropriated immediately before the expropriation or before the impending expropriation became public knowledge, whichever is the earlier; c. payments of compensation shall be made without undue delay and shall be freely transferable to the country designated by the claimants concerned and in the currency of the country of which the claimants are nationals or in any freely convertible currency accepted by the claimants; and d. if the compensation is not paid within six months after its determination, it shall from that date attract interest at the normal commercial rate until the date of payment. 2. The national affected shall have the right, under the law of the Contracting Party making the expropriation, to prompt determination of the amount of compensation either by law or by agreement between the parties and to prompt review, by a judicial or other independent authority of that Party, of his case and of the valuation of his investment in accordance with the principles set out in paragraph (1) of this Article, without prejudice to the procedure contained in Article 9 of this Agreement. In Ghana/Côte d’Ivoire, Ghana alleged that Côte d’Ivoire constructed a manifestly flawed and deceptive new equidistance line so that Ghana’s concessions and oil fields would appear to fall partially on Côte d’Ivoire’s side.73 If the ITLOS Special Chamber had drawn a delimitation line following Côte d’Ivoire’s ‘new equidistance line’, resulting in exploitation-ready oil fields falling within Côte d’Ivoire boundaries, the investment would then fall within the territory of Côte d’Ivoire. Côte d’Ivoire had expressed its desire to exercise ‘the right to select the oil companies to conduct exploration and exploitation operations and freely to determine the terms and conditions in its own best interest and in accordance with its own requirements with respect to oil and the environment’.74 If Côte d’Ivoire then failed to recognise the existing investor’s oil concessions and rights to exploit these fields in the future, it could give rise to a claim for unlawful expropriation. In a different scenario, if Ghana entered into a negotiated boundary75 ceding the areas with several existing oil fields to Côte d’Ivoire, an aggrieved investor could bring a claim against Ghana for an unlawful expropriation. Fair and equitable treatment Most investment treaties provide for fair and equitable treatment of foreign investments.76 It is the most frequently invoked obligation in investment treaty disputes. For instance, the UK–Ghana investment treaty provides:77 Investments of nationals or companies of each Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party. Fair and equitable treatment traces its roots to the Neer case: ‘an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency’.78 Jurisprudence has shaped the standard of fair and equitable treatment to generally prohibit ‘conduct is arbitrary, grossly unfair, unjust or idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice, or involves a lack of due process leading to an outcome which offends judicial propriety—as might be the case with a manifest failure of natural justice in judicial proceedings or a complete lack of transparency and candour in an administrative process’.79 Fair and equitable treatment may also be interpreted to include the requirement that the state act in a transparent manner,80 consistently,81 in good faith,82 and with due process.83 The Canada–Côte d’Ivoire investment treaty provides a detailed obligation of transparency:84 1. Each Party shall ensure that its laws, regulations, procedures, and administrative rulings of general application respecting a matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Party to become acquainted with them. 2. To the extent possible, each Party shall: a. publish in advance any measure referred to in paragraph 1 that it proposes to adopt; and b. provide interested persons and the other Party a reasonable opportunity to comment on that proposed measure. 3. Upon request by a Party, the other Party shall provide information on a measure that may have an impact on a covered investment. Ghana also alleged that Côte d’Ivoire engaged in disparaging and unjustified attacks on the transparency of Ghana’s oil and gas practices and the technological competency of Ghana’s concession-holders.85 If Côte d’Ivoire had been awarded the maritime area containing the existing hydrocarbon investments, but later appeared to favour its own oil companies or concessionaire, this could give rise to a claim of breach of fair and equitable treatment, non-discrimination or national treatment. Non-discrimination, most favoured nation and national treatment Non-discrimination and the prohibition of arbitrary behaviour are regarded as a fundamental aspect of international investment law.86 Non-discrimination is often a stand-alone clause in investment treaties. For example, the Ghana–UK investment treaty87 and Côte d’Ivoire–UK investment treaty88 both state in almost identical wording: Neither Contracting party shall, in any way, impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposal of investments in its territory of nationals or companies of the other Contracting Party. The obligation not to discriminate is sometimes tied to fair and equitable treatment, national and MFN treatment. For example, the China–Ghana investment treaty provides that:89 1. Investments and activities associated with investments of investors of either Contracting State shall be accorded equitable treatment and shall enjoy protection in the territory of the other Contracting State. The treatment and protection referred to in Paragraph 1 of this Article shall not be less favourable than that accorded to investments and activities associated with such investments of investors of a third State. 2. The treatment and protection referred to in Paragraph 1 of this Article shall not be less favourable than that accorded to investments and activities associated with such investments of investors of a third State. National Treatment is described in the Canada–Côte d’Ivoire investment treaty as follows: 1. Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory. 2. Each Party shall accord to covered investments treatment no less favourable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment in its territory. 3. The treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a sub-national government, treatment accorded, in like circumstances, by that subnational government to investors, and to investments of investors, of the Party of which it forms a part. Ghana sent letters to its oil concessionaires informing them of the provisional measures order, requiring its operators to comply with the provisional measures order and asking the companies to keep adequate records of the steps taken to comply with the provisional measures order.90 A halt to drilling is likely to impair the management, maintenance, use, enjoyment or disposal of the investment. The impairment of the ability of the operators to realise the fruits of their investment by exploiting the oil wells could give rise to a claim if Ghana acted in a manner that is unreasonable or discriminatory.91 Côte d’Ivoire claimed ‘the right to select the oil companies to conduct exploration and exploitation operations and freely to determine the terms and conditions in its own best interest and in accordance with its own requirements with respect to oil and the environment’.92 If an oil field or a part of an oil field was determined to fall within the territorial seas of Côte d’Ivoire, an investor with UK nationality owning or operating that oil field would prima facie be entitled to protection under the Côte d’Ivoire–UK investment treaty. If Côte d’Ivoire proceeded to select new oil companies ‘in its own best interest and in accordance with its own requirements’, any arbitrariness or discriminatory effect could give rise to a claim of breach of fair and equitable treatment, national treatment or most-favoured nation treatment. Full protection and security The Ghana–Netherlands investment treaty provides that ‘each Contracting Party shall accord to such investments full security and protection which in any case shall not be less than that accorded either to investments of its own nationals or to investments of nationals of any third State, whichever is more favourable to the national concerned’.93 Generally, full protection and security is interpreted as a state’s obligation to exercise due diligence in protecting the physical security of the investment.94 The Canada–Côte d’Ivoire investment treaty explains that ‘For greater certainty, the obligation to accord full protection and security in accordance with paragraph 1 is an obligation requiring each Party to take all measures reasonably necessary to ensure the protection and security of the covered investment.’95 A claim may be brought against Ghana for a failure to accord the investment full protection and security if Ghana failed to protect an oil field from physical damage, destruction or other interferences with its operation. Often, full protection and security extends to oblige the State to maintain legal or commercial security.96 Such legal security may be interpreted as requiring the state to ‘ensure that neither by amendment of its laws nor by actions of its administrative bodies is the agreed and approved security and protection of the foreign investor’s investment withdrawn or devalued’.97 Full protection and security has also been interpreted as a ‘guarantee to stability in a security environment, both physical, commercial and legal’.98 The oil companies had been investing billions of dollars in prospecting and exploration activities for about nine years, arguably in reliance of the legal security provided by Ghana’s concessions. This could generate legitimate expectations on the part of the investor that Ghana would ensure the legal framework for operations of the oil fields would not be destabilized. 5.IMPLICATIONS OF A BOUNDARY DELIMITATION Articles 74(1) and 83(1) of UNCLOS state: ‘The delimitation of the exclusive economic zone [and continental shelf] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution’.99 According to established jurisprudence in maritime delimitation, the International Court of Justice’s judgment should be based primarily on the geographical features of both states, generally following the three-step delimitation methodology100 as set out in the Black Sea case.101 Maritime boundary delimitation jurisprudence is clear that existing oil concessions have little or no weight on the court or tribunal’s decision: [A]lthough the existence of an express or tacit agreement between the parties on the siting of their respective oil concessions may indicate a consensus on the maritime areas to which they are entitled, oil concessions and oil wells are not in themselves to be considered as relevant circumstances justifying the adjustment or shifting of the provisional delimitation line.102 The court or tribunal’s delimitation would be a substantive finding of international law. Unless otherwise stated, a decision on sovereignty may operate retroactively.103 For instance, in the Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan, the ICJ judged in 2002 that ‘Malaysia has title to Ligitan and Sipadan on the basis of the effectivités’ asserted in 1962 and 1963.104 Similarly, in Guinea Bissau v Senegal, the arbitral tribunal decided in 1989 that the States were bound by the maritime boundary agreed in the colonial 1960 treaty, which the states succeeded to in 1973.105 Furthermore, the process of delimitation may be distinct from the question of entitlement to the continental shelf itself. Legal title has to do with defining the basis on which a State is legally empowered to exercise rights and jurisdiction over the maritime areas adjacent to its coasts.106 On the basis of the legal title of the distance criterion, jurisdiction of coastal states is generated by their coasts.107 In other words, maritime delimitation does not determine what is a state’s entitlement to a continental shelf, but rather delimitation draws a dividing line between areas which ‘already appertain’ to one or other of the states.108 On the other hand, the ITLOS Special Chamber in Ghana/Côte d’Ivoire took a different approach to the effect of a delimitation. While both Ghana and Cote d'Ivoire submitted that a delimitation was merely declarative, the Special Chamber emphasized that its delimitation was constitutive. In a case of overlapping claims, both states have an entitlement to the relevant continental shelf on the basis of their relevant coasts, but only a legal delimitation establishes which part of the continental shelf under dispute appertains to which state.109 Although the judgment gives one state's entitlement priority over the other,110 before the judgment was delivered, maritime activities undertaken by a state in an area later attributed to another state by an international judgment cannot be considered to be in violation of the sovereign rights of the latter state if the claims were made in good faith.111 Complicating matters further, an ICJ judgment or arbitral award is subject to various challenges on the grounds of excess of jurisdiction, nullity, revision or interpretation. Many delimitation disputes have the propensity to continue even after treaties have been entered into or third party decisions have been rendered.112 For instance, the tribunals in the Beagle Channel case113 and Guinea-Bissau v Senegal were requested to pronounce on how far the maritime boundary had been determined by earlier treaties.114 More recently, in the South China Sea arbitration, China has declared that it will treat the arbitral award as a ‘nullity’,115 and in the Croatia/Slovenia arbitration, Croatia has indicated its intention not to abide by the arbitral tribunal’s delimitation.116 Both Ghana’s and Côte d’Ivoire’s investment treaties contain investment protection obligations. A foreign investor, depending on its nationality, could potentially commence several parallel arbitrations alleging breaches of the treaty obligations described above.117 Ghana and Côte d’Ivoire have given their consent to investor–state arbitration in almost all their investment treaties currently in force,118 including the Ghana–UK investment treaty,119 the Canada–Côte d’Ivoire investment treaty,120 the Côte d’Ivoire–UK investment treaty,121 the Côte d’Ivoire–Germany investment treaty,122 the China–Ghana investment treaty123 and the Ghana–Netherlands investment treaty.124 If ITLOS had decided that rights to the maritime areas where Ghana had licensed petroleum blocks rightfully belong to Côte d’Ivoire,125 it would undeniably affect the investor’s licences. As part of the delimitation dispute, the ITLOS could also have decided that Ghana’s past issuance of licences violated Côte d’Ivoire’s rights under international law if they were deemed not issued in good faith.126 Ghana’s investment protection obligations may be triggered, especially with regard to the investor’s legitimate expectations. At the same time, would the ITLOS’s delimitation justify the application of Côte d’Ivoire’s investment treaty to the investment retroactively? Investors are frequently in a position to assert multiple parallel claims arising under various legal instruments such as investor–state contracts, the law of the host state, international treaties and general international law.127 However, parallel proceedings risk double recovery, conflicting outcomes and legal uncertainty, increased costs and investors’ abuse of process to increase their chances of success.128 Complicated judicial mechanisms to regulate parallel proceedings are being developed including jurisdiction-regulating mechanisms, agreed coordination mechanisms, hierarchical mechanisms, first-in-time mechanisms, and general coordination mechanisms.129 Yet, the problems presented by an investment dispute arising from an area of unsettled boundaries presents a peculiar type of parallel proceedings. In these circumstances, what legal rules should govern? 6. CONCLUSION Pending the decision of ITLOS between the Order on Provisional Measures of 25 April 2015 and the Judgment on maritime delimitation on 23 September 2017,130 investors who had commenced oil exploration in the area of unsettled maritime zones were indirectly ordered not to conduct any further drilling.131 The damages caused through business interruption have not been publicly quantified. Investment claims could also potentially be commenced in relation to the effects of provisional measures, depending on ripeness and admissibility. The Ghana/Côte d’Ivoire dispute illustrates only some of the potential issues, which could arise in relation to the conduct of international proceedings in the context of unsettled boundaries. Identifying a general rule of international law that could harmonize the various competing international law regimes is important because of its potential application to other land and maritime disputes. Footnotes 1 ‘Mapping Every Disputed Territory in the World’ (Metrocosm, 20 November 2015) <http://metrocosm.com/mapping-every-disputed-territory-in-the-world/> accessed 10 November 2017; Richard Happ and Sebastien Wuschka, ‘Horror Vacui: Or Why Investment Treaties Should Apply to Illegally Annexed Territories’ (2016) 33(3) J Int’l Arb 245; Enrico Milano and Irini Papanicolopulu, ‘State Responsibility in Disputed Areas on Land and at Sea’ (2011) ZaöRV 71 (‘Milano & Papanicolopulu’); Arbitration Under the Timor Sea Treaty (Timor-Leste v Australia), Permanent Court of Arbitration, PCA Case No 2013–16 < http://www.pca-cpa.org/showpage.asp?pag_id=1403> accessed 5 June 2017; Conciliation between the Democratic Republic of Timor-Leste and the Commonwealth of Australia, PCA Case 2016–10, Decision on Competence, paras 5–12; Agreement Relating to the Unitisation of the Sunrise and Troubadour Fields [2007] (ATS 11, 23 Feb 2007), <http://www.austlii.edu.au/au/other/dfat/treaties/2007/11.html> accessed 5 June 2017; Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World (Brill 2005). 2 See, for example, disputes referred to as ‘Kenya / Somalia, South China Sea, Cyprus / Turkey, Guyana / Venezuela, Timor Gap, The Faulkands / Malvinas’ in Nigel Blackaby and Ben Juratowitch, ‘Hydrocarbons in Disputed Areas’ (2015) 44 (4) ILN 1; Xinhua News Agency, ‘China Succeeds in Mining Combustible Ice in South China Sea’ Xinhua News Agency(18 May 2017) <http://www.shanghaidail y.com/nation/China-succeeds-in-mining-combustible-ice-in-South-China-Sea/shdaily.shtml> accessed 31 May 2017; Marie-Christine Aquarone, ‘The 1985 Guinea/Guinea‐Bissau Maritime Boundary Case and Its Implications’ (1995) 26 (4) Ocean Dev & Int’l L 413; Saadia Bhatty and Nefeli Lamprou, ‘Pitfalls of Investing in Sub-Saharan African Regions with Unsettled Boundaries: How Foreign Investors May Minimize and Manage Investment Risk’ (2016) 13 (4) TDM 3. 3 ‘Manila Wants South China Sea Outpost to be Tourism Draw’ Straits Times (17 May 2017 <http://www.straits times.com/asia/se-asia/manila-wants-s-china-sea-outpost-to-be-tourism-draw> accessed 31 May 2017. 4 UNCTAD, IIAs by Economy, ‘Democratic People’s Republic of Korea’ <http://investmentpolicyhub.unctad.org/IIA/CountryBits/110#iiaInnerMenu> accessed 5 June 2017. 5 Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire) ITLOS Case No 23 <https://www.itlos.org/en/cases/list-of-cases/case-no-23/> accessed 10 November 2017 (‘Ghana/Côte d'Ivoire’). 6 Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire) ITLOS Case No 23 (Provisional Measures) (‘Ghana/Côte d'Ivoire Provisional Measures’) Order (25 April 2015), para 52 <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_prov_meas/C23_Order_prov.measures_25.04.2015_orig_Eng.pdf> accessed 10 November 2017 (‘Ghana/Côte d'Ivoire Provisional Measures Order’). 7 ibid, para 84. 8 Ghana/Côte d'Ivoire Provisional Measures, Written Statement of Ghana (23 March 2015) 14, pt 8 <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_prov_meas/Vol._I_-_Written_Statement _of_Ghana_FINAL.pdf >  accessed 10 November 2017. 9 Ghana/Côte d’Ivoire, Counter Memorial of Côte d’Ivoire (4 April 2016), para 12 <https://www.itlos.org/file admin/itlos/documents/cases/case_no.23_merits/pleadings/Counter_Memorial_final_Vol.I_Eng_TR.pdf> accessed 10 November 2017 (‘Ghana/Côte d'Ivoire, Counter Memorial of Côte d'Ivoire’). 10 ibid, para 24. 11 Ghana/Côte d'Ivoire, Provisional Measures Order (n 6) para 48. 12 Ghana/Côte d'Ivoire, Counter Memorial of Côte d'Ivoire (n 9) paras 9.33–9.39; Ghana/Côte d'Ivoire, Reply of Ghana (26 July 2016), paras 5.28–5.30 <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_merits/ pleadings/Reply_of_ Ghana__Vol._I_.PDF> accessed 10 November 2017; Ghana/Côte d'Ivoire, Rejoinder of Côte d'Ivoire (14 November 2016), paras 6.66–6.70 <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23 _merits/pleadings/C23_Rejoinder_TR.pdf >  accessed 10 November 2017. 13 Ghana/Côte d'Ivoire, Special Agreement and Notification of 3 December 2014 and the Minutes of Consultation, annexed thereto, 1 <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_merits /X001_special_agreement.pdf >  accessed 10 November 2017 (‘Ghana/Côte d'Ivoire Special Agreement’). 14 ibid. 15 Ghana/Côte d'Ivoire Provisional Measures Order (n 6), para 25. 16 ibid 21–22, para 108. 17 ibid 22, para 108(1)(a). 18 ibid, para 108(1)(b). 19 ibid, para 108; Ghana/Côte d'Ivoire, Counter Memorial of Côte d'Ivoire (n 9), para 24. 20 Ghana/Côte d'Ivoire, Counter Memorial of Côte d'Ivoire, ibid, para 24. 21 Ghana/Côte d'Ivoire, Rejoinder (n 12), paras 6.51–6.65. 22 Ghana/Côte d'Ivoire, Reply (n 12), para 5.47. 23 For some options for investors to participate in interstate boundary disputes, see: Tim Martin, ‘Energy and International Boundaries’ in Kim Talus (ed) Research Handbook on International Energy Law (Edgar 2014) 194–95. 24 Ghana/Côte d'Ivoire, Reply of Ghana (n 12), paras 5.51–5.52 (Second Statement of Tullow, RG, vol IV, annex 166). 25 Ghana/Côte d'Ivoire, Judgment of 23 September 2017, para 660. 26 ibid, para 633. 27 Stephan W Schill, The Multilateralization of International Investment Law (CUP 2009) 88. 28 UNCTAD, IIAs by Economy, ‘Côte d’Ivoire’<http://investmentpolicyhub.unctad.org/ IIA/CountryBits/50> accessed 5 June 2017. 29 UNCTAD, IIAs by Economy, ‘Ghana’ <http://investmentpolicyhub.unctad.org /IIA/CountryBits/79> accessed 5 June 2017. 30 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Ghana (22 March 1989) (‘Ghana–UK’) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1461> accessed 5 June 2017. 31 ibid, art 1(d)(ii). 32 See, for example, the right to self-determination and potential secession of Texas and Quebec: C Lloyd Brown-John, ‘Self-Determination, Autonomy and State Secession in Federal Constitutional and International Law’ (1999) 40 S Tex L Rev 567; Glen Anderson, ‘Secession in International Law and Relations: What Are We Talking About?’ (2013) 35 Loy LA Int'l & Comp L Rev 343; Roya M Hanna, ‘Right to Self-Determination in In Re Secession of Quebec’ (1999) 23 Md J Int'l L 213; Gregory Marchildon, Edward Maxwell, ‘Quebec’s Right to Secession under Canadian and International Law’ (1991–1992) 32 Va J Int'l L 583; Reference re Secession of Quebec, Judgement of the Supreme Court of Canada, 20 August 1998 [1998] 2 SCR 217. 33 See, for example, discussions about the SAR status of Hong Kong and Macau: Government of the Lao People’s Democratic Republic v Sanum Investments Ltd, Judgment of the Singapore High Court [2015] SGHC 15; Sanum Investments Ltd v Government of the Lao People’s Democratic Republic, Judgment of the Singapore Court of Appeal [2016] SGCA 57. 34 See, for example, the seven investment arbitrations commenced in relation to Crimean investments; Richard Happ and Sebastian Wuschka, ‘Horror Vacui: Or Why Investment Treaties Should Apply to Illegally Annexed Territories’ (2016) 33(3) J Int’l Arb 245–68 (‘Happ & Wuschka’). 35 Happ & Wuschka, ibid; Milano and Papanicolopulu (n 1). 36 David S Koller, ‘The End of Geography: The Changing Nature of the International System and the Challenge to International Law: A Reply to Daniel Bethlehem’ (2014) EJIL 25, 25–29, 27–28. 37 Ian Brownlie, Principles of Public International Law (OUP 2003), 112-113. 38 Agreement between the Government of the Russian Federation and the Cabinet of Ministers of the Ukraine on the Encouragement and Mutual Protection of Investments (27 November 1998), art 1(1) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/2233> accessed 5 June 2017 (‘Russia–Ukraine’) [emphasis added]. 39 Agreement between the Government of the People’s Republic of China and the Government of the Republic of Ghana Concerning the Encouragement and Reciprocal Protection of Investments (22 November 1990): <http://investmentpolicyhub.unctad.org/Download/TreatyFile/737> accessed 5 June 2017 (‘China–Ghana’). 40 North American Free Trade Agreement (1993) (‘NAFTA’), annex 201.1 <https://www.nafta-sec-alena.org/Home/Texts-of-the-Agreement/North-American-Free-Trade-Agreement> accessed 27 July 2017. 41 Energy Charter Treaty (1994), art 1(10) <http://www.energycharter.org/fileadmin/ DocumentsMedia/Legal/ECTC-en.pdf> accessed 27 July 2017 (‘ECT’); NAFTA, ibid, annex 201.1; See also Agreement between the Government of the Republic of Singapore and the Government of the United Arab Emirates on the Promotion and Protection of Investments (24 June 2011), art 1(9) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/4859> accessed 27 July 2017 ; Free Trade Agreement between the Government of the People’s Republic of China and the Government of the Republic of Korea (1 June 2015), art 1.5 (Territorial Application) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/3462> accessed 27 July 2017. 42 Ghana–UK (n 30), art 1(d)(ii) [emphasis added]. 43 ibid, art 1(e)(i); Agreement between the Government of the Kingdom of Denmark and the Government of the Republic of Ghana concerning the Promotion and Protection of Investments (6 June 1995), art 1(4)(b) http://investmentpolicyhub.unctad.org/Download/ TreatyFile/1006> accessed 5 June 2017 (‘Denmark–Ghana’). 44 United Nations Convention on the Law of the Sea (1982) 1833 UNTS 3 (‘UNCLOS’). 45 ibid, art 15. 46 ibid, art 74. 47 ibid, art 83. 48 Ghana–UK (n 30), art 12 [emphasis added]. 49 Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Republic of Ghana (1 July 1991), art 1 (c) [emphasis added] <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1458> accessed 27 July 2017. 50 Statute of the International Court of Justice (1945) UN Treaty Collection, art 38(1) <https://treaties.un.org/doc/Publication/CTC/uncharter-all-lang.pdf> accessed 27 July 2017 . 51 Côte d’Ivoire–UK (9 October 1997), art 1 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/851> accessed 27 July 2017; Canada–Côte d’Ivoire (14 November 2015), art 1 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/3242> accessed 27 July 2017, ‘covered investment’; BLEU–Côte d’Ivoire (15 June 2013), art 13 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/347> accessed 27 July 2017; Ghana–Malaysia (18 April 1997), art 10 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1456> accessed 27 July 2017; Ghana–Netherlands (1 July 1991) (n 49), art 10 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1458> accessed 27 July 2017; Serbia–Ghana (7 July 2000), art 14 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/5164> accessed 27 July 2017; Ghana–Switzerland (16 June 1996), art 9 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/4815> accessed 27 July 2017; Ghana–UK (n 30), art 1. 52 China–Ghana (n 39), art 8. 53 Denmark–Ghana (n 43), art 1. 54 For example, 1 January 1957 specified in the South Africa–Tunisia Investment Treaty: Treaty between the Republic of South Africa and the Republic of Tunisia (signed 28 February 2002, not yet entered into force as of date of writing) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/5215> accessed 27 July 2017 (‘South Africa–Tunisia’); and the Treaty between the Republic of Mozambique and the Republic of South Africa (signed 6 June 1997, entered into force 28 July 1998) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/5192> accessed 27 July 2017 (‘Mozambique–South Africa’). 55 Agreement between the Government of the Republic of South Africa and the Government of the Russian Federation on the Promotion and Reciprocal Protection of Investments (signed 23 November 1998, entered into force 12 April 2000) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/3436> accessed 15 June 2015 (‘South Africa–Russia’). 56 Island of Palmas Case (Netherlands/US), Judgment of 4 April 1928 (1949) 2 UNRIAA 829, 845: ‘As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights.’ 57 ASEAN Comprehensive Investment Agreement (26 February 2009), art 29(3) <http://www.asean.org/storage/images/2013/economic/aia/ACIA_Final_Text_26%20Feb%202009.pdf> accessed 27 July 2017. 58 Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v Romania, ICSID Case No ARB/05/20, Decision on Jurisdiction and Admissibility (28 September 2008), paras 153–157. 59 Jan de Nul N.V. and Dredging International N.V. v Arab Republic of Egypt, ICSID Case No ARB/04/13, Decision on Jurisdiction (16 June 2006) (‘Jan de Nul v Egypt’), para 33. 60 Agreement between the Belgo-Luxembourg Economic Union on the one hand, and the Arab Republic of Egypt on the other hand, on encouragement and reciprocal protection of investments of 28 February 1999, art 12, cited in ibid, para 33. 61 ibid, para 116; Ping An Life Insurance Company, Limited and Ping An Insurance (Group) Company, Limited v The Government of Belgium, ICSID Case No ARB/12/29, Award (30 April 2015) (‘Ping An’), para 193. 62 Vienna Convention on the law of Treaties 1969, (1980) United Nations Treaty Series 332–512, art 28: ‘Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.’ 63 International Legal Commission, Draft Articles on State Responsibility (2001)’ (Yearbook of the International Law Commission, 2001, vol II, Part Two) (‘ILC Draft Articles of State Responsibility’), art 13, ‘International Obligation in Force for a State’: ‘An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.’ 64 Jan de Nul v Egypt (n 59), paras 114–122. 65 Ping An (n 61), para 194; ibid, paras 114–122; Sebastián Green Martínez, ‘Case Comment: Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v. Kingdom of Belgium - A Jurisdictional Black Hole Between Two BITs?’ (2017) 14 TDM 1. 66 ILC Draft Articles of State Responsibility (n 63), art 14; Extension in Time of the Breach of An International Obligation (Commentary, Report of the International Law Commission on the work of its 53rd session) 59–60, para 1; Mavrommatis Palestine Concessions, Judgment No 2, (1924) PCIJ, Series A, No 2, 35. 67 Empresas Lucchetti, S.A. Lucchetti, S.A. and Lucchetti Peru, S.A. v The Republic of Peru, ICSID Case No ARB/03/4, Award (7 February 2005) (‘Empresas v Peru’). 68 ibid, para 50. 69 CMS Gas Transmission Company v The Republic of Argentina, ICSID Case No ARB/01/8, Decision of the Tribunal on Objections to Jurisdiction (17 July 2003). 70 ibid, para 109. 71 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (OUP 2009) (‘Dolzer & Schreuer’) 100; Christoph Schreuer, ‘Investments, International Protection’, Max Planck Encyclopaedia of Public International Law (OUP 2013). 72 Ghana–Netherlands investment treaty (n 49) art 6. 73 Ghana/Côte d'Ivoire Provisional Measures, Ghana’s Written Statement <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_prov_meas/Vol._I_-_Written_Statement_of_Ghana_FINAL.pdf> accessed 27 July 2017 (‘Ghana/Côte d'Ivoire Provisional Measures, Ghana’s Written Statement’), para 15. 74 Ghana/Côte d'Ivoire Provisional Measures Order (n 6), para 48. 75 See, for example the Timor Sea Treaty 2002 in Francisco Pereira Coutinho and Francisco Briosa E Gala, ‘David and Goliath Revisited’ (2014) 10 Tex J Oil Gas & Energy L 429, 443–446. 76 Dolzer & Schreuer (n 71) 130; Nicolas Angelet, ‘Fair and Equitable Treatment’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law ( 2012) vol VII. 77 Ghana–UK investment treaty (n 30), art 3(1). 78 Neer v Mexico, Opinion, US-Mexico General Claims Commission, 15 October 1926 (1927) 21 AJIL 444. 79 Waste Management v Mexico, Final Award (30 April 2004), para 98. 80 Emilio Agustín Maffezini v The Kingdom of Spain, ICSID Case No ARB/97/7 (‘Maffezini v Spain’), Award on the Merits (13 November 2000), para 83; Metalclad Corporation v The United Mexican States, ICSID Case No ARB(AF)/97/1 (‘Metalclad v Mexico’), Award (30 August 2000). 81 MTD Equity Sdn. Bhd. and MTD Chile S.A. v Republic of Chile, ICSID Case No ARB/01/7, (‘MTD v Chile’), Award (25 May 2004), para 163. 82 Todd Weiler (ed), ‘Good Faith and Regulatory Transparency’, International Investment Law and Arbitration: Leading Cases (Cameron 2005) 701; Waste Management v Mexico (n 79), para 138; Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v Islamic Republic of Pakistan, ICSID Case No ARB/03/29 (‘Bayindir v Pakistan’), Decision on Jurisdiction (14 November 2005), paras 242–243. 83 Técnicas Medioambientales Tecmed, S.A. v The United Mexican States (‘Tecmed v Mexico’), Award (29 May 2003), para 162; Loewen Group, Inc and Raymond L. Loewen v United States of America, ICSID Case No ARB(AF)/98/3 (‘Loewen v United States’), Award (26 June 2003), para 54; Waguih Elie George Siag and Clorinda Vecchi v The Arab Republic of Egypt, ICSID Case No ARB/05/15 (‘Siag v Egypt’) (1 June 2009), paras 451–455. 84 Canada–Côte d’Ivoire investment treaty (n 51), art 12 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/3242> accessed 15 June 2017. 85 Ghana/Côte d'Ivoire Provisional Measures, Ghana’s Written Statement (n 73), para 15. 86 Dolzer & Schreuer (n 71) 191; Christoph Schreuer, ‘Protection against Arbitrary or Discriminatory Measures’ in Catherine A Rogers, Roger P Alford (eds), The Future of Investment Arbitration (OUP 2009) 183; Veijo Heiskanen, ‘Arbitrary and Unreasonable Measures’ in August Reinisch (ed), Standards of Investment Protection (OUP 2008) 87. 87 Ghana–UK (n 30), art 3(2); Ghana–Netherlands investment treaty (n 49), art 3(1); Denmark–Ghana investment treaty (n 43), art 3(2). 88 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Côte d’Ivoire (9 October 1997), art 2(2): <http://investmentpolicyhub.unctad.org/Download/TreatyFile/851> accessed 15 June 2017. 89 China–Ghana investment treaty (n 39), art 3. 90 Ghana/Côte d'Ivoire, Reply (n 12) <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_merits/pleadings/Reply_of_Ghana__Vol._I_.PDF> accessed 27 July 2017, para 5.47. 91 Jonathan I Charney ‘Introduction’ in Jonathan I Charney and Lewis M Alexander (eds), International Maritime Boundaries (Martinus Nijhoff 1993), vol I; Ambrose Evans-Pritchard, ‘Gas Bonanza for Cyprus Hostage to Strategic Battle With Turkey’ The Telegraph (18 February 2014) <http://www.telegraph.co.uk/finance/newsbysector/energy/oilandgas/10647382/Gas-bonanza-for-Cyprus-hostage-to-strategic-battle-with-Turkey.html> accessed 13 June 2017; MercoPress, ‘Argentina Sues Falklands' Oil And Support Companies Involved In Hydrocarbons Drilling’ MercoPress (22 April 2015) <http://en.mercopress.com/2015/04/22/argentina-sues-falklands-oil-and-support-companies-involved-in-hydrocarbons-drilling> accessed 13 June 2017; Lee Hoon and Mitchell Sara McLaughlin, ‘Foreign Direct Investment and Territorial Disputes’ (2012) 56 (4) J Confl Resolut 675; Yonhap News Agency, ‘Daewoo International Extends Gas Exploration in Myanmar’ Yonhap News Agency (2009); Lee Hoon, ‘Economic Globalization And Territorial Disputes’ (Gulen Institute ) <http://www.guleninstitute.org/publications/analyses/294-economic-globalization-and-territorial-disputes-122/> accessed 13 June 2017; Bhatty and Lamprou (n 2). 92 Ghana/Côte d'Ivoire Provisional Measures Order (n 6), para 48. 93 Ghana–Netherlands investment treaty (n 49), art 3(2). 94 Asian Agricultural Products Ltd v Republic of Sri Lanka, ICSID Case No ARB/87/3 (‘AAPL v Sri Lanka’), Award (27 June 1990), paras 45–51; Wena Hotels Ltd. v Arab Republic of Egypt, ICSID Case No ARB/98/4 (‘Wena Hotels v Egypt’), Award (8 December 2000), para 84; Tecmed v Mexico (n 83), paras 175–177. 95 Canada–Côte d’Ivoire investment treaty (n 51), art 6(3). 96 Biwater Gauff (Tanzania) Ltd. v United Republic of Tanzania, ICSID Case No ARB/05/22 (‘Biwater Gauff v Tanzania’), Award (24 July 2008), paras 725–729; Azurix Corp. v The Argentine Republic, ICSID Case No ARB/01/12 (‘Azurix v Argentina’), Award (14 July 2006), paras 406–408; Compañiá de Aguas del Aconquija S.A. and Vivendi Universal S.A. v Argentine Republic, ICSID Case No ARB/97/3 (‘Vivendi v Argentina’), Award (20 August 2007), para 7.4.15; GEA Group Aktiengesellschaft v Ukraine, ICSID Case No ARB/08/16 (‘GEA v Ukraine’), Award (31 March 2011), para 247. 97 CME Czech Republic B.V. v Czech Republic, Partial Award (13 September 2001), para 613. 98 Biwater Gauff v Tanzania (n 96), para 730. 99 UNCLOS (n 44), arts 74(1) and 83(1). 100 Case concerning Maritime Delimitation in the Black Sea (Romania v Ukraine), ICJ Judgment, 3 February 2009 <http://www.haguejusticeportal.net/eCache/DEF/6/185.html> accessed 27 July 2017. 101 Malcom Evans, ‘Maritime Boundary Delimitation’ in Donald Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 269–73; 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Prosper Weil, Perspective du droit de la délimitation maritime (Pedone 1988) 53. 107 Tanaka, ibid 139–149; Continental Shelf Case (Libya/Malta) [1985] ICJ Rep 15 (‘Libya/Malta’), para 49. 108 Constantinos Yiallourides, ‘Oil and Gas Development in Disputed Waters under UNCLOS’, (2016) 5 UCL J L J 59, 69; Libya/Malta, paras 27–28; North Sea Continental Shelf Cases (Germany/Denmark; Germany/Netherlands), Judgment [1969] ICJ Rep 3, paras 18–20. 109 Ghana/Côte d'Ivoire (n 25), para 521. 110 ibid. 111 ibid, para 522. 112 Kaiyan Kaikobad, Interpretation and Revision of International Boundary Decisions (CUP 2007) (‘Kaikobad’) 1–81. 113 Beagle Channel case (1978) 17 ILM 734. 114 Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) Order of 2 March 1990, 83 ILR 1; Kaikobad (n 112) 69. 115 Stefan Talmon, ‘The South China Sea Arbitration and the Finality of “Final” Awards’ (2017) 8 JIDS 388. 116 Arbitration between the Republic of Crotia and the Republic of Slovenia, Final Award (29 June 2017) <https://pcacases.com/web/view/3> accessed 27 July 2017; Sven Milekic, ‘Croatia Set to Ignore Ruling on Piran Gulf’ (29 June 2017) <http://www.balkaninsight.com/en/article/ stalemate-in-croatia-slovenia-sea-dispute-amid-court-decision-06-28-2017> accessed 27 July 2017. 117 Jamie Shookman, ‘Too Many Forums for Investment Disputes? ICSID Illustrations of Parallel Proceedings and Analysis’ (2010) 27 J Int’l Arb 361 (‘Shookman’); Gilles Cuniberti, ‘Parallel Litigation and Foreign Investment Dispute Settlement’ (2006) 21 (2) ICISD Rev 381 (‘Cuniberti’); August Reinisch, ‘The Issues Raised by Parallel Proceedings and Possible Solutions’ in Michael Waibel and others (eds), The Backlash against Investment Arbitration (Kluwer 2010) 113 (‘Reinisch’); Vaughan Lowe, ‘Res Judicata and the Rule of Law in International Arbitration’ (1996) 8 Afr J Int’l Comp L 38, 48 (‘Lowe’). 118 With the exception of the Sweden–Côte d’Ivoire investment treaty (3 November 1966) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/849> accessed 15 June 2017, which provides for state–state arbitration, art 7; and the Côte d’Ivoire–Netherlands investment treaty (8 September 1966), art 12 <http://investmentpolicyhub.unctad.org/Download/TreatyFile/848> accessed 15 June 2017. 119 Ghana–UK (n 30), art 11. 120 Canada–Côte d’Ivoire (n 51), art 20. 121 Côte d’Ivoire–UK (n 51), art 8. 122 Côte d’Ivoire–Germany investment treaty (10 June 1968), art 11(6). <http http://investmentpolicyhub.unctad.org/Download/TreatyFile/846> accessed 15 June 2017. 123 China–Ghana (n 39), art 9. 124 Ghana–Netherlands (n 49), art 9. 125 Norvan Acquah, ‘Cote d'Ivoire Rejects Imposing of Equidistance Line in Final Arguments Today’ (B&FTOnline, 16 February 2017) <http://thebftonline.com/commodities/oil-gas/23030/cote-divoire-rejects-imposing-of-equidistance-line-in-final-arguments-today.html> accessed 27 July 2017. 126 Ghana/Côte d'Ivoire, Counter Memorial of Côte d'Ivoire (n 9), paras 9.33–9.39; Ghana/Côte d'Ivoire, Reply (n 12), paras 5.28–5.30; Ghana/Côte d'Ivoire, Rejoinder, paras 6.66–6.70; Ghana/Côte d'Ivoire, Judgment (n 25), paras 545–554. 127 Hanno Wehland, The Coordination of Multiple Proceedings in Investment Treaty Arbitration (OUP 2013), paras 2.65, 2.70, 3.75–3.77. 128 Hanno Wehland, ‘The Regulation of Parallel Proceedings in Investor-State Disputes’ (2016) 31 (3) ICSID Rev 576, 577–78 (‘Wehland’); CME v Czech Republic, paras 419, 525; Wena Hotels v Egypt (n 94), Decision on Annulment (28 January 2002), para 49; Azurix v Argentina (n 96), para 101; Camuzzi International SA v Argentine Republic, ICSID Case No ARB/03/2, Decision on Objection to Jurisdiction (11 May 2005), para 91; Sempra Energy International v Argentine Republic, ICSID Case No ARB/02/16, Decision on Objections to Jurisdiction (11 May 2005), para 102; Bayindir v Islamic Republic of Pakistan, ICSID Case No ARB/03/29, Decision on Jurisdiction (14 November 2005), para 270; Robin Hansen, ‘Parallel Proceedings in Investor-State Treaty Arbitration: Responses for Treaty Drafters, Arbitrators and Parties’ (2010) 73 MLR 523, 529; Reinisch (n 117) 115; Cuniberti (n 117) 395; Lowe (n 117) 48; Shookman (n 117) 362; Jan Ole Voss, The Impact of Investment Treaties on Contract Between Host States and Foreign Investors (Martinus Nijhoff 2011) 281. 129 Wehland, ibid 580–88; Filip de Ly and Audley Sheppard, ‘ILA Interim Report on Res Judicata and Arbitration’, (Berlin Conference, 2004) <http://www.law.columbia.edu/sites/default/files/microsites/columbia-arbitration-day/files/ila_interim_report_on_res_judicata_2004.pdf> accessed 5 June 2017; Filip de Ly and Audley Sheppard, ‘ILA Final Report on Res Judicata and Arbitration’ (2009) 25 (1) Arb Intl 35, 37. 130 Oral proceedings were heard on 6 February 2017. 131 Ghana/Côte d'Ivoire, Provisional Measures Order (n 6), para 108. © The Author(s) 2017. Published by Oxford University Press on behalf of the AIPN. All rights reserved.

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Journal of World Energy Law and BusinessOxford University Press

Published: Mar 1, 2018

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