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Losing Credibility Of Tribunals’ Interpretations: The Standards Of Review Of “Denial Of Justice” Lacking In Relationships With Treaty Wording

I. Introduction

Today, no one would doubt that investment arbitrations have become an indispensable part of international investment treaties, or that investment arbitrations are a leading reason why states conclude international investment treaties. As the total number of investment treaties have increased, so too have the total number of arbitration cases.01United Nations Conference on Trade and Development, World Investment Report 2015, 136 (2015). In the past few years (2008–15), 410 new IIAs have been concluded, and 316 new ISDS cases have been registered. Although the relationship between those two numbers is not clear, it appears evident that States are growing less afraid of potentially being sued by foreign investors claiming a breach of investment treaties, or of State actions being reviewed by lawyers from other States, in the form of appointed arbitrators.

In light of this explosive growth, some critics raised suspicions that tribunals hand down awards that are biased towards investors. They cast doubt on the ability of tribunals to balance the interests of both investors and States when resolving a treaty interpretation dispute.02William Burke-White & Andreas von Staden, Private Litigation in a Public Law Sphere: The Standard of Review in Investor-State Arbitrations, 35 Yale J. Int’l L. 283, 285 (2010) (noting that in similar contexts, tribunals are criticized for applying inappropriate standards of review, thus ignoring key elements of investment law disputes) Under an international investment law regime, the credibility of both individual arbiters and of arbitration tribunals in general has certainly done the most to stabilize an otherwise-a potentially chaotic regime. Yet, as arbitration awards have increased in number, some States have voiced serious concerns about the failure of tribunals to more-carefully consider their public interests.

Those concerns are partially addressed in the Trans-Pacific Partnership (“TPP”), which has a range of precise provisions clarifying that a host State’s public interest is an important element to be balanced against the private interest of foreign investors.03Lise Johnson & Lisa Sachs, Colum. Ctr. on Sustainable Inv., The TPP’s Investment Chapter: Entrenching, Rather than Reforming, a Flawed System 2–3 (2015) (recalling the TTP Article 9.16 stipulation that “[n]othing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental, health or other regulatory objectives.” Note that the clause’s effectiveness is debatable. As discussed later, drafting cannot suggest an absolute solution; it is partially for this reason that the arbitration tribunals’ role remains so central in contemporary investment law).

This problem is not only limited to a diminishing consideration of public interest, but rather, it reflects a growing State skepticism regarding the credibility of tribunal interpretations. Considering the role of arbitration tribunals in the overall international investment law regime, it is quite serious to allege that some State participants have lowered their trust in tribunal interpretations. In this context, one of the clearest signals of State distrust in tribunal interpretations is a State’s decision to draft provisions to ever-increasing degrees of precision.04Caroline Henckels, Protecting Regulatory Autonomy Through Greater Precision in Investment Treaties: The TPP, CETA and TTIP, 19 J. Int’l Econ. L. 27, 27 (2016) (remarking that Article 9.6(2)(a) of the TPP specifically delineates that the “Fair and Equitable Treatment” standard includes an obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings, in accordance with the principle of due process embodied in the principal legal systems of the world). However, consistent with the nature of investment treaties, this specificity has its own natural limitations. In order to regulate complex and extensive international matters, treaty provisions are necessarily abstract to some extent, meaning it is highly unlikely that States can eliminate tribunal discretion in interpreting treaty provisions, regardless of the degree of specificity with which they draft these new provisions.

This is a critical moment for international investment law. If tribunals, as an institution, desire to strengthen their authority and maintain the investment arbitration regime, they must necessarily display balanced and consistent treaty interpretations. As we shall see, the Vienna Convention on Law of Treaties (“Vienna Convention”) offers guidance in treaty interpretation. If the interpretations of arbitration tribunals, like those of domestic court systems, develop a level of unity and consistency that transcends individual tribunals, the overall system of tribunals will gain significant credibility among States. Even absent formal appellate systems, tribunals can help to achieve this unity and consistency by following this guide.

Additionally, tribunals should continue or increase the use of specific and detailed manifestations of reasoning which supports each determination. Beyond the simple fact that failure to state such supporting reasons can be a cause for annulment05Convention on the Settlement of Investment Disputes Between States and Nationals of Other States art. 52(1)(e), Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159. , and that unclear reasons can lead to a request of interpretation,06Id. art 50. specific and detailed reasons can function as a conduit of communication, both between a tribunal and its parties, as well as between tribunals themselves. Notably, in this context, such “reasoning” requires a showing of a specific interpretation process, one which extends beyond a mere recitation of the matter’s procedural history or a summary of the briefs already submitted by prior, unaffiliated, tribunals. Interpretations can be more persuasive through a tribunals’ manifestation of specific and detailed reasons in its award. This will help a tribunal to better-understand the reasoning of other tribunals, allowing it to better-resolve disputes between parties.

Under an international investment law regime, it is undisputed that the measures of domestic courts are attributable to States,07Int’l Law Comm’n, Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 4(1), U.N. Doc. A/56/10 (Oct. 24, 2001) (“The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State”). meaning that arbitration tribunals have the authority to review domestic court measures and determine whether the measures violate international law. A claim alleging that domestic courts have violated international law is generally called a “denial of justice” claim. Although domestic court measures may be subject to review in investment arbitrations, tribunals essentially defer to court decisions, unlike when the same tribunal reviews administrative or legislative measures. This attitude stems from the fact that tribunals do not function as courts of appeals for domestic court decisions. This positioning, to some extent, necessarily affects tribunal interpretations, although the basic principles of treaty interpretations provided by the Vienna Convention should be upheld nonetheless.

In this article, I will examine how tribunals interpret “denial of justice” provisions in international investment treaties. Denial of justice claims function as carry-overs from customary international law,08See Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2009-23, Opinion of Jan Paulsson, ¶ 22 (Mar. 12, 2012). and so customary international law should provide the standard of review, while ensuring that any purported failure to meet those standards constitutes a violation of international law, even absent an explicit provision providing for this. That said, where there are explicit or implicit provisions for denial of justice in investment treaties, the standards of review should be based primarily upon the interpretations of those provisions. Even at this stage, allusions to customary international law should be permitted, but only on a secondary basis.

In the subsequent sections, I will investigate the relationship between treaty provisions that are required to be interpreted under the Vienna Convention and the standards of review that tribunals apply when reviewing denial of justice claims. To better understand the standards of review used by tribunals, this paper focuses not only on the general standards of review of a denial of justice claim, but also on case-specific applications of those standards to the underlying facts at issue in a given case.

To begin, Section II looks into the basic principles of treaty interpretation provided by the Vienna Convention, as well as their specific function and usefulness in investment arbitrations. Section III introduces treaty provisions upon which denial of justice claims are based, by classifying those provisions according to their wording, and it examines potential implications of such different wording. Finally, Section IV analyzes how arbitration tribunals interpret denial of justice clauses, especially in relation to a treaty’s particular use of language.

II. Treaty Interpretation Under The Vienna Convention

When reviewing investors’ treaty-based claims, tribunals need to interpret whether certain treaty provisions were allegedly violated by host States. Since investment treaties are also treaties conducted between States, the Vienna Convention is applied for treaty interpretation purposes.09Vienna Convention on the Law of Treaties art. 1, 2(1)(a), opened for signature May 22, 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) (“VCLT”) (“The present Convention applies to treaties between States”); VCLT art. 2(1)(a) (defining “Treaty” as any “international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”). The Vienna Convention provides tools of interpretation for investment treaty provisions. Specifically, according to Article 31(1) of the Vienna Convention,10VCLT art. 31(1) (“[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”). the primary tools of interpretation include the ordinary meaning of a given term and the context of the term as used in the overall treaty, not to mention the treaty’s object and purpose. With regard to the ordinary meaning of the terms, it is clear that the wording of treaty provisions is determinative. Also, according to Article 32 of the Vienna Convention, supplementary tools, including preparatory works or circumstances, can be considered to supplement the primary tools of interpretation. Statistically speaking, in the period stretching from the start of 1998 until the end of 2006, 35 of the 98 decisions included specific references to Articles 31 – 33 of the Convention, and a clear majority of those references were limited to Article 31(1) of the Vienna Convention.11Ole Fauchald, The Legal Reasoning of ICSID Tribunals – An Empirical Analysis, 19 Eur. J. Int’l L. 301,
314 (2008).

This guidance suggests that, assuming other conditions are basically the same, different wording in treaty provisions will very likely result in different interpretations. In terms of investment treaties, with a few variations, such treaties mostly aim to improve a States’ economic development by facilitating foreign investment. This means that the context and the object and purpose are less likely to make a meaningful difference to the treaty’s interpretation, and thus, the wording of the treaty provision remains the most important element leading to different interpretations. Unsurprisingly, some treaty provisions originate from customary international law,12Jeswald Salacuse, The Law of Investment Treaties 56–72 (2nd ed. 2015) (showing that treaty provisions on expropriation, minimum standard, and national treatment all base their origins upon customary international law). and certain treaty provision interpretations have accumulated over a long period of time. Nevertheless, once customary international law has been incorporated into investment treaties, the interpretation tools in the Vienna Convention should be prioritized above these accumulated interpretations based on customary international law. This does not mean that interpretations of customary international law may not help illuminate the meaning of the terms on a secondary basis, but rather that those interpretations may not preempt the “ordinary meaning” of the treaty terms.

Given the active utilization of tools in the Vienna Convention, the significance of specific and detailed reasons presented by tribunals warrants further emphasis. As previously mentioned, providing specific and detailed reasons will contribute not only to persuade dispute parties, but also to help other tribunals handling similar issues while seeking to develop their own interpretation. Conversely, if awards fail to indicate the specific reasons justifying the tribunals’ interpretation, parties, especially the losing ones, will doubt the capability of tribunals, causing significant stability risks to the investment arbitration regime.

III. Treaty Clause of Denial of Justice

In an international investment arbitration regime, protection from a denial of justice claim is normally based on a Fair and Equitable Treatment (“FET”) clause in the applicable investment treaty.13Rudolph Dolzer & Christoph Schreuer, Principles of International Investment Law 178 (2nd ed. 2012); Martins Paparinskis, The International Minimum Standard and Fair and Equitable Treatment 181 (2013). Tribunals have found that a denial of justice is prohibited by FET clauses, even though specific references to a “denial of justice” are facially absent from the investment treaty. In Liman Caspian Oil v. Kazakhstan, for example, the tribunal, interpreting the Energy Charter Treaty (“ECT”) equates denial of justice with unfair and inequitable treatment:

The Tribunal considers that the international delict of denial of justice is an example of the standard of fair and equitable treatment under Article 10(1), second sentence, of the ECT. In other words, fair treatment implies that there is no denial of justice.14Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan, ICSID Case No. ARB/07/14, Award, ¶ 268 (Jun. 22, 2010); Jan de Nul N.V. and Dredging International N.V. v. Arab Republic of Egypt, ICSID Case No. ARB/04/13, Award, ¶ 188 (Nov. 6, 2008) (“The Tribunal recognizes that the 2002 and 1977 BITs do not comprise a specific provision regarding the miscarriage or denial of justice. It considers, however, that the fair and equitable treatment standard encompasses the notion of denial of justice”).

A. Type 1: FET the same as Customary International Law

Some investment treaties explicitly limit the scope of an FET clause to customary international law. For example, the Minimum Standard of Treatment clause in the NAFTA (Article 1105), together with the subsequent FTC interpretation,15NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions (Jul. 31, 2001), available at http://www.sice.oas.org/tpd/nafta/Commission/CH11understanding_e.asp. (“Article 1105(1) prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to investments of investors of another Party. The concepts of ‘fair and equitable treatment’ and ‘full protection and security’ do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens”). make it clear that the FET in Article 1105(1) only covers customary international law:

Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.

Some Type 1 investment treaties, however, clarify that denial of justice is prohibited under an FET clause. In both the US Model BIT (2012) and the Rwanda-US BIT (2008), Article 5(2)(a) stipulates explicitly that the FET in those treaties, the scope of which will be limited to customary international law, includes denial of justice:

“Fair and equitable treatment” includes the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world.

Likewise, the investment chapter of the TPP has a provision (Article 9.6) similar to that of the US Model BIT, referencing denial of justice specifically:

1. Each Party shall accord to covered investments treatment in accordance with applicable customary international law principles, including fair and equitable treatment and full protection and security.

2. For greater certainty, paragraph 1 prescribes customary international law minimum standard of treatment of aliens as the standard of treatment to be afforded to covered investments. The concepts of “fair and equitable treatment” and “full protection and security” do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights. The obligations in paragraph 1 to provide:

(a) “fair and equitable treatment” includes the obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world;

For Type 1 treaties, as shown by the ordinary meaning of those provisions, it is clear that the scope of protection from denial of justice is limited to what is recognized in customary international law. Considering that customary international law establishes a minimum threshold to recognize a denial of justice claim, it is likely that tribunals will review court measures with State-friendly standards when adjudicating denial of justice claims based on Type 1 treaties. Put differently, if treaties provide FET beyond the degree afforded under customary international law, tribunals are likely to review court measures with stricter standards (less favorable to States) than when applying Type 1 treaties. Since tribunals will refer to all circumstances when they interpret treaty provisions, this inference may seem to be an oversimplification of interpretation mechanism. However, this is based upon principles of treaty interpretation, and if there are other circumstances that tribunals have considered, arbitration awards should include those circumstances as tribunals’ detailed reasons.

B. Type 2: FET not less favorable than International Law

Type 2 treaties have a structure and relationship with international law distinguished from those of Type 1 treaties. Unlike Type 1 treaties, they do not limit the scope of FET protection to customary international law. One of these treaties is the ECT signed by 52 European and Asian countries.16Energy Charter Secretariat, Frequently Asked Questions – Energy Charter, http://www.energycharter.org/process/frequently-asked-questions (last visited Apr. 9, 2016). The ECT, in Article 10(1), stipulates that the FET based on the ECT shall not be less favorable than the international legal requirement:

Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. … In no case shall such Investments be accorded treatment less favourable than that required by international law, including treaty obligations.

This treaty type also includes Article 2(3)(a) of the US-Ecuador BIT (1993) which mandates that a state accord to investors of the other state FET not less favorable than that required under international law:

Investment shall at all times be accorded fair and equitable treatment, shall enjoy full protection and security and shall in no case be accorded treatment less than that required by international law.

In Type 2 treaties, international law, which normally refers to customary international law, establishes the minimum level of protection, so the level of protection given by a host state should be the same or higher than that given by customary international law. Thus, the protection given by Type 2 treaties to a foreign investor claiming denial of justice should be more extensive and stronger than the protection given by Type 1 treaties. This means, in other words, that the threshold to affirm the investor’s denial of justice claim should be lower than the threshold under Type 1 treaties, at least in principle.

C. Type 3: FET Only

Other than those aforementioned treaties, there are treaties simply stipulating duty to accord FET to investors without setting any relationship with international law. For example, Article 3(2) in the UK-Indonesia BIT (1977) says:

Investments of nationals or companies of either 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.

Article 1(1) in the Belgium-Luxemburg-Egypt BIT (1977) has a similar FET clause:

All investments, and goods, rights and interests in connection with such investments, belonging directly or indirectly to nationals or legal persons of one of the Contracting Parties shall enjoy fair and equitable treatment in the territory of the other Contracting Party.17This 1977 BIT was amended in 2002. Article 3(1) of the 2002 BIT stipulates FET in almost the same way: “Tous les, directs ou indirects, effectués par des investisseurs de l’une des Parties Contractantes, jouiront sur le territoire de l’autre (des autres) Etat(s) Contractant(s) d’un traitement juste et équitable.” (Roughly translated, this means, “All direct or indirect, made by investors of one of the Contracting Parties, shall enjoy fair and equitable treatment in the territory of the other Contracting State”).

Some Type 2 treaties limit the scope of FET protection to protection from denial of justice claims. For example, Article 11(2)(a) in the ASEAN Comprehensive Investment Agreement (2009) stipulates that the FET itself means not denying justice:

[F]air and equitable treatment requires each Member State not to deny justice in any legal or administrative proceedings in accordance with the principle of due process.

As there is no other indication in an FET clause, it is difficult to define the scope and extent of protection in Type 3 treaties with absolute certainty, but it is possible to partly estimate the scope and extent through a comparative approach. Admittedly, between Type 2 and Type 3 treaties, it is difficult to determine which version provides broader protections. However, under the Vienna Convention, we can infer that the protection given by Type 3 treaties should be broader than that given by Type 1 treaties.18Saluka Investments BV v. The Czech Republic, UNCITRAL, Partial Award, ¶¶ 285–309 (Mar. 17, 2006) (demonstrating this proposition in relation to the Type 3 Netherlands-Czech BIT (1991), and distinguishing their interpretation from other tribunals’ NAFTA (Type 1) interpretations by presenting a new standard: Conduct which clearly provides disincentives to foreign investors violates the FET clause in the BIT. Additionally, the tribunal offered support for their specific process of interpretation with reference to tools found in the Vienna Convention).

D. Denial of Justice based on “Effective Means” Clause

In some cases, tribunals have found the basis of denial of justice claim in a clause other than an FET clause. This newly-recognized clause stipulates the duty of providing effective means of asserting claims and enforcing rights to foreign investors. For example, Article 10(12) in the ECT says:

Each Contracting Party shall ensure that its domestic law provides effective means for the assertion of claims and the enforcement of rights with respect to Investments, investment agreements, and investment authorizations.

Notably, the other Type 2 treaty mentioned above, the US-Ecuador BIT, also has almost the same provision in Article 2(7).

Each Party must provide effective means of asserting rights and claims with respect to investment, investment agreements and any investment authorizations.19The United States–Bahrain BIT (1999), a Type 2 treaty, also utilizes an effective means clause (“Each Party shall provide effective means of asserting claims and enforcing rights with respect to covered investments”).

Since the contents of FET itself are not clearly determined, the difference stemming from applying a different clause to denial of justice claims is not clear-cut on its face. However, in any case, we can infer that if this “effective means” clause can be applied to denial of justice claims, according to the tools provided by the Vienna Convention, tribunals are very likely to come up with different standards than those based on an FET clause.

As highlighted, most, if not all, Type 2 treaties have an “effective means” clause. It does not seem accidental that they share this clause in common; rather, it is reasonable to interpret that granting stronger investor protections was the intention of all treaty parties in the first place. This intention should be respected and prioritized when tribunals are faced with interpreting Type 2 treaties. Next, this paper examines arbitration awards by applying several different types of clauses introduced earlier in this section.

IV. Standards Of Review Of “Denial of Justice”

A. Type 1 Arbitration Awards

Arbitration awards applying Type 1 treaties for denial of justice claims are mostly found among NAFTA cases. Since the scope of the FET clause is the most limited, these NAFTA cases serve as a good starting point to compare tribunal interpretations of different types of investment treaties.
A leading NAFTA case for denial of justice is Azinian v. Mexico, the award of which was rendered in 1999. In this case, the tribunal expressed the standard to review measures taken by domestic courts of the host state in the following way:

A denial of justice could be pleaded if the relevant courts refuse to entertain a suit, if they subject it to undue delay, or if they administer justice in a seriously inadequate way.20Robert Azinian, Kenneth Davitian & Ellen Baca v. The United Mexican States, ICSID Case No. ARB (AF)/97/2, Award, ¶ 102 (Nov. 1, 1999). . . . There is a fourth type of denial of justice, namely the clear and malicious misapplication of the law. This type of wrong doubtless overlaps with the notion of “pretence of form” to mask a violation of international law.21Id. ¶ 103.

Although this does not provide concrete standards which can be applied without any further clarification, at the very least, terms such as “undue,” “seriously inadequate,” and “clear and malicious” indicate that the standard’s threshold is not easily met for foreign investors. This reflects a tribunals’ default attitude of deference to the domestic judicial systems.
In 2002, three years after Azinian, a tribunal came up with a more elaborated standard for reviewing the denial of justice claim asserted by a Canadian real-estate development corporation in Mondev v. United States of America. Quoting the standard used in the ELSI case, “a wilful disregard of due process of law, . . . which shocks, or at least surprises, a sense of judicial propriety,” 22 Elettronica Sicula S.p.A. (“ELSI”) (United States of America v. Italy), 1989 ICJ Rep. 15, 28 ILM 1109, Judgment, ¶ 128 (Jul. 20, 1989). the tribunal presented standards along with basic attitudes to assume when reviewing the host State’s judicial measures.

The test is not whether a particular result is surprising, but whether the shock or surprise occasioned to an impartial tribunal leads, on reflection, to justified concerns as to the judicial propriety of the outcome, bearing in mind on the one hand that international tribunals are not courts of appeal, and on the other hand that Chapter 11 of NAFTA (like other treaties for the protection of investments) is intended to provide a real measure of protection. In the end the question is whether, at an international level and having regard to generally accepted standards of the administration of justice, a tribunal can conclude in the light of all the available facts that the impugned decision was clearly improper and discreditable, with the result that the investment has been subjected to unfair and inequitable treatment. This is admittedly a somewhat open-ended standard, but it may be that in practice no more precise formula can be offered to cover the range of possibilities.23Mondev International Ltd. v. United States of America, ICSID Case No. ARB(AF)/99/2, Award, ¶ 127 (Oct. 11, 2002).

In Mondev, the tribunal presents a seemingly-limited standard, requiring “clearly improper and discreditable” treatment by domestic courts in order to be recognized as denial of justice. In its awards, the tribunal explains that this standard arose from the balance between the two conflicting interests of judicial deference and investor protection. Since the FET clause in the NAFTA only accords a minimum level of treatment, the limited standard appears consistent with the treaty provision in accordance with the Vienna Convention.

One year after the Mondev award, another frequently-cited award in denial of justice cases was rendered, Loewen v. United States of America. The issue in Loewen was the propriety of the allegedly discriminatory procedural and substantive measures of the Mississippi court in the United States. The Loewen tribunal stated that, to be recognized as denial of justice, a showing of the subjective elements (e.g. bad faith or malicious intention) is unnecessary, while an examination of the propriety of the process is of particular importance. Further, the tribunal discussed the seriousness of discriminatory court decisions in the context of international law:

Neither State practice, the decisions of international tribunals nor the opinion of commentators support the view that bad faith or malicious intention is an essential element of unfair and inequitable treatment or denial of justice amounting to a breach of international justice. Manifest injustice in the sense of a lack of due process leading to an outcome which offends a sense of judicial propriety is enough, even if one applies the Interpretation according to its terms.24Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3, Award, ¶ 132 (Jun. 26, 2003). . . . Whether the conduct of the trial amounted to a breach of municipal law as well as international law is not for us to determine.25Id. ¶ 134. . . . International law does, however, attach special importance to discriminatory violations of municipal law. . . A decision which is in breach of municipal law and is discriminatory against the foreign litigant amounts to manifest injustice according to international law.26Id. ¶ 135.

Historically, one of the most important goals of international investment agreements has been preventing discriminatory measures of host States against foreign investors. Almost all substantive clauses including FET and National Treatment clauses basically protect foreign investors from host States’ discriminatory measures. In this sense, domestic courts’ discriminatory measures should be highly criticized for disregarding this essential goals of an international investment law regime. The Loewen tribunal thus emphasized this fundamental spirit of investment treaties in the context of denial of justice.

B. Type 2 Arbitration Awards

Amto v. Ukraine was an arbitration case brought under the ECT, a treaty whose FET clause was notably different from that of the NAFTA agreement. Generally speaking, according to the tools provided by the Vienna Convention, the terms in the ECT provision indicate that more protections be given to foreign investors than those given under the NAFTA. In Amto, however, the tribunal referred to the Mondev case directly without considering those tools:

In respect of the applicable standard to establish a case of denial of justice under Article 10(1) in respect of judicial decisions, the Tribunal refers to the discussion in Mondev International Limited v United States of America, (ICSID Case No. ARB(AF)/99/2) Award of October 11, 2002 (42 ILM 85 (2003)), at paragraphs 126-127.27Limited Liability Company Amto v. Ukraine, SCC Case No. 080/2005, Final Award, ¶ 76 (Mar. 26, 2008).

Other than this preexisting standard,28See Mondev, supra note 23. the tribunal adds only the general principle which can be used in the event that a series of court decisions allegedly violate the ECT:

In the context of the present arbitration, the Tribunal would add that the experience of an investor in domestic courts may involve a series of decisions, and these decisions should be considered in their entirety. Further, the available means within the host State’s legal system to address errors or injustices, and whether or not they were exercised, are relevant to the assessment of the propriety of the outcome. The investor that fails to exercise his rights within a legal system, or exercises its rights unwisely, cannot pass his own responsibility for the outcome to the administration of justice, and from there to the host State in international law.29Id.

Liman is another ECT case. In its award, the tribunal tries to distinguish the two different FET clauses in the ECT and the NAFTA:

[T]he Tribunal considers that the purpose of ECT Article 10(1), second sentence, is to provide a protection which goes beyond the minimum standard of treatment under international law. The ECT was intended to go further than simply reiterating the protection offered by the latter. In this respect, ECT Article 10(1), second sentence, differs from NAFTA Article 1105 (in its interpretation given by the Free Trade Commission on 31 July 2001) which contains an express reference to international law. Therefore, when assessing Respondent’s actions, a specific standard of fairness and equitableness above the minimum standard must be identified and applied for the application of the ECT.30Liman Caspian Oil v. Kazakhstan, supra note 14, ¶ 263.

The tribunal also re-emphasized the limitation on reviewing national court measures:

The Tribunal emphasizes that an international arbitration tribunal is not an appellate body and its function is not to correct errors of domestic procedural or substantive law which may have been committed by the national courts. The Tribunal stresses that the threshold of the international delict of denial of justice is high and goes far beyond the mere misapplication of domestic law.31Id. ¶ 274.

However, in the end, the tribunal did not provide standards of review which went beyond those of Mondev. Similar to the Amto tribunal, the Liman tribunal alluded to the same standards presented in Mondev. While it cites to a portion of Jan Paulsson’s book “Denial of Justice,”32Id. ¶ 276 (“Denial of justice is always procedural. There may be extreme cases where the proof of the failed process is that the substance of a decision is so egregiously wrong that no honest or competent court could possibly have given it. Such cases would sanction the state’s failure to provide a decent system of justice. They do not constitute an international appellate review of national law”). as well as Article 9 of the Harvard Law School, Draft Convention on the Law of the Responsibility of States for Damages Done in Their Territory to the Person or Property of Foreigners,33Id. ¶ 277 (“A state is responsible if an injury to an alien results from denial of justice. Denial of justice exists when there is denial, unwarranted delay or obstruction of access to courts, gross deficiency in the administration of judicial or remedial process, failure to provide those guarantees which are generally considered indispensable in the proper administration of justice, or a manifestly unjust judgment. An error of a national court which does not produce manifest injustice is not denial of justice”). these references do not meaningfully contribute to differentiating the standards of review extracted from the ECT provision, or from the standards of review extracted from the NAFTA provision; worse, they simply reiterate the standards presented by NAFTA tribunals:

Taking into account the above authorities, the Tribunal concludes that Respondent can only be held liable for denial of justice if Claimants are able to prove that the court system fundamentally failed. Such failure is mainly to be held established in cases of major procedural errors such as lack of due process. The substantive outcome of a case can be relevant as an indication of lack of due process and thus can be considered as an element to prove denial of justice.34Id. ¶ 279. . . . To decide the case at hand, it is sufficient to state that a judicial act breaches both or either of those standards only if the act attains the high threshold which is described in Waste Management.35Waste Management, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/00/3, Award, ¶ 98 (Apr. 30, 2004) (“Taken together, the S.D. Myers, Mondev, ADF and Loewen cases suggest that the minimum standard of treatment of fair and equitable treatment is infringed by conduct attributable to the State and harmful to the claimant if the 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”).

C. Type 3 Arbitration Awards

The Type 3 FET clause does not have any reference to international law or customary international law, which is, according to the Vienna Convention, likely to result in greater protection to investors than Type 1 investment treaties. Stated differently, foreign investors claiming a denial of justice based on Type 3 treaties can argue that more-forgiving standards of review should be applied, and tribunals should consider this argument carefully, as it is consistent with the fundamental principles of treaty interpretation.
In the case of Al Warraq v. Indonesia, the investment treaty in question was titled the “Agreement on Promotion, Protection and Guarantee of Investments among Member States of the Organisation of the Islamic Conference.” Since, however, the agreement contained no FET clause, the FET clause in the UK-Indonesia BIT was applied by way of the Most Favored Nation provision. In this case, the tribunal re-confirmed the general premise that the threshold to recognize denial of justice claims is not low, but the tribunal did not indicate any interpretive process of applying the Vienna Convention:

The Tribunal points out that its role is not to correct procedural or substantive errors that might have been committed by the local courts in Indonesia. As explained by Jan Paulsson in his book Denial of Justice in International Law, the international obligation on states is not to create a perfect system of justice but a system of justice where serious errors are avoided or corrected. The Tribunal also stresses that the threshold to establish a claim of denial of justice is high.36Hesham T. M. Al Warraq v. Republic of Indonesia, UNCITRAL, Final Award, ¶ 620 (Dec. 15, 2014).

Another Type 3 arbitration award, this time based on the Belgium-Luxembourg-Egypt BIT, Jan de Nul v. Egypt presents an interpretation which is no different from that of Type 1 awards of denial of justice. Rather, the tribunal makes reference to the standards presented by the NAFTA tribunals without specific explanations:

The definition adopted by the Loewen tribunal pursuant to which denial of justice implies “[m]anifest injustice in the sense of a lack of due process leading to an outcome which offends a sense of judicial propriety” constitutes good guidance. This is thus the standard that the Tribunal will apply to the acts in relation to the judiciary.37See Jan de Nul, supra note 14, ¶ 192. . . . Denial of justice may occur irrespective of any trace of discrimination or maliciousness, if the judgment at stake shocks a sense of judicial propriety. A reference to the test formulated by the Mondev tribunal is useful in this context.38Id. ¶ 193. . . . Albeit rendered in the context of Article 1105(1) of the NAFTA and the minimum standard of customary international law, the Tribunal finds this test appropriate.39Id. ¶ 194.

D. Type 4 Arbitration Awards

The Type 4 treaty clause does not appear to be an FET clause, or even part of one. Although it is arguable that the clause can be interpreted to become a part of an FET, because an FET clause has an indefinite extension, it is undeniable that the wording of Type 4 treaties is very different from that of the previous three Types.
So far, tribunals have usually found the basis of a denial of justice claim in an FET clause. The tribunal of Chevron v. Ecuador, however, behaves very differently. Although there is an FET clause in the US-Ecuador BIT (Type 2), the tribunal finds the substantial basis of denial of justice in the effective means clause mentioned above. By recognizing the different provision, the tribunal presents a notably less-strict standard. Beginning with the traditional denial of justice principle, the tribunal talks about the practical meaning of basing upon the effective means clause:

The test for establishing denial of justice sets a high threshold. While the standard is objective and does not require an overt showing of bad faith, it nevertheless requires the demonstration of “a particularly serious shortcoming” and egregious conduct that “shocks, or at least surprises, a sense of judicial propriety. By contrast, under Article II(7), a failure of domestic courts to enforce rights “effectively” will constitute a violation of Article II(7), which may not always be sufficient to find denial of justice under customary international law. Given the related genesis of the two standards, the interpretation and application of Article II(7) is informed by the law on denial of justice. However, the Tribunal emphasizes that its role is to interpret and apply Article II(7) as it appears in the present BIT.40Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador, PCA Case No. 34877, Partial
Awards on the Merits, ¶ 244 (Mar. 30, 2010).

The problem of applying the effective means clause was that, as the respondent asserted, it was unclear whether the clause accords specific treatment to foreign investors in individual cases, or whether it only stipulates “system attributes,” the lack of which cannot be a cause of action. The tribunal makes it clear that the clause provides specific protection in individual cases:

While such a dichotomy can theoretically be made, one cannot fully divorce the formal existence of the system from its operation in individual cases.41Id. ¶ 246. . . . While Article II(7) clearly requires that a proper system of laws and institutions be put in place, the system’s effects on individual cases may also be reviewed. This idea is reflected in the language of the provision. The article specifies “asserting claims,” so some system must be provided to the investor for bringing claims, as well as “enforcing rights,” so the BIT also focuses on the effective enforcement of the rights that are at issue in particular cases.42Id. ¶ 247.

Even though the tribunal relaxes the standard that has been applied by other tribunals, the tribunal’s basic position continues to respect the domestic judicial system:

The Tribunal thus finds that it may directly examine individual cases under Article II(7), while keeping in mind that the threshold of “effectiveness” stipulated by the provision requires that a measure of deference be afforded to the domestic justice system; the Tribunal is not empowered by this provision to act as a court of appeal reviewing every individual alleged failure of the local judicial system de novo.43Id.

This demonstrates that it is possible to weaken or strengthen standards for denial of justice while still deferring to a host state’s judicial system. In other words, respecting domestic judicial systems cannot be an excuse for applying a sole standard regardless of a treaty’s wording.
In Chevron, the main issue was whether the undue delay of the Ecuadorian court amounted to denial of justice, a violation of the effective means clause. The tribunal tried exceptionally hard to specify the review standard in the undue delay situation:

The Ecuadorian legal system must thus, according to Article II(7), provide foreign investors with means of enforcing legitimate rights within a reasonable amount of time. The limit of reasonableness is dependent on the circumstances of the case. As with denial of justice under customary international law, some of the factors that may be considered are the complexity of the case, the behavior of the litigants involved, the significance of the interests at stake in the case, and the behavior of the courts themselves.44Id. ¶ 250. . . . Tribunal does not find that a specific amount of delay alone results in an automatic breach of Article II (7) of the BIT.45Id. ¶ 253. . . . Court congestion and backlogs are relevant factors to be considered in determining the period of delay that is reasonable in the circumstances.46Id. ¶ 263. . . . The Tribunal finds that court congestion must be temporary and must be promptly and effectively addressed by the host state if it is to act as a defense to an otherwise valid claim for breach of Article II(7).47Id. ¶ 264. . . . The Tribunal notes in this respect that, once delay has become unreasonable and a breach of the BIT has been completed, a decision issued after that date cannot affect the liability of the State for the undue delay.48Id. ¶ 272.

The notable change stemming from new foundational clause applied with this provision is that the tribunal no longer required the exhaustion of local remedies, which was traditionally regarded as a necessary requirement for establishing a denial of justice claim. More importantly, the reason for not requiring judicial finality is that the effective measure clause is a special provision outside the FET clause (Lex Specialis):

Certain principles of customary international law, such as the principle of “judicial finality” requiring complete exhaustion of local remedies in order to establish State Responsibility for the acts of a State’s judiciary, are not applicable in the same way under this lex specialis.49Id. ¶ 321.

The same “effective means” clause exists in ECT Article 10(12). In Amto, the claimant also asserted that Article 10(12), along with the FET clause, should be applied to a denial of justice claim, and the tribunal recognized that the provision provides a specific obligation to States:

In Article 10(12) of the ЕСТ there is a specific obligation to ensure that domestic law provides an effective means for the assertion of claims and the enforcement of rights. Legislative failures affecting the administration of justice in cases under the ЕСТ can therefore be measured against the express standard established by Article 10(12).50Limited Liability Company Amto v. Ukraine, supra note 27, ¶ 75.

However, in the end, the tribunal failed to distinguish between the two provisions upon which the claims were based, and failed to explain its reasoning in a detailed way:

EYUM-10 has had a frustrating experience in the collection of its debts from Energoatom, but the Claimant has failed to demonstrate that the Bankruptcy Law is not effective for the enforcement of rights within the meaning of Article 10(12) of the ЕСТ, or that its provisions otherwise constitute denial of justice.51Id. ¶ 89.

In many cases, treaty interpretation can essentially be viewed as a journey to determine the parties’ genuine intentions which are reflected by the treaty provisions, and to that extent, the Vienna Convention helps provide a map for the journey. As long as Type 2 treaties contain an “effective means” clause other than an FET clause, an heightened protection for denial of justice claims are likely to reflect the parties’ desired intent, one which should not be ignored by tribunals.

V. Conclusion

Many States have worried that arbitration awards may fail to consider the public interest of host States. The denunciation of the ICSID Convention by Bolivia, Ecuador, and Venezuela partly demonstrated the seriousness of the current situation. In fact, the problem is not about whether a State party’s public interest should be respected, but rather, the fundamental problem is about the creditability of tribunals’ treaty interpretations. This concern explains why States have recently tried to draft treaty provisions in as specific and as tight a manner as possible, as illustrated so clearly by the TPP provisions, a move which attempts to reduce the discretion of tribunals.52European Commission, Investment in TTIP and Beyond – The Path for Reform 2 (2015), available at
http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF (last visited Apr. 14, 2016).
While this paper deals only with tribunals’ approach to denial of justice claims, it shows notable discrepancies between treaty wording and tribunals’ interpretations. It is likely that some tribunals, by considering circumstances we may not know, inevitably apply the same standards. If this is the case, however, tribunals should disclose their interpretive process and present specific and detailed reasons why they chose to apply those standards.

Admittedly, the relevant principles regarding denial of justice claims arise out of customary international law, making it difficult to deviate from traditional jurisprudence. Yet, once the clause becomes integrated into a treaty provision, the entire treaty should follow general principles of interpretation. This means that the scope and content coming from treaty interpretations should differ as treaty wording differs.

While most cases fail to persuasively state the reason for applying the same standards regardless of the treaty terms, there is one indication that treaty-dependent interpretations could remain in accordance with the Vienna Convention. Although not directed to FET claims specifically, the Chevron tribunal suggested the possibility that different standards could exist for denial of justice claims. It would not be surprising to learn that the tribunal applied those standards based on the treaty’s FET clause (Type 2).

Again, this is not to argue that different treaty terms necessarily require different interpretations, but rather that parties in arbitration proceedings have a right to know the reasons that tribunals’ interpretations are the same or different. The parties are the sources of legitimacy which maintain an international arbitration regime. If tribunals continue to disappoint the parties with inconsistent and baseless interpretations, the current arbitration regime is unlikely to continue existing much longer.

Therefore, tribunals should take into account the tools in the Vienna Convention, and explicitly discuss their interpretation process using specific and detailed reasons for their decisions. By explaining the interpretation process more-specifically, it is possible to create a credible, stable investment arbitration system, to the greater satisfaction of all participants.

References   [ + ]

01. United Nations Conference on Trade and Development, World Investment Report 2015, 136 (2015). In the past few years (2008–15), 410 new IIAs have been concluded, and 316 new ISDS cases have been registered.
02. William Burke-White & Andreas von Staden, Private Litigation in a Public Law Sphere: The Standard of Review in Investor-State Arbitrations, 35 Yale J. Int’l L. 283, 285 (2010) (noting that in similar contexts, tribunals are criticized for applying inappropriate standards of review, thus ignoring key elements of investment law disputes)
03. Lise Johnson & Lisa Sachs, Colum. Ctr. on Sustainable Inv., The TPP’s Investment Chapter: Entrenching, Rather than Reforming, a Flawed System 2–3 (2015) (recalling the TTP Article 9.16 stipulation that “[n]othing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental, health or other regulatory objectives.” Note that the clause’s effectiveness is debatable. As discussed later, drafting cannot suggest an absolute solution; it is partially for this reason that the arbitration tribunals’ role remains so central in contemporary investment law).
04. Caroline Henckels, Protecting Regulatory Autonomy Through Greater Precision in Investment Treaties: The TPP, CETA and TTIP, 19 J. Int’l Econ. L. 27, 27 (2016) (remarking that Article 9.6(2)(a) of the TPP specifically delineates that the “Fair and Equitable Treatment” standard includes an obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings, in accordance with the principle of due process embodied in the principal legal systems of the world).
05. Convention on the Settlement of Investment Disputes Between States and Nationals of Other States art. 52(1)(e), Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159.
06. Id. art 50.
07. Int’l Law Comm’n, Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 4(1), U.N. Doc. A/56/10 (Oct. 24, 2001) (“The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State”).
08. See Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2009-23, Opinion of Jan Paulsson, ¶ 22 (Mar. 12, 2012).
09. Vienna Convention on the Law of Treaties art. 1, 2(1)(a), opened for signature May 22, 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) (“VCLT”) (“The present Convention applies to treaties between States”); VCLT art. 2(1)(a) (defining “Treaty” as any “international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”).
10. VCLT art. 31(1) (“[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”).
11. Ole Fauchald, The Legal Reasoning of ICSID Tribunals – An Empirical Analysis, 19 Eur. J. Int’l L. 301,
314 (2008).
12. Jeswald Salacuse, The Law of Investment Treaties 56–72 (2nd ed. 2015) (showing that treaty provisions on expropriation, minimum standard, and national treatment all base their origins upon customary international law).
13. Rudolph Dolzer & Christoph Schreuer, Principles of International Investment Law 178 (2nd ed. 2012); Martins Paparinskis, The International Minimum Standard and Fair and Equitable Treatment 181 (2013).
14. Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan, ICSID Case No. ARB/07/14, Award, ¶ 268 (Jun. 22, 2010); Jan de Nul N.V. and Dredging International N.V. v. Arab Republic of Egypt, ICSID Case No. ARB/04/13, Award, ¶ 188 (Nov. 6, 2008) (“The Tribunal recognizes that the 2002 and 1977 BITs do not comprise a specific provision regarding the miscarriage or denial of justice. It considers, however, that the fair and equitable treatment standard encompasses the notion of denial of justice”).
15. NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions (Jul. 31, 2001), available at http://www.sice.oas.org/tpd/nafta/Commission/CH11understanding_e.asp. (“Article 1105(1) prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to investments of investors of another Party. The concepts of ‘fair and equitable treatment’ and ‘full protection and security’ do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens”).
16. Energy Charter Secretariat, Frequently Asked Questions – Energy Charter, http://www.energycharter.org/process/frequently-asked-questions (last visited Apr. 9, 2016).
17. This 1977 BIT was amended in 2002. Article 3(1) of the 2002 BIT stipulates FET in almost the same way: “Tous les, directs ou indirects, effectués par des investisseurs de l’une des Parties Contractantes, jouiront sur le territoire de l’autre (des autres) Etat(s) Contractant(s) d’un traitement juste et équitable.” (Roughly translated, this means, “All direct or indirect, made by investors of one of the Contracting Parties, shall enjoy fair and equitable treatment in the territory of the other Contracting State”).
18. Saluka Investments BV v. The Czech Republic, UNCITRAL, Partial Award, ¶¶ 285–309 (Mar. 17, 2006) (demonstrating this proposition in relation to the Type 3 Netherlands-Czech BIT (1991), and distinguishing their interpretation from other tribunals’ NAFTA (Type 1) interpretations by presenting a new standard: Conduct which clearly provides disincentives to foreign investors violates the FET clause in the BIT. Additionally, the tribunal offered support for their specific process of interpretation with reference to tools found in the Vienna Convention).
19. The United States–Bahrain BIT (1999), a Type 2 treaty, also utilizes an effective means clause (“Each Party shall provide effective means of asserting claims and enforcing rights with respect to covered investments”).
20. Robert Azinian, Kenneth Davitian & Ellen Baca v. The United Mexican States, ICSID Case No. ARB (AF)/97/2, Award, ¶ 102 (Nov. 1, 1999).
21. Id. ¶ 103.
22. Elettronica Sicula S.p.A. (“ELSI”) (United States of America v. Italy), 1989 ICJ Rep. 15, 28 ILM 1109, Judgment, ¶ 128 (Jul. 20, 1989).
23. Mondev International Ltd. v. United States of America, ICSID Case No. ARB(AF)/99/2, Award, ¶ 127 (Oct. 11, 2002).
24. Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3, Award, ¶ 132 (Jun. 26, 2003).
25. Id. ¶ 134.
26. Id. ¶ 135.
27. Limited Liability Company Amto v. Ukraine, SCC Case No. 080/2005, Final Award, ¶ 76 (Mar. 26, 2008).
28. See Mondev, supra note 23.
29. Id.
30. Liman Caspian Oil v. Kazakhstan, supra note 14, ¶ 263.
31. Id. ¶ 274.
32. Id. ¶ 276 (“Denial of justice is always procedural. There may be extreme cases where the proof of the failed process is that the substance of a decision is so egregiously wrong that no honest or competent court could possibly have given it. Such cases would sanction the state’s failure to provide a decent system of justice. They do not constitute an international appellate review of national law”).
33. Id. ¶ 277 (“A state is responsible if an injury to an alien results from denial of justice. Denial of justice exists when there is denial, unwarranted delay or obstruction of access to courts, gross deficiency in the administration of judicial or remedial process, failure to provide those guarantees which are generally considered indispensable in the proper administration of justice, or a manifestly unjust judgment. An error of a national court which does not produce manifest injustice is not denial of justice”).
34. Id. ¶ 279.
35. Waste Management, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/00/3, Award, ¶ 98 (Apr. 30, 2004) (“Taken together, the S.D. Myers, Mondev, ADF and Loewen cases suggest that the minimum standard of treatment of fair and equitable treatment is infringed by conduct attributable to the State and harmful to the claimant if the 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”).
36. Hesham T. M. Al Warraq v. Republic of Indonesia, UNCITRAL, Final Award, ¶ 620 (Dec. 15, 2014).
37. See Jan de Nul, supra note 14, ¶ 192.
38. Id. ¶ 193.
39. Id. ¶ 194.
40. Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador, PCA Case No. 34877, Partial
Awards on the Merits, ¶ 244 (Mar. 30, 2010).
41. Id. ¶ 246.
42. Id. ¶ 247.
43. Id.
44. Id. ¶ 250.
45. Id. ¶ 253.
46. Id. ¶ 263.
47. Id. ¶ 264.
48. Id. ¶ 272.
49. Id. ¶ 321.
50. Limited Liability Company Amto v. Ukraine, supra note 27, ¶ 75.
51. Id. ¶ 89.
52. European Commission, Investment in TTIP and Beyond – The Path for Reform 2 (2015), available at
http://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF (last visited Apr. 14, 2016).

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