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The Use and Misuse of the
Customary International Law Doctrine of Necessity in International Investment
Arbitration
Doc. JUDr. Katarína
Chovancová, PhD., LL.M., MCIArb, Institute of International and European Law
at the Faculty of Law of the Pan European University in Bratislava, Institute of
State and Law of Slovak Academy of Sciences
Právny obzor, 102, 2019, special issue, pp.
55-71.
Published online: 15.1.2020
Abstract. Within the realm of international law, there
are two types of the state of necessity doctrine in customary international law
(CIL) and treaty-based regimes, including the regime subordinated to
international investment law. The concept of necessity defence, based on the CIL
is embedded in Article 25 of the International Law Commission’s Draft Articles
on the Responsibility of States for Internationally Wrongful Acts as one of
several circumstances, which guarantee preclusion of the wrongfulness of the
state’s conduct in international law. The CIL necessity defence as a secondary
rule of state responsibility may be invoked only after the breach of any
international obligation (except for the peremptory norm of international law)
was established according to primary rules of the particular regime of one of
many areas of international law. The threshold for passing the Article 25
necessity test is extremely high and resulted in its rare use in practice, yet
the host state’s success with invoking the bilateral investment treaty (BIT)
necessity defence may be achieved easier, but also depends on the wording of the
non-precluded measure (NPM) clause in the BIT. The NPM clause serves as an
additional layer of protection for BIT parties and should be formally and
substantially distinguished from the CIL necessity. Actually, the nature of NPM
provisions in BITs has been recently conflated with the CIL necessity in five
famous international investment arbitrations against Argentina, when the nexus
requirement in Article XI. of the US - Argentina BIT was mixed up with that of
the CIL necessity doctrine. The thesis of this article is that as a part of lex
specialis, the treaty based necessity defence in international investment law,
included in the BIT’s NPM provision under no account can be perceived as having
some inferior status to the CIL necessity unless the BIT parties explicitly
agreed on such NPM clause’s status in the BIT.
Keywords: customary international law,
necessity defence, bilateral investment treaties, international investment law,
responsibility of states, non-precluded measures, investment arbitrations
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
THEORETICAL REVIEW FOR ISSUES OF STATE AND LAW.
Právny obzor is peer-reviewed journal and is indexed in SCOPUS and HeinOnline database (INDEX TO FOREIGN LEGAL PERIODICALS).
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OPEN ACCESS