Book contents
- Frontmatter
- Contents
- Foreword by Professor Sir Elihu Lauterpacht, CBE, QC
- Authors' preface to the second edition
- Table of cases
- List of abbreviations
- Text of the ICSID Convention
- Procedural calendar
- PREAMBLE
- CHAPTER I International Centre for Settlement of Investment Disputes
- CHAPTER II Jurisdiction of the Centre
- CHAPTER III Conciliation
- CHAPTER IV Arbitration
- Article 36 Request for Arbitration
- Article 37 Composition of Tribunal
- Article 38 Appointment by Chairman
- Article 39 Nationality of Arbitrators
- Article 40 Qualities of Arbitrators
- Article 41 Decision on Jurisdiction
- Article 42 Applicable Law
- Article 43 Evidence
- Article 44 Rules on Procedure
- Article 45 Default of a Party
- Article 46 Ancillary Claims
- Article 47 Provisional Measures
- Article 48 Award
- Article 49 Dispatch, Supplementation and Rectification
- Article 50 Interpretation
- Article 51 Revision
- Article 52 Annulment
- Article 53 Binding Force
- Article 54 Enforcement
- Article 55 State Immunity
- CHAPTER V Replacement and Disqualification of Conciliators and Arbitrators
- CHAPTER VI Cost of Proceedings
- CHAPTER VII Place of Proceedings
- CHAPTER VIII Disputes between Contracting States
- CHAPTER IX Amendment
- CHAPTER X Final Provisions
- Final Clause
- Consolidated bibliography
- Index by article
- Index by subject
Article 42 - Applicable Law
from CHAPTER IV - Arbitration
Published online by Cambridge University Press: 07 September 2010
- Frontmatter
- Contents
- Foreword by Professor Sir Elihu Lauterpacht, CBE, QC
- Authors' preface to the second edition
- Table of cases
- List of abbreviations
- Text of the ICSID Convention
- Procedural calendar
- PREAMBLE
- CHAPTER I International Centre for Settlement of Investment Disputes
- CHAPTER II Jurisdiction of the Centre
- CHAPTER III Conciliation
- CHAPTER IV Arbitration
- Article 36 Request for Arbitration
- Article 37 Composition of Tribunal
- Article 38 Appointment by Chairman
- Article 39 Nationality of Arbitrators
- Article 40 Qualities of Arbitrators
- Article 41 Decision on Jurisdiction
- Article 42 Applicable Law
- Article 43 Evidence
- Article 44 Rules on Procedure
- Article 45 Default of a Party
- Article 46 Ancillary Claims
- Article 47 Provisional Measures
- Article 48 Award
- Article 49 Dispatch, Supplementation and Rectification
- Article 50 Interpretation
- Article 51 Revision
- Article 52 Annulment
- Article 53 Binding Force
- Article 54 Enforcement
- Article 55 State Immunity
- CHAPTER V Replacement and Disqualification of Conciliators and Arbitrators
- CHAPTER VI Cost of Proceedings
- CHAPTER VII Place of Proceedings
- CHAPTER VIII Disputes between Contracting States
- CHAPTER IX Amendment
- CHAPTER X Final Provisions
- Final Clause
- Consolidated bibliography
- Index by article
- Index by subject
Summary
INTRODUCTION
Purpose
The Convention does not provide substantive rules for the relationship between host States and foreign investors. It is merely designed to establish a procedural framework for the settlement of investment disputes. Suggestions, made in the course of the Convention's drafting, to offer some substantive guidance to tribunals (History, Vol. II, pp. 418 et seq.) were not pursued (at pp. 465, 472, 570). Doing so would have led to insurmountable difficulties in trying to reconcile sharply conflicting positions and would have endangered the entire project. At the same time, it was considered necessary to offer some legal security and predictability concerning the outcome of arbitration proceedings.
Art. 42 provides a mechanism whereby the tribunal is to select the appropriate rules of law for the particular dispute. It is designed to combine flexibility with certainty. Flexibility by granting maximum autonomy to the parties in choosing rules, certainty by ensuring that the tribunal will find appropriate rules even in the absence of such a choice. The aim of flexibility is served by the first sentence of para. (1), on agreement by the parties, and by para. (3), extending party autonomy to equitable principles.
- Type
- Chapter
- Information
- The ICSID ConventionA Commentary, pp. 545 - 639Publisher: Cambridge University PressPrint publication year: 2009