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ICSID Arbitral Decision

Published online by Cambridge University Press:  27 February 2017

Monroe Leigh
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Type
Judicial Decisions
Information
American Journal of International Law , Volume 81 , Issue 1 , January 1987 , pp. 222 - 225
Copyright
Copyright © American Society of International Law 1987

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References

1 (Indonesian) Foreign Capital Investment Law, Act. No. 1/1967 (Jan. 1967).

2 ICSID was established by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington, D.C., Mar. 18, 1965, 17 UST 1270, TIAS No. 6090, 575 UNTS 159 [hereinafter cited as ICSID Convention].

3 Amco Asia Corp. v. Republic of Indonesia, ICSID Case. No. ARB/81/1 (Nov. 21, 1984) (award on the merits), excerpted in 24 ILM 1022 (1985). An award on jurisdiction in this matter appears at 23 ILM 351 (1984).

4 ICSID Convention, supra note 2, Art. 52(1)(b), (d) and (e).

5 The committee relied on Article 42 of the ICSID Convention, supra note 2, which provides in relevant part:

The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable.

6 Klockner v. Republic of Cameroon, ICSID Case No. ARB/81/2 (May 3, 1985) (decision annulling award of Oct. 21, 1983), reprinted in 1 Foreign Inv. L.J. 89 (1986).

7 No. ARB/81/1, slip op. at 7–8, para. 20.

8 Id. at 38, para. 98.

9 Had the tribunal addressed AMCO’s claim that Indonesia was unjustly enriched by taking over AMCO’s investment without paying compensation, there is indication that the committee might have reached a different conclusion. See slip op. at 36, para. 96.

10 Id. at 16, para. 43.

11 Id. The committee followed the analysis in Klockner, supra note 6, at paras. 61 and 117–20, and in Arbitral Award made by the King of Spain on 23 December 1906 (Hond. v. Nicar.), 1960 ICJ Rep. 192 (Judgment of Nov. 18).

12 The committee referred to ICSID Arbitration Rule 34, which provides in relevant part: “The Tribunal shall be the judge of the admissibility of any evidence adduced and of its probative value.”

13 Klockner, supra note 6, para. 61.

14 ICSID Convention, supra note 2, Art. 52(6).