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Libyan Arab Foreign Investment Company (Lafico) and the Republic of Burundi

Arbitration.  04 March 1991 .

Published online by Cambridge University Press:  01 January 2021

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Abstract

Treaties — Termination — Severance of diplomatic relations — Effect on bilateral treaties — Whether Treaty terminated or rendered inapplicable by severance of diplomatic relations between parties — Decision turning on whether maintenance of diplomatic relations indispensable to application of Treaty — Vienna Convention on the Law of Treaties, 1969, Article 63

Treaties — Termination — Supervening impossibility of performance — Bilateral treaties — Burundi–Libya Technical Co-operation Agreement, 1973 — Burundi-Libya Agreement establishing Economic Development Corporation, 1975 — Burundi preventing Libyan personnel from participating in activities of Economic Development Corporation — Whether Agreement terminated due to supervening impossibility of performance — Decision turning on whether measures taken by Burundi constituting breach of Agreement — Vienna Convention on the Law of Treaties, 1969, Article 61

Aliens — Expulsion — Discretion of host State to order expulsion of aliens from its territory — Limits of discretion — Minimum international standards — Requirement that State establish factual grounds giving reasonable cause for expulsion — Collective expulsion — Whether unlawful under international law — Whether presumption that collective expulsion violating minimum standards — Simultaneous expulsion by host State of aliens and diplomatic officials of same nationality — Whether provisions governing expulsion of diplomatic officials applicable to aliens — Burundi expelling all Libyan nationals on its territory on grounds of national security — Failure by Burundi to make any prior investigation as to whether expelled aliens causing threat to national security — Whether violating minimum standards

Economics, trade and finance — Economic development corporation established by inter-State agreement — Rights of shareholders — Agreement between Libya and Burundi establishing joint economic development corporation for purpose of investing in the economy of Burundi — Agreement prohibiting signatories from taking any measures violating the rights of shareholders in corporation — Burundi expelling key Libyan officials of development corporation and prohibiting all Libyan nationals from entering its territory — Whether constituting violation of Libyan shareholders' rights and thereby a violation of Agreement

International organizations — Legal status — joint economic development corporation established by bilateral Agreement — Agreement between Libya and Burundi establishing joint economic development corporation for the purpose of investing in the economy of Burundi — Whether joint economic development corporation a public international body — Effect on corporation of severance of diplomatic relations between signatories to Agreement — Libyan Arab-Burundi holding company

State responsibility — Breach of Treaty — Applicable principles — Whether responsibility for breach of Treaty governed by same principles as breach of other international obligations — Circumstances excluding wrongfulness — Force majeure — Necessity — Agreement between Burundi and Libya establishing joint economic development corporation for purpose of investing in the economy of Burundi — Agreement prohibiting signatories from taking any measures violating the rights of shareholders in corporation — Burundi breaching Agreement by denying Libyan shareholder access to development corporation — Whether Burundi allowed to invoke force majeure and necessity — International Law Commission Draft Articles on State Responsibility

State responsibility — For injury to aliens — Duty to protect aliens — Prohibition against arbitrary expulsion

Diplomatic relations — Severance — Legal effect — Severance of diplomatic relations by receiving State — Whether severance of diplomatic relations providing grounds for terminating Treaty between receiving and sending State — Vienna Convention on the Law of Treaties, 1969, Article 63

Diplomatic relations — Expulsion of diplomatic officials — Whether receiving State permitted arbitrarily to expel diplomatic officials — Vienna Convention on Diplomatic Relations, 1961, Article 9

Treaties — Interpretation — Rules of interpretation — Ordinary meaning of words — Context — Travaux préparatoires — Vienna Convention on the Law of Treaties, 1969

Claims — Breach of Treaty — Remedies — Waiver of remedy — Claimant State waiving right to claim for restitutio in integrum — Damage — Non-material damage to State — Whether satisfaction only remedy — Whether award of monetary compensation possible — Claim brought by State on behalf of nationals unlawfully expelled from territory of foreign State

Damages — Losses for which damage recoverable — Non-material damage — Non-material damage to States — Violation of solemn obligation — Insult — Whether award of monetary compensation available as remedy — Non-material damage to individuals — Unlawful expulsion — Loss of reputation and honour — Whether award of monetary compensation available as remedy

Damages — Measure of damages — Breach of inter-State agreement establishing joint economic development corporation — Damnum emergens and lucrum cessans — Net asset value of corporation at time of unlawful act causing breach of agreement — Interest — Rate of interest — Date from which interest payable — Legal costs Sources of international law — Customary international law — Draft Articles of International Law Commission as statement of customary international law — International Law Commission Draft Articles on State Responsibility

Arbitration — Ad hoc international arbitration — Applicable law — Powers of tribunal — Procedure — Whether parties permitted to raise new ground at oral stage of proceedings — Arbitration Tribunal established by agreement between Burundi and the Libyan Arab Foreign Investment Company to hear dispute concerning bilateral agreement establishing Libyan Arab-Burundi Holding Company

Type
Case Report
Copyright
© Cambridge University Press 1994

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