including an order to preserve evidence in the possession or control of a disputing party."
262. The tribunal's award may provide any of the following reliefs:
♦ a declaration of the legal rights and duties of either party, including a declaration that the Contracting Party has failed to comply with its obligations under the MAI;
♦ damages;
♦ restitution where appropriate;
♦ with the agreement of the parties, any other remedy which the tribunal considers fit.
263. The award shall be final and binding on the parties and shall be carried out without delay by the party against whom it is made, subject to any available supervisory or appellate procedures. A copy of the award shall be delivered to the Parties Group by the Secretary-General of ICSID, the Secretary-Secretary-General of the ICC or by the UNCITRAL tribunal, as the case may be.
(c) Subrogation
264. The last article (p.42) deals with subrogation, a topic which is invariably referred to in bilateral and multilateral agreements. Subrogation is a common-law rule which entitles a person who, in pursuance of a guarantee or a contract of insurance, has indemnified another in respect of a claim, to be put in his place and subrogated to his rights vis-a-vis any person from whom satisfaction of the claim is due. Applying this common-law rule to the situation of foreign investors who have been compensated by, and have consequently assigned their rights to, the Contracting Party of their nationality or country of permanent residence in respect of a claim relating to their investment in the territory of another Contracting Party, the latter shall recognize such assignments.
References
1. The other two are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These important international conventions deal with fundamental rights of individuals and groups vis a-vis states and are not concerned with international economic cooperation.
2. Dr. Franziska Tschofen listed it among 26 instruments surveyed in "Multilateral Approaches to the Treatment of Foreign Investment", Foreign Investment Law Journal, Vol. 7 No. 2, 1992, pp. 384-426.
3. for that reason 12 of the developing countries abstained, and two voted against the resolution, which was adopted by 87 votes in favour.
4. Adopted by a vote of 108 for, 1 (U.K.) against and 17 abstentions, including the U.S., Japan, Norway, France, Denmark, and Belgium.
5. The resolution was adopted by 120 votes in favour, with 6 developed countries voting against and 12 abstaining.
6. Other resolutions are: Resol. 1314 (XII) of 12 December 1958; Resol. 1515 (XV) of 15 December 1960; Resol. 45 (III) of 18 May 1972; Resol. 3037 (XXVII) of 19 December 1972; Resol. 3082 (XXVIII) of 6 December 1973; Resol. 3201 and 3202 (S-Vl)ofl May 1974.
7. It will be seen later that the OECD draft MAI contains a similar provision.
8. Brownlie p. 542.
9. Some writers consider that such power of expulsion is subject to the limitation that discretion must be exercised in good faith. See Brownlie, p. 520.
10. The general Claims Commission of the United States and Mexico in the Neer Claim, cited op. Cit. P. 525.
11. See the authorities cited in Brownlie p. 544, n. 23.
12. See Dolzer, New foundations of the Law of Expropriation of Alien Property, 75 Am.
J. Int'l L. (1981), 561 and Schachter, compensation for Expropriation, 78 Am J. Int't L. (1984), 121-30.
13. E.g. l'Accord Multialteral sur les Droits Fondemantaux des Nations des Etats de la Communaute'
14. UNCTAD Report of 25 May 1997 on "Bilateral Investment Treaties in the Mid 1990s, p. 15.
15. They are Hungary, Poland, Portugal, Yugoslavia, Australia, Canada, Japan, New Zealand and Spain.
16. These are Angola, Benin, Burundi, Cameroon, Central African Republic, Chad, Comoros, Congo, Cote d'lvoire, Djibouti, Egypt, Gabon, Ghana, Guinea, Guinea-Bissau, Madagascar, Mauritania, Mozambique, Namibia, Niger, Rwanda, Senegal, Somalia, Sudan, Tanzania, Togo, Zaire and Zambia.
17. Antonio R. Parra, Principles Governing Foreign Investment, as Reflected in Foreign Investment Codes, Foreign Investment Journal, Vol. 7, No. 2 (1992), pp. 428-452, on which I have relied for the information used in this chapter.
18. See P. Weil, Les clauses de stabilization et d'intangibilite' inserres' dans les accords de de'veloppement e'conomique, Me'langes Rousseau (1974) p. 229 cited in John Westberg and Bernard Marchais, General Principles Governing Foreign Investment
as Articulated in Recent International Tribunal Awards and Writings of Publicists, supra, pp. 486-87. The suggestion advanced by Weil is analogous to the English company law principle which enables a company to exercise its power to amend its articles of association and, nevertheless, makes it liable to compensation if such amendment amounts to breach of a contract of a director's employment. See
Gower's Principles of Modern Company Law, 5Ih. Ed. P. 546 where he cites Lord
Porter in Southern foundries Ltd. V. Shirlaw (1940) A.C. 701, H.L. at 740.
19. OECD publication No. DAFFF/MAI (97) 9 of 20-21 February 1997.
20. Note for example U.S./Egypt which runs into almost two pages and defines six
terms.
21. See also Art. II.8/Egypt; Art. II.6 U.S./Morocco and Art. 11.10 U.S./Senegal.
22. ICSID Review: Foreign Investment Law Journal, vol. 7, No. 2, 1992, pp. 299-300 23. Seep. 16, n. 20
24. See supra., p....
25. Some of the Swiss treaties, which after all, are not true BITs but agreements on commercial and economic cooperation akin in some respects to FCNs, do not include a provision on expropriation.
26. See for example Articles 2 & 3 of the German BITs with Algeria, Gabon, Togo and Tunisia.
27. See Articles 2, 3 & 5 of U.K./Tunisia and Articles 3, 4, & 7 of U.K./Ghana.
28. Netherlands/Uganda, Articles 6, 7 & 9 and Netherlands/Ghana, Articles 3 & 6.
29. Some Swiss BITs, e.g. the treaty with Togo, contain articles dealing in great detail with compensation in the event of expropriation without and none making it expressly illegal for one party to expropriate investments of the other party's investors. Cameroon/Belgium, deals with the subject without using the terms
"expropriation" and "Nationalization"; Article 4.1 provides that neither Party shall
"take any measure that is private or restrictive of ownership with regard to investments located in its territory, including any measure having a similar effect."
30. See Mohamed I. Khalil, "Treatment of Foreign Investment in Bilateral Investment Treaties" ICSID Review: Foreign Investment Law Kpirma;. Vp;/ 7, No. 2 (1992), p.
376.
31. Op. Cit. 374-375.
32. Ian Brownlie, Principles of Public International Law, 4th. Ed., p. 35 et seq.
33. Although Clause 1. A stipulates 60 days, Clause 1. b says 50 days; it is assumed that the latter is a typographical error.
34. A bracketed alternative stipulation requires that a request for the Parties Group's consideration has to be made jointly by both Parties. It is suggested that the earlier provision is more appropriate.