This article is written by Kanika Upadhyaya, pursuing a Certificate Course in Arbitration: Strategy, Procedure and Drafting from Lawsikho.com.

Introduction

ALTERNATIVE DISPUTE RESOLUTION is an emerging legal discipline opening novel dispute resolution avenues for parties who desire to settle discord outside Court in a speedy and cost-efficient manner. Such Dispute Resolution Mechanisms are flexible enough to incorporate new Modes and Procedures as per suitability of parties. It reduces the burden of Courts to readily dedicate time and resources in focusing on more grave issues as and when they arise. Parties to engage in such Mechanisms with a sense of confidence, place greater trust in decisions arrived at, rely on participants who value their choices made, henceforth create a private environment for peaceful resolution which is rarely possible in statute driven Courts and Tribunals.

Arbitration being one such mode promoted and instilled at both Domestic and International level often considering the binding nature of the Award combined with time-bound resolution and flexibility in process. International Arbitration blends both Civil Law and Common Law notions^[1] to bring parties from distinct socio-legal backgrounds on an equal pedestal. With the advent of some Permanent, Credible Institutions like ICC, SIAC, LCIA etc. a trend in opting for Arbitration to solve any potential disputes can be observed not just by Companies and Financial Institutions but also by States.

This article throws light on the Oldest Permanent International Arbitral Institute –“PERMANENT COURT OF JUSTICE” (P.C.A) Adjudication Mechanism in contemporary times via Case Analysis.

COUR PERMANENTE D’ARBITRAGE (PERMANENT COURT OF JUSTICE) (hereinafter P.C.A) is a Permanent Inter-Governmental Organization formed in 1899 at the Hague with aim of providing Alternate Dispute Resolution services like Arbitration, Mediation/Conciliation, Fact-Finding or Inquiry etc. into conflicts of global stature. It works in cooperation with the International Court of Justice (I.C.J) but in essence, is an Arbitral Tribunal.^[2]  Originally instituted to settle disputes amicably between the states, it gradually developed into a dynamic Institution covering disputes pertaining to not just between states ^[3] but also entered realm of Private International Law^[4] . The underlying objective was to resort to Arbitration soon after, diplomacy^[5] or any other viable means, fall short of solution.^[6] Currently P.C.A has 122 member states. In a vein similar to any other Arbitration Agreement, Parties choosing P.C.A as their forum, must mention the language of proceedings, degree of confidentiality ^[7]and could appoint maximum 4 Arbitrators who are well versed in International Law, morally sound and willingly occupy the role of an Arbitrator in good faith. ^[8]

Jurisdiction of permanent court of arbitration

Since P.C.A owes its existence to Convention of 1899 as well as 1907, signatories thereof undertook to establish as well as maintain P.C.A.^[9] However, there is a misconception about the mandate of Arbitration only to be followed once members ratified either or both the Conventions.^[10] It is also not essential to compulsorily adhere to Guidelines provided in either of 2 Conventions while going for Arbitration under P.C.A. The Arbitration clause/ Agreement is the “Bible” from which extent of P.C.A Convention applicability is determined. The doctrine of Severability is applicable here –i.e. invalidity of main contract not ipso facto takes away jurisdiction of P.C.A.^[11]

Since P.C.A. client’s spans across States to Private Parties, International as well as Intergovernmental Organizations, Members of the Court may or not be the Arbitrators in case Proceedings are of “Summary” ^[12]nature or a “Special Tribunal” is constituted. Yet, if parties submit themselves to the P.C.A Arbitration Tribunal, parties need to select Arbitrators from the List of members provided.^[13]Arbitral Award passed by P.C.A is final and binding while other Mechanisms like Mediation, Fact-finding are not binding on the parties.^[14]

Unlike Indian Arbitration Laws charting out specific subjects to be covered under the purview of Arbitration, P.C.A does not limit itself to an exhaustive list of areas eligible as “Arbitrable” hence covering plethora of subjects as agreed between the parties in Actual Agreement to be subjected to P.C.A Arbitration.^[15]  The next major difference from Indian Law is that P.C.A Guidelines also do not impose any fixed time limit of settling disputes while leaving it to the Original Contract in entirety. Usually an odd number of Arbitrators are preferred to avoid a deadlock; it is peculiar that parties are allowed to mutually select maximum 4 arbitrators. With headquarters in The Peace Palace Hague, P.C.A also holds Arbitration Proceedings in any place outside Hague, as per “Seat” determined by parties in Agreement. It also ensures that no bar of official language comes forth and that Proceedings conducted in language both parties have agreed to as per their convenience.^[16] Separate Treaties and Rules are enacted in field of Energy^[17], Human Rights,^[18] Investment^[19] and Finance^[20] providing suitable recourse of Mediation, Conciliation or Arbitration. Mauritius has evolved as a preferable neutral forum for international arbitration enlisting support of P.C.A‘s 1^st permanent office beside Hague and conferring on it powers required for Court related assistance in Arbitration (excluding interim reliefs) which shall be final and non – appealable.^[21]

Bank for international settlements tribunal

Apart from above mentioned Conventions and Rules, numerous other Business, Investment, Trade treaties (Bilateral/ Multilateral), Model Agreements, Instruments or National Legislations which refer to P.C.A as Appointing Authority or look up for Administrative Assistance for conducting Proceedings. Few also adopt a part of P.C.A Rules for conduct of Proceedings.^[22]

It is commendable that generally Treaties and other International Instruments and established Institutions limit their scope of application or aid to its members, but P.C.A‘s services can be availed by anyone who is not an existing member or signatory, if appropriately referred to it.

Case analysis: Nissan motor co., ltd. v. Republic of India

Facts of the case

• Nissan and its French counterpart Renault (hereinafter “NR) entered into a Memorandum of Understanding (MOU) in 2008 with Government of Tamil Nadu (hereinafter “TN”) to invest into an “Ultra Mega Integrated Automobile Project” to establish an integrated vehicle manufacturing and assembling unit at Oragadam Industrial Park, near Chennai.
• NR was promised certain incentives to be paid in return to its investment. NR on its part invested Rs 6,092 Crores in Unit but TN failed to pay due to incentives (hereinafter “Claimed Incentives”) timely and hence an outstanding amount of Rs 2,057.36 Crores is accrued for a period of 2 years.
• Such unjustified delay was arbitrary and breach of Fair and Equitable Treatment Clause (Hereinafter “FET”): ARTICLE 87 of CEPA. Nissan claims full payment of an above-mentioned sum in addition to interest for delayed payment.

• India denies any such outstanding payment to NR and raises following broad contentions in support of its denial:

1. Tribunal improperly constituted and hence incompetent to preside over matter.
2. NR claims are within the Taxation Regime and thus outside the scope of CEPA.
3. NR claims are barred by Time Limitation.
4. NR is not permitted to initiate 2 parallel proceedings in both the Madras High Court as well as before the Tribunal, unless withdraws its earlier proceedings before the High Court.

• Seat was decided to be in Singapore while the official language was English.
• PCA International Bureau acted as an Administrator as well as Registry.

Contentions of the parties

Incompetent jurisdiction under article 96 CEPA and article 9 UNCITRAL Rules

India’s contention ^[23]

1. A Presiding Officer had to be appointed as per Procedure mentioned under ARTICLE 96(11) of CEPA by PCA Secretary-General (hereinafter “SC”) but he failed to follow the same. The appointment had to be made as per agreement between the parties and that in absence of any alternate default Mechanism of Appointment; ARTICLE 9 of UNCITRAL was applicable.
2. India never given an adequate opportunity to examine and form its own opinion about the potential conflicting interest between Arbitrators selected by it and names of potential Presiding Arbitrators mentioned in the List.
3. India contends that it never impliedly consented to List Procedure^[24] has formally raised its voice clearly with Commencement of Proceedings and never willingly participated in PCA Appointment since initially contemplated it to be Negotiation and later were compelled to accept List which was denied suspension by Appointing Authority (hereinafter “AA”).

Nissan’s contention

1. Nissan rejects India’s interpretation of ARTICLE 96(11) CEPA and ARTICLE 9 UNCITRAL stating that ARTICLE 96(5)^[25]overrides ARTICLE 9^[26] regarding Appointment method and that PCA was responsible to step in on lapse of 60 days without Appointment of Arbitrator post submission of dispute.
2. India consciously participated since initial Appointments and did not timely object even when it was brought to its notice that List was being prepared by PCA. Instead, put forth its conditions before SC regarding conduct of List process.
3. The waiver was in context of Appointment Procedure and not the time India challenged List Procedure.
4. Tribunal invites views for Appointment of all Arbitrators and that Presiding Arbitrator was appointed after J. Khehar was appointed as 2^nd
5. List Process had to be continued since ARTICLE 9 was inapplicable and couldn’t be stopped after J. Prasad’s name was removed from List.
6. All Arbitrators are bound to disclose their conflict of interest since time aware of their Appointment.

No 2 parallel proceedings

India‘s contention

1. Nissan indirectly controlled subsidiary NMIPL filed a Writ Petition before Madras High Court and thus upon initiating and not withdrawing Local Proceedings within 30 Days of submitting dispute under CEPA^[27], Nissan is debarred to approach Tribunal under ARTICLE 96(5),^[28] since the origin of dispute is the same or considerably overlapping, hence the same outcome from both Proceedings.^[29]
2. Supporting “Fundamental Test” over “Triple Test” as pragmatic and devoid of unusual limitations straining good faith^[30]and eventually less effective^[31] on Parallel Proceedings which share the same source of dispute.
3. Cites Barcelona Traction Case^[32], to focus on “Factual Economic Reality” by lifting veil rather than engaging in intricacies of distinct Corporations and other formalities that diverts attention from the focal point of being the same economic venture despite prima facie seeming distinct.
4. It is not real but the namesake difference that is being alleged by Nissan as written in Madras High Court regarding Constitutional provision violation while Tribunal overlooks Treaty obligations breach (SAME SUBSTANCE).

Nissan’s contention

1. Language of ARTICLE 96(6)^[33] highlights Triple Test. It is pertinent to note that NMIPL being a marketing agency cannot be a “Disputing Investor” while Nissan itself commenced Arbitration and is out of purview of TN VAT Act.^[34] NMIPL deals directly with TN regarding tax issues and doesn’t avail any benefit under 2008 MOU.
2. Constitutionality of TN VAT Act is challenged before Madras High Court for resultant hardship in Tax Computation which is in material contrast to Delayed Incentive Payment: a breach of CEPA Treaty condition.
3. On the Triple Test, a 3 pronged condition needs to be stringent to serve the purpose as any laxity will impact submissions of investment disputes even in Domestic Law.^[35]
4. Government Orders passed periodically and TN VAT Act were not solely related to Amended Business Scheme (hereinafter “ABS”) and altogether different from MOU^[36] or CEPA. Hence neither belongs to same origin nor same relief claimed.
5. H and H Enterprises v Egypt^[37], Chevron v. Ecuador^[38] and Supervision v. Costa Rica^[39] are all rebutted on the grounds that first 2 don’t see direct submission of dispute for Arbitration while last one doesn’t clearly reflect applicability of Fundamental Test.

Dispute primarily within taxation regime under article 10(1) CEPA

1. The Constitution permits both the Central and State Government to levy Tax on Inter State Trade and Commerce and Sale-Purchase of Goods within States respectively.
2. Central Sales Tax Act^[40] (hereinafter “CST”) enacted for Inter State Trade, to be collected by States and may also grant exemptions as appropriate.
3. TN passed Tamil Nadu Value Added Tax Act,^[41](hereinafter “TNVAT Act”) offering certain Tax Rebates and Other Incentives as assessed by Tax Authorities^[42]to Investors in State Infrastructure and Heavy Industries . RN too was encouraged to invest by assuring application of “Support Package” in MOU.
4. Relevant Government Orders (hereinafter “GO”) were passed entitling RN for VAT Rebates on Input, Output and Capital Goods.
5. Relevant Authority State Industries Promotion Corporation of Tamil Nadu ( hereinafter “SIPCOT”) and subsequently Special Cell of the Commercial Taxes Department (hereinafter “MOU Cell”) would verify documents submitted to issue an Eligibility Certificate and MOU Cell Certificate respectively to proceed with actual payment to RN.
6. RN modified Initial Business Scheme of Engine Manufacturing wherein incorporated NMIPL and RIPL as Sales and Marketing Companies of their respective branded vehicles, eventually shelling out more taxes and reaching ceiling time at a much faster pace.

India’s contention

1. Amended Business Scheme (hereinafter “ABS”) was in total opposition to long term benefit prospects as calculated in 21 year ceiling by TN . The State Government didn’t have adequate funds to repay such a rise in Incentives suddenly.
2. Both NMIPL and RIPL claimed the same sum of rebate on Inputs separately under MOU, thereby “Double Benefit” being received by Nissan.
3. So in order to tackle such unjustified benefit, GO proclaimed to adjust Input Tax with Total Output Tax and forfeit the remaining Input Tax portion.
4. Cited Feldman v Mexico^[43], OEPC v Ecuador^[44] and EnCana v Ecuador^[45] in support of exclusion of Tax Matters unless a “Claw Back” Provision provided otherwise.
5. MOU itself stated such Tax Rebates and they are being implemented by Executive GO since the Legal Framework on Taxation provides for the same.
6. SIPCOT merely assisted in payment while the decision was taken by MOU Cell.

Nissan’s contention

1. TN prosperity lies in the fact that Investors including RN continue to invest. Further MOU never purported any plausible connection of 21 year limitation to overall Investment and Rate of Payment of Incentives.
2. Snubs “Double Benefit” contention highlighting that dealers receive Input Tax Refund under TNVAT Act is distinct from Investment Incentives provided under MOU which is computed on gross Input and Output VAT. Also no same rate of Tax Rebate was being demanded by NMIPL and RIPL.
3. As a Precautionary Step, ABS was approved by TN despite RN not obliged to do so under MOU Terms.
4. TN did make payment of Incentives after ABS started operating from 2012-14.
5. Refund as a term for convenience used and certain Tax Statutes referred to for calculations, yet disbursement mechanism as well as substantially not covered by any particular Taxation Statute.
6. SIPCOT under the Industries Department and not MOU Cell which has a final say in determining eligibility, issuance of Certificates and ultimate payments.
7. India failed to furnish any evidence to prove Incentives were granted under Taxation regime nor MOU mentions anything in this regard.
8. GO actual nature is “Administrative” rather than “Executive” powers under any Law in force.^[46]
9. Substantial link to Taxation Matters to be observed rather construing any remote reference within its ambit, as depicted in En Cana Case.^[47]
10. Mere presence of “Claw Back” provision in a Treaty or Agreement, not in all cases means that it is a Taxation Measure and hence out of scope of Tribunal’s Jurisdiction.^[48]
11. Incentives were offered to encourage Investment and are Contractual in nature rather than Taxation.

Dispute barred by limitation provided in article 96(9) CEPA

India’s contention

1. A Rigid Limitation has been pronounced in Clause 9 for dealing with the actual cause of dispute that can be possibly resolved, even in case of continuous breach, cannot extend beyond Limitation.^[49]
2. An Analytical Approach to observe the Actual/Constructive Knowledge as per reasonable conduct of Parties in pursuance of Agreement.
3. Nissan failed to initiate Resolution within stipulated 3 years after becoming aware of all its losses owing to breach under ARTICLE 87^[50] Fair Equitable Treatment.

Nissan’s contention

1. Knowledge of Breach is different from Knowledge of Actual Losses as every Breach incident does not mean invoking Arbitration for Losses sustained. Thus continuous failure of TN to pay due Incentives shall be considered as knowledge of breach of legitimate expectations particularly when TN assured to clear all due payments.
2. Whether rationale of UPS v Canada^[51] for proper ending of repetitive conduct or Spence v. Costa Rica^[52], in either case Nissan’s claim is not time barred.
3. Non Continuous rather Individual Breach of each Certificate provided by MOU Cell shall be considered for starting of 3 Year Period.
4. Umbrella Clause would have been in use had TN denied payment collectively, in contrast to repeated breach arising from Single Claim or Several Independent Claims.

Award of the tribunal

Tribunal’s analysis of improper constitution

1. Tribunal’s competence to rule on its own Authority is enunciated in both UNCITRAL^[53] and CEPA.^[54]
2. CEPA and UNCITRAL propose distinct Appointment Mechanisms of Arbitrators. However actual mechanism lies in CEPA^[55] over UNCITRAL, letter to supplement it.
3. CEPA never enunciates 2 Parallel time periods of Appointment and word “Arbitrators” used indicates that within 60 Days of submission of dispute, Appointment Process was to be concluded.
4. Hence India met its deadline of 60 Days and the Presiding Arbitrator was also appointed within the same time frame.
5. SC acted reasonably in appointment of Arbitrators and no need to halt List prepared since SC prerogative^[56] was to be exercised independently in Appointment of 2 Arbitrators respectively.
6. SC did cross check credentials on Appointment of J. Khehar and need not reiterate the whole process after J. Khehar name replaced J. Prasad.

Since CEPA being Law of Appointment, Power was vested with the Parties for 60 Days, in default of which it passed on to SC.

Tribunal analysis of parallel proceedings

1. ARTICLE 96(1) and (2) clearly define Investment Dispute, Disputing Investor and other relevant terms used in 96(6) clearly outlining its scope.
2. For upholding India’s Contention a disputing investor has to submit an Investment Dispute to another forum. However, Constitutional challenges are not tantamount to an Investment Dispute, despite emanating from the same factual matrix.
3. Overlapping of certain parameters between Writ Petition and CEPA not in any case means that one can supplant another.

Tribunals analysis of taxation regime

1. TN asserting its defence measure to halt activities resulting in Double Benefit to Nissan was unduly arbitrary on a misguided concept. TN was made aware of ABS at the outset and that it’s Payment of Incentives in the following period without timely objecting approves its implied consent to New ABS.
2. Merely because NMIPL and RIPL were performing functions in a certain capacity for Nissan, does not make it a wholly integrated entity.
3. ARTICLE 10 expressly excludes Taxation Measures but are modified to the extent States induct them in Treaty or Agreement.
4. Source of Right and Nature of Statute are to be observed to decide the applicability of the Taxation ARTICLE 10^[57] excludes nearly all rights and objections pertaining to Taxation.
5. However at the very outset, any financial refund or imposition of monetary value shall be interpreted as a “Tax” without even looking at the underlying Hence an element of Public Good with no direct advantage to the payer is to be present in Tax.^[58] All exclusions are based on satisfactory evidence presented to strengthen justification of Tax exclusion.
6. MOU Cell official functions regarding decision of entitlement or payment cannot be proved reasonably.
7. No sufficient information has been provided to decide on the fact that which Government Bodies involved and discharge of their official duties is within purview of Tax Measures.

Tribunal’s analysis of limitation applicability

1. It cannot be denied that ARTICLE 10 indeed poses a Limitation, knowledge of which can be Express or Implied. Going by what constitutes as “Investment Dispute” and “Alleged Breach”, focus on actual loss incurred is paramount and independent of knowledge of Breach itself.
2. It is evident that TN did assure of clearing all dues of which Nissan is entitled, it cannot be said that Limitation Period commences on such a date since no prudent person would predict that breach shall persist after satisfactory assurance was provided.
3. Thus NO Actual/ Constructive Knowledge of Nissan in such cases can be perceived in such a situation.^[59]

Analysis

Upon careful examination, this case somewhat joins the list of other cases like Cairn Energy and Deutsche Telekom. It is evident that both the sides fought tooth and nail bringing all possible contentions one hears to restrain or challenge Proceedings. However Nissan’s objective assessment of all allegations and Tribunal’s understanding of relevant facts to apply requisite solution is praiseworthy.

1. All required terms were clearly mentioned in CEPA itself, so no ambiguity or need of referring to external sources existed. Lifting of Corporate Veil and how to construct an Enterprise and its Associates as Single or Separate Entities are clearly provided within Indian Corporate Laws itself. Cue from same could be taken to consider the fact that mere outsourcing sales and marketing activities in return of some remuneration or incentive not makes such Business Units as integral part of the Organization. NMIPL and RIPL may perform numerous other functions for some other Enterprises if agreed to, so anyhow not a part of Nissan and Renault Consortium.
2. Government of Tamil Nadu did create well structured channels for verification and disbursement under SIPCOT and MOU Cell, in light of which India’s contention that final decision was of MOU Cell in order to being it somehow within purview of Taxation unnecessarily stretching the language of ARTICLE 10 seems inexplicable. It is again a reiterated interpretation under Indian Tax Law that definition of Tax specifically excludes certain levies. A mere perusal of basic functions performed by each Department would have cleared a small ambiguity on which an enormous Double Benefit issue was formulated.
3. List Procedure is a standard way of selecting Arbitrators and if India was uncomfortable with this mechanism, it shouldn’t have waited for formal initiation of Proceedings and raised its voice at the time of choosing Arbitrators who shall preside over the matter. A review of CEPA Provision ARTICLE 96 and reference to PCA Appointment Rules would have mentioned the Mechanism of Appointment and when to challenge such Appointment.
4. No Reasonable Person on Earth can be expected to foresee a recurring breach of obligations and that too when repeated assurances of clearing outstanding dues were given by Government of Tamil Nadu on Nissan’s demand for an answer for In all probability, Limitation could not be applied.
5. It is an old well settled Principle of Interpretation that a difference exists between being Similar and Identical. Overlapping in any way between Writs filed before Madras High Court and Tribunal Proceedings, ignoring the nuances crucial to decide upon the actual dispute to be adjudicated is impermissible.

Conclusion

India has constantly strived to upgrade its Laws in order to conform to International Standards by bridging Lacunas and introducing Emerging Concepts wherever possible. With the advent of Alternate Dispute Resolution Modes and success of Arbitration in particular, India has resorted to amending its Domestic Arbitration Act time and again in order to make it an attractive hub for International Arbitration.

No doubt India supports its Commitments made and provides for modes to enforce Foreign Arbitral Awards, its efficacy lies in the fact that exactly how the Award is executed, without any more hindrances.

Vodafone Case, another recent Award, with similar issues of retrospective payment was also awarded against India and is much welcomed for its insight, yet it sends a negative message across Global Commercial and Investment Domain to refrain investment in India.

Despite going for a speedy alternate redressal, practically Tribunal will take its own time to hear the parties and pronounce the Award. It is a known fact that the Tribunal has enlisted several disputes which are still pending before it despite being filed years ago. The reason highlighted by the Government of Tamil Nadu to suppress timely payment was that it didn’t have funds to pay and the Amended Business Scheme was to hamper State’s Economic Interests. Well a genuine Financial Emergency can be well understood if had been clearly told about the same, but raising this ground in a Court or Tribunal will never be acceptable and instead be a burden on the party claiming the same to adduce evidence to prove its financial inability to pay. Further, it will leave the other party disgruntled and generate negative reviews, severely impacting the prospects of attracting Business and Investment into India. In a nutshell, Nissan’s stand that prosperity of State was dependent on its willingness to invest says it all. No Person or Enterprise however humongous would like any untoward disruption in its Performance of Agreement, particularly if cause emanates from Other Party’s side.

References

^[1] Aceris Law LLC-International Arbitration Information: https://www.international-arbitration-attorney.com/what-is-international-arbitration/

^[2] The Hague Justice Portal—- http://www.haguejusticeportal.net/index.php?id=311

^[3] Permanent Court Of Arbitration – Peace Place Library : (August 8, 2020): https://www.peacepalacelibrary.nl/research-guides/settlement-of-international-disputes/permanent-court-of-arbitration-2/

^[4]Permanent Court Of Arbitration: (August 8, 2020): https://pca-cpa.org/en/about/

^[5] 1899 Hague Convention: Article 16

^[6] Dirk Pulkowski — Arbitration And Conciliation at The Permanent Court Of Arbitration: meeting of the states parties to UNCLOS 14 june 2017: https://www.un.org/depts/los/Article_287_Side_Event/PCA.pdf

^[7] Permanent Court Of Arbitration: (August 8, 2020): https://www.vredespaleis.nl/jurisdiction/permanent-court-of-arbitration/?lang=en

^[8] Supra

^[9]  1899 Hague Convention: ARTICLE 20

^[10] 1899 Hague Convention: ARTICLE 21

^[11] 1899 Hague Convention: ARTICLE21

^[12] 1907 Hague Convention: CHAPTER IV

^[13] 1899 Hague Convention: ARTICLE24

^[14] Supra

^[15] Rules of Procedure for Arbitrating Disputes Relating to Natural Resources and/or the Environment

^[16] Supra

^[17] Energy Charter Treaty

^[18] The Hague Rules On Business And Human Rights Arbitration

^[19] I.B.A Rules For Investor Mediation

^[20] Prime Finance Arbitration Rules 2016.

^[21] Mauritian Arbitration Rules

^[22] Supra: Documents and Resources

^[23] https://www.italaw.com/sites/default/files/case-documents/italaw10875.pdf.

^[24] ARTICLE 32: UNCITRAL 2013.

^[25] CEPA

^[26] UNCITRAL: 2013

^[27] 2011

^[28] CEPA

^[29] ARTICLE 96(6): Investment  Dispute

^[30] ARTICLE 31(1) VCLT

^[31] Khan v Mongolia: PCA Case No. 2011-09: Triple Test supported by Nissan: https://investmentpolicy.unctad.org/investment-dispute-settlement/cases/411/khan-resources-v-mongolia

^[32] I.C.J. Reports 1964: Belgium v Spain: https://www.refworld.org/cases,ICJ,402391b04.html

^[33] CEPA: 2011

^[34] Ibid

^[35] Supra

^[36] 2008

^[37] ICSID Case No. ARB/09/15

^[38] PCA Case No. 2007-02/AA277

^[39] ICSID Case No. ARB/12/4

^[40] 1956.

^[41] 2006

^[42] SECTION 30(1)(a) and 33(3)

^[43] ICSID Case No. ARB(AF)/99/1: Article 2103(1): NAFTA: National American Free Trade Agreement inapplicable

^[44] LCIA Case No. UN3467: Ecuador – United States of America BIT (1993)

^[45] LCIA Case No. UN3481: Ecuador-Canada BIT(1996)

^[46] Ibid

^[47]

^[48] OEPC: Murphy

^[49] ICSID Case No. UNCT/13/2

^[50] CEPA

^[51] ICSID Case No. UNCT/02/1

^[52] CSID Case No. UNCT/13/2

^[53] ARTICLE 23(1).

^[54] ARTICLE 96(21)

^[55] ARTICLE 96(5).

^[56] ARTICLE 96(11) CEPA

^[57] CEPA: 2011

^[58] Murphy

^[59] Ibid

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