Právny obzor


Ročník 107



T E O R E T I C K Ý  Č A S O P I S  P R E  O T Á Z K Y  Š T Á T U  A  P R Á V A

The Use and Misuse of the Customary International Law Doctrine of Necessity in International Investment Arbitration

Doc. JUDr. Katarína Chovancová, PhD., LL.M., MCIArb, Institute of International and European Law at the Faculty of Law of the Pan European University in Bratislava, Institute of State and Law of Slovak Academy of Sciences

Právny obzor, 102, 2019, special issue, pp. 55-71.

Published online: 15.1.2020

Abstract. Within the realm of international law, there are two types of the state of necessity doctrine in customary international law (CIL) and treaty-based regimes, including the regime subordinated to international investment law. The concept of necessity defence, based on the CIL is embedded in Article 25 of the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts as one of several circumstances, which guarantee preclusion of the wrongfulness of the state’s conduct in international law. The CIL necessity defence as a secondary rule of state responsibility may be invoked only after the breach of any international obligation (except for the peremptory norm of international law) was established according to primary rules of the particular regime of one of many areas of international law. The threshold for passing the Article 25 necessity test is extremely high and resulted in its rare use in practice, yet the host state’s success with invoking the bilateral investment treaty (BIT) necessity defence may be achieved easier, but also depends on the wording of the non-precluded measure (NPM) clause in the BIT. The NPM clause serves as an additional layer of protection for BIT parties and should be formally and substantially distinguished from the CIL necessity. Actually, the nature of NPM provisions in BITs has been recently conflated with the CIL necessity in five famous international investment arbitrations against Argentina, when the nexus requirement in Article XI. of the US - Argentina BIT was mixed up with that of the CIL necessity doctrine. The thesis of this article is that as a part of lex specialis, the treaty based necessity defence in international investment law, included in the BIT’s NPM provision under no account can be perceived as having some inferior status to the CIL necessity unless the BIT parties explicitly agreed on such NPM clause’s status in the BIT.

Keywords: customary international law, necessity defence, bilateral investment treaties, international investment law, responsibility of states, non-precluded measures, investment arbitrations


ISSN 2729-9228

ISSN 0032-6984


Právny obzor is peer-reviewed journal and is indexed in SCOPUS and HeinOnline database (INDEX TO FOREIGN LEGAL PERIODICALS).


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