مجله حقوقی بین المللی
پیاپی 67 (پاییز 1401)

This article aims to discover the standard of compensation for damages caused to foreign investors due to the non-expropriatory violations of bilateral or multilateral International Investment Agreements (IIA). A review of the investment arbitration practice as an important source of Foreign Investment Law, reveals that the amount of compensation in these cases is determined according to the standard put forward by the PCIJ in Chorzów Factory case as well as the relevant standards of the ILC Articles on Responsibility of States for Internationally Wrongful Acts. In cases where the violation of the IIA has amounted to expropriation, the payable compensation to the aggrieved investor would be determined in the same manner as an unlawful expropriation. In other cases, however, the assessment of compensation lies in the existence of a causal link between the wrongful act of the Host State and the damages caused to the investor. Despite the relative coherence of the arbitral tribunals’ rulings regarding the compensation standard in non-expropriatory violations in similar cases, this article concludes that the method by which the causal link is examined by arbitral tribunals remains utterly inconsistent, which can undermine the coherence and predictability of the international investment arbitration system.

Although Investment Treaties are considered as an effective tool to protect foreign investors, they can also limit the host state’s regulatory powers. That is why states, may refrain from pursuing their legitimate public policies, especially in the interests of security environment public order, public morality and public health by anticipating the possibility of initiation of arbitration proceedings brought by investors before arbitral tribunals,  Based on this background, states seek to protect their essential interests by incorporating Exception Clauses in modern Investment Treaties. The main aim of this article is to examine the characterization of the legal nature of Exception Clauses, as a limiting factor in the scope of the substantive obligations of BITs and the relevant effects of such a description in Investment Arbitration. In this regard, the authors initially try to study the general framework of such Clauses by anylizing the rules of Treaties Interpretation, Judicial Procedure and International Arbitration. Then they will demonstrate that Exception Clauses are characterized as a treaty-internal limitation on the scope of substantive obligations despite the disagreement about the nature of them. Such a characterization of its legal nature will raise important effects in arbitration proceeding.

A number of different elements can affect the calculation of compensation arising out of the breach of Investment Treaty standards. A series of these elements addresses conditions and circumstances of the Host State. This article examines the economic crisis of the government, level of economic and political development of the investor Host State, and obligations other than those of Investment Treaties, as well as the influence of these factors on the calculation of damages quantum phase of Investment Claims.
If the government’s economic crisis prompts the Host State to take certain measures breaching Investment Treaties' obligations, necessity defense could be raised as one of the circumstances precluding wrongfulness of the act of the State. Many Investment Treaties include provisions on non-precluded measures, which raise a debate as to the interaction of these measures and the circumstances precluding wrongfulness in Customary International Law. Investment Arbitration Tribunals have not yet reached a clear solution to reconcile these different sets of provisions.
Furthermore, attention has been paid to the effect of various factors such as general economic situation of the Host State as well as non-Investment Treaty obligations of the Host State on the calculation of compensation in recent years. It seems that in the future perspective of the subject matter of this article, some developments may come through due to possible future cases.

One of the most important issues that concerns foreign investors when investing in a foreign country is the protection of Intellectual Property Rights. Protecting Intellectual Property Rights through the potential capacities of the foreign Investment Law system is a new issue that industrialized countries' policy-makers have proposed in practice in recent decades, and subsequently the researchers have studied it academically. Investment Law sources do not generally contain detailed regulations about Intellectual Property Rights and support them merely by accepting Intellectual Property Rights as one of the forms of assets. This matter binds the host country to comply with all Treatment Standards concerning intellectual assets of foreign investors. At the same time, due to the type of Intellectual Property, many legal challenges are raised about the way of generalizing Treatment Standards to Intellectual Property Rights. More over, there is no consensus between developed and developing countries about the way of treating foreign investors and the principles and regulations governing this issue. Accordingly, the efforts to adjust a set of regulations on International Investment and the principles of appropriate treatment with foreign investors have not been successful. The lack of a clear legal framework in this era is quite evident. This article criticizes the potential of International Investment Law standards in protecting Intellectual Property Rights, examining the legal obstacles in this regard.

The environment is the silent victim of war, which, its destruction, brings a flood of catastrophes to human beings and human societies. Developments in science have made this issue even more apparent, and hence the question of protection of the environment in relation to Armed Conflicts has repeatedly been at the forefront of the concerns of environmentalists as well as International Humanitarian Law scholars. In this respect, in 2019 the UN International Law Commission, with the approach of codifying and progressively developing International Law, published the first reading of its draft principles on protection of the environment in relation to Armed Conflicts. Moreover, in 2020 the International Committee of the Red Cross has updated its 1994 guidelines to take a fresh look at the rules of International Law, and in particular Humanitarian Law in this area. The present article, has focused on the outcomes of these two important projects with a comparative approach and seeks to answer the question of the extent to which new researches conducted by the ILC and the ICRC have been able to achieve their goals of creating a more effective legal protection system for the environment in times of Armed Conflicts. The findings of the article show that the innovations contained in the above-mentioned documents can normatively provide more protection for environment in Armed Conflicts.

Today, terrorism has taken various forms, and one of its types that endangers peace and security in the seas is “Maritime Terrorism”. Although the adoption of the 1982 UN Convention on the Law of the Sea has strengthened the maintenance of international peace and security in the seas, this Convention includes no particular rules on prevention and suppression of Maritime Terrorism. The occurrence of the Achille Lauro incident in 1985 showed the existing legal loopholes in confronting security threats caused by terrorist activities in the seas. To address these gaps, the International Maritime Organization (IMO) adopted the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its 2005 protocol. In this context, and with descriptive – analytical method, the purpose of this paper is to review and analyze the content of these documents and their capabilities in the framework of effective combat against Maritime Terrorism. This paper concludes that for an effective combat against Maritime Terrorism, these conventions must be reviewed and strengthened through adopting preventive measures, effective prosecuting and punishing the perpetrators, and resolving possible conflicts with the rules of the International Law of the Sea.

Ethnic conflicts (ECs) are considered to be one of the current serious dangers for internal stability and safety as well as regional and international peace and security. Minority is a collective construction and the "group" plays a pivotal role in formation of minority groups' collective identity and the possibility of the outbreak of ECs. It appears that the Liberal International Law, due to proceeding neutrality policy and, as a consequence, paving the way for indirect discrimination against minorities from one side and radical insistence on individualism and individual demands and neglecting collective and group identity and rights on the other side, has disregarded the "group" that plays a substantial role in the outbreak and intensification of ECs. Consequently, this has led to its failure in preventing the tensions between the majority and minority or between different minority groups.

Law of Evidence plays a significant role in advancing the implementation of justice in International Proceedings. In international claims, the states collect and present the evidence as the litigants. It is conceivable that one of the parties violates International Law and the other party's rights to obtain evidence through illegal methods. In this regard, the admissibility of illegally obtained evidence has become a controversial issue in jurisprudence and International Law doctrines. This issue has been discussed recently with the diplomatic cables leak through the WikiLeaks website. In some international proceedings, the litigants have tried to use the cables as evidence to prove a fact before international and domestic courts. The present article aims to answer this question: what is the status of the admissibility of disclosed diplomatic cables in the procedure of international judicial proceedings? This article shows that despite the importance of finding the evidence in substantiation of claims, in international judicial proceedings, the international courts and tribunals are reluctant to accept them on their own initiative until the litigants raise objections to that evidence.
 In this study, first of all, the theoretical foundations of the admissibility of illegally obtained evidence in International Law have been explained. Then the international practices regarding the admissibility of disclosed diplomatic cables have been illuminated.