The Application of Investment Treaties in Occupied or Annexed Territories and âFrozenâ Conflicts: Tabula Rasa or Occupata?

Kit De Vriese

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Chapter 10 The Application of Investment Treaties in Occupied or Annexed Territories and âFrozenâ Conflicts: Tabula Rasa or Occupata?

In: Investments in Conflict Zones

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Kit De Vriese

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Type:: Chapter

Pages:: 319â358

DOI:: https://doi.org/10.1163/9789004442832_012

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Abstract

This chapter addresses the question whether and how an occupying or annexing state can be held accountable for its acts and omissions regarding investments and property in claimed territory. While article 43 Hague Regulations argues in favour of continuity of the occupied stateâs law for occupation, its relevance for investment law is limited. This chapter sets out two principles, which are each otherâs antipode. Inter-state violations, the object and purpose of the treaty, acquired rights and the need to avoid a (quasi-) legal vacuum argue for the extraterritorial application of the occupantâs treaties. Exceptions can be found in temporary occupations (including territorial administration), and when occupied states are willing to guarantee investment protection. For annexation, this extraterritoriality principle is reversed due to the problems created by the jus cogens prohibition of aggression. Yet, if its wording permits it, an effective interpretation of the annexing-annexed state iia parallel to the one in the icjâs Namibia Advisory Opinion could also lead to protection in favour of investors. The Crimea tribunals and subsequently the Swiss Federal Tribunal have reached this conclusion, although on a slightly different basis than what will be set out in this chapter. Its normative framework could then be used as a guide for arbitrators dealing with current and future situations of occupation and annexation.

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Investments in Conflict Zones

The Role of International Investment Law in Armed Conflicts, Disputed Territories, and âFrozenâ Conflicts

Series:Â Nijhoff International Investment Law Series, Volume: 15

E-Book ISBN:: 9789004442832

Publisher:: Brill | Nijhoff

Print Publication Date:: 08 Dec 2020

Subjects
- International Law
  - International Law: General Interest
  - International Dispute Resolution & Arbitration

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Chapter 10 The Application of Investment Treaties in Occupied or Annexed Territories and âFrozenâ Conflicts: Tabula Rasa or Occupata?

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Investments in Conflict Zones

The Role of International Investment Law in Armed Conflicts, Disputed Territories, and âFrozenâ Conflicts

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Chapter 10 The Application of Investment Treaties in Occupied or Annexed Territories and âFrozenâ Conflicts: Tabula Rasa or Occupata?

The Role of International Investment Law in Armed Conflicts, Disputed Territories, and âFrozenâ Conflicts