Foreign Investor Misconduct in International Investment Law by Anna Kozyakova

Author:Anna Kozyakova
Language: eng
Format: epub
ISBN: 9783030548551
Publisher: Springer International Publishing

4.2.4.2.4 The Range of Negative Legal Consequences of Abuse

The respondent’s assertion that an abusive change of nationality has occurred faces a correspondingly high burden of proof.250 This is in line with the early position of the PCIJ that “an abuse cannot be presumed by the Court”.251 Even so, any abuse of the system of international investment law established by a tribunal is outcome-determinative and results in the imposition of negative legal consequences. Abuse, as a matter of established practice, imposes the allocation of costs on the party which committed the misconduct (on the claimant). As a primary consequence, Phoenix and Mobil both accorded the established abuse a negative legal consequence in the form of the elimination of the tribunal’s jurisdiction. However, such an approach has not been unanimously embraced within the field. Some tribunals have deemed that an abuse is a “ground for disqualifying”252 the proceedings and in so doing point to the admissibility of the claims rather than to the tribunal’s jurisdiction. As the Chevron tribunal noted in 2008, “there does not appear to be complete agreement between the Parties’ submissions nor among other authorities in this context on whether [abuse of process] should, as a general rule, be considered issues of jurisdiction, admissibility, or the merits”.253 Thus, uncertainty as to the exact nature of the legal consequences associated with an abuse of process is another element which shall be analysed under the rubric ‘subsequent development’ in case law.

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