Short Flight of the Phoenix: A Few Thoughts on Good Faith, Abuse of Rights and Legality in Investment Arbitration
pages 183 - 207
ABSTRACT:

As a point of departure for this contribution the general and intertwined principles of legality, the abuse of rights and good faith are examined, which have emerged repeatedly in the last few years throughout the case law of the International Centre for the Settlement of Investment Disputes. The present article provides an analysis of the concept and application of these principles, which have entered into the investment protection domain mainly through public international law and which, as such, form a part of international public policy. The article examines the underlying concept of the principle of good faith in detail as it stems from public international law. The main focus is on ICSID case law where these principles were applied, with special attention given to the first Czech ICSID case, the Phoenix Action, which at the time of its initiation began the discussion on the extent of the jurisdiction concept under ICSID. The problematic aspects of the conclusion of this tribunal are discussed and solutions are suggested for future disputes of a similar nature.

keywords
Abaclat
abuse of rights
admissibility abjection
BIT
principle of good faith
material good faith
investment
investment arbitration
investment protection
International public policy
legality
ICSID
Phoenix Action
Public international Law
Treaty claims
Washington Convention
about the authors

JUDr. Filip Černý (*1982) works as a legal trainee in the Law Office of Bělohlávek, Prague, Czech Republic and pursues his PhD studies in international law at the Law Faculty of Charles University in Prague, where he also obtained his Juris Utrisque Doctor degree in 2010. Graduated from the Law Faculty of Masaryk University (Brno) in 2007, absolved exchange programme at the Law Faculty of Erasmus University in Rotterdam in 2006. Field of Interest: arbitration and public international law, with a specific focus on the investment arbitration.

e-mail: filip.cerny@ablegal.cz