History & Modern Evolution of Transnational Commercial Law

Document-Id: 100101, Please cite as: "https://www.trans-lex.org/100101"

Title

Charles T. Kotuby Jr. / Luke A. Sobota, GENERAL PRINCIPLES OF LAW AND INTERNATIONAL DUE PROCESS - Principles and Norms Applicable in Transnational Disputes, New York NY USA 2017

Table of Contents

CHAPTER 2: MODERN APPLICATIONS OF THE GENERAL PRINCIPLES OF LAW A. Good Faith in Contractual Relations 1. Pacta Sunt Servanda: Agreements Must Be Honored 2. Good Faith in Excusing Contractual Performance B. Abuse of Rights and the Principle of Proportionality C. Estoppel D. The Prohibition on Advantageous Wrongs and Unjust Enrichment E. Corporate Separateness and Limited Liability F. The Principles of Causation and Reparation CHAPTER 3: MODERN APPLICATIONS OF THE PRINCIPLES C. Procedural Equality and the Right to Be Heard E. Evidence and Burdens of Proof F. The Principle of Res Iudicata

Content

CHAPTER 2: MODERN APPLICATIONS OF THE GENERAL PRINCIPLES OF LAW

A. Good Faith in Contractual Relations

Good faith is "the fundamental principle of every legal system."4 Binding individuals, juridical persons, and sovereigns alike, it essentially "converts a moral or ethical precept" into a legal principle—an obligation to act with fairness, reasonableness, and decency in the formation and performance of a contract.5 It further requires fair dealing in the exercise of rights and prohibits parties from beneﬁting from their own illegitimate actions. Parties would not enter into contractual relations if there were not a mutual expectation that promises would be honored, that obligations would be performed, and that compensation would be provided in the event of breach. An integral facet of legal certainty, good faith is viewed as "the fundamental principle of the entire system"6—the "Magna Carta of international commercial law."7

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1. Pacta Sunt Servanda: Agreements Must Be Honored

A contract would not be a contract if not binding. The principle pacta sunt servanda is, in H.L.A. Hart's phrase, "the minimum content of Natural Law."8 In 1969, the principle was codiﬁed for States in the Vienna Convention on the Law of Treaties,9 which has been widely accepted as setting forth rules of customary international law.10 With roots in both Western and Eastern legal systems, this principle has become a ﬁxture in the international legal order preasely because "no international jurisdiction whatsoever has ever had the least doubt as to [its] existence."11 "All civilizations, from the earliest, have recognized the rule, and it has been handed down throughout the centuries...

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Pacta sunt servanda also means that obligations should be carried out according to the good faith and mutual intention of the parties—that is to say, in Cheng's words, "carrying out the substance of [the parties'] mutual understanding honestly and loyally."21 Contractual performance is dictated by contractual interpretation, and the dual inquiries into what a contract requires and how it must be fulﬁlled often collapse into one. The principle of good faith stands with, and informs the application of, other canons of contract construction".22 It becomes the "major interpretative principle that is applied ancillary to [the] principle of obligation" of pacta sunt servanda.23 In this sense, the principle of good faith is as applicable to the judge or arbitrator charged with interpreting a contract as it is to the parties that executed it.

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The most elementary interpretive canon emanating from this general principle is that the common intention of the parties at the time of contracting should dictate the obligations of a contract. Because contracts are borne of consent of both sides, the test appropriately focuses on those points of mutual agreement.

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An offshoot of this principle is to interpret an agreement as a whole to achieve its purpose and aim, which ensures that individual words or phrases within the agreement are given meaning, force, and effect (known as the principle of effectiveness).61

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Another interpretive principle recognized by Cheng was that of contra proferentem in the interpretation of agreements, which precludes the party who proposed a provision from not honoring it on the ground that it is ambiguous6767 and which interprets ambiguous phrases against their author.68 This, too, derives from the general principle of good faith.69

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The principle of good faith has also been applied to affirm the existence of a contract—whether through the parties' contemporaneous conduct or their past
course of dealings.73

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2. Good Faith in Excusing Contractual Performance

The general principle of good faith has also guided courts and tribunals on when to excuse adherence to a contract. For instance, under most legal systems, one party may be entitled to treat itself as discharged from its obligations if the other has committed a substantial breach—exceptio inadimplenti contractus.82

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B. Abuse of Rights and the Principle of Proportionality

The negative corollary of the good faith exercise of a legal entitlement is the universal prohibition on abuse of rights. This principle relates not to how rights are obtained (viz., by law or contract), but to how they are exercised.113

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C. Estoppel

There is broad consensus that, as a "general principle, no party may rely upon its own inconsistency to the detriment of another."188 This principle has been
traced back through 12 centuries of Islamic jurisprudence and has deep roots in Roman law, common law, and modern civil law.189 Its "mandatory implication" occurs where a party "tries to undo what he previously undertook";

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D. The Prohibition on Advantageous Wrongs and Unjust Enrichment

Nemini dolos suus prodesse debet and nemo auditur propriam turpitudinem allegans: these central tenets mean, inter alia, that a party cannot build a case upon a fraud, cannot cause the nonperformance of a condition precedent to its own obligation, and cannot invoke its own malfeasance to diminish its liability. Although expressed in myriad ways, it is basic that "[n]o one can be allowed to take advantage of his own wrong."247

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E. Corporate Separateness and Limited Liability

Corporate personhood is recognized to allow asset partitioning among related entities.304 In all legal systems, corporate entities have "rights and obligations
peculiar to themselves," separate and apart from their constituent owners.305 This concept of "limited liability" allows owners to separate corporate assets and liabilities from their own.306 For both private and public corporations, "[l]imited liability is the rule, not the exception."307 Given its widespread acceptance, separation of legal identity between different companies, and between a company and its shareholders, is a general principle of law.308

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F. The Principles of Causation and Reparation

It is impossible to speak of liability without causation. An elusive concept, causation nevertheless encompasses an inviolable requirement to hold a party liable: a connection between its alleged act and the damage claimed. As Cheng observed, "[i]n jure causa proxima non remota inspicitur"324 —the proximate, and not the remote, cause is to be considered, and only those losses so occasioned are to be compensated. The requirement that persons are obliged to redress the damage they cause is a general principle of law recognized by all civilized nations.325

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CHAPTER 3: MODERN APPLICATIONS OF THE PRINCIPLES

C. Procedural Equality and the Right to Be Heard

A related concept to judicial impartiality is juridical equality between the parties in their capacity as litigants—audiatur et altera pars. These are, as Cheng said, the "two cardinal characteristics of a judicial process."111 "At the heart of due process is the idea that adjudication cannot be considered legitimate if it does not prevent arbitrariness from the standpoint of the parties."112

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As noted in the discussion of the prohibition on advantageous wrongs in chapter 2.D,159 the tribunals in World Duty Free v. Kenya, Inceysa v. El Salvador, Plama v. Bulgaria, and Metal-Tech v. Uzbekistan arrived at similar conclusions,“160 aﬂirming that fraud, bribery, and oﬂicial corruption are contrary to “international bones mores“161 and “the international public policy of most, if not all, States.”162 International law thus denies protection to an investment procured by bribery163 or by the submission of doctored ﬁnancial statements.164 According to Emmanuel Gaillard, “[t]here is now little doubt that . . . a transnational rule has been established according to which an agreement reached by means of corruption of one of the signatories...is void.“165

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E. Evidence and Burdens of Proof

Allegations not admitted, noticed, or presumed must be proven. The traditional formulation of the principle governing the burden of persuasion is actori incumbit onus probandi.205 This rule is universal save where, as noted, the burden is removed by the provisions of a statute or other evidentiary presumption."206

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But sometimes the best evidence may not be all that good. Where direct evidence is unavailable, “it is a general principle of law that proof may be administered by means of circumstantial evidence.”228 Appropriate inferences may be drawn from; “a series of facts linked together and leading logically to a single conclusion.229

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F. The Principle of Res Iudicata

The ﬁnal principle is, according to Cheng and early twentieth century jurists, the least controversial: “There seems little, if indeed any question as to res judicata being a general principle of law.”241 It serves both a general and speciﬁc pur-pose. Generally, “the stability of legal relations requires that litigation come to an end”; speciﬁcally, “it is in the interest of [all] part[ies] that an issue which has already been adjudicated...be not argued again.”242

4Id. at 105. Good faith has been expressly recognized as a general principle in civil codes around the world. See, e.g.. Argentinean Civil Code of 1869 art. 1198 (contracts); Chilean Civil Code art. 1546; Brazilian Civil Code of 2002 art. 113; French Civil Code art. 1134; German Civil Code art. 242; Italian Civil Code art. 1337 (contracts); Mexican Federal Civil Code art. 1796; Swiss Civil Code art. 2.1.
5See, e.g., COMMENTARY ON THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS (PICC) 171 (Stefan Vogenauer 8: Ian Kleinheisterkamp eds., 2009).
6Lord Mustill, The New Lex Mercatoria: The First Twenty-Five Years, 4(2) ARB. INT’L 86, 111 (1988). See infra note 16.
7KP. BERGER, THE CREEPING CODIFICATION OF THE LEX MERCATORIA 165 (Kluwer Law International 1999): see also Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (“Every State has the duty to fulﬁl in good faith its obligations under international agreements valid under the generally recognized principles and rules of international law.”); RESTATEMBNT (THIRD) FOREIGN RELATIONS LAW OF THE UNITED STATES § 321 cmt. (a) (Am. Law Inst. 1987) (stating that the rule of pacta sunt servanda "lies at the core of the law of international agreements and is perhaps the most important principle of international law”); MICHAEL JOACHIM BONELL, AN INTERNATIONAL RESTATEMENT OF CONTRACT LAW: THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS 127 et seq. (3d ed. 2004); T.O. ELIAS, NEW HORIZONS IN INTERNATIONAL LAW (1979).
8H.L.A. HART, THE CONCEPT OF LAW 193 (Oxford 2d ed. 1994).
9Vienna Convention on the Law of Treaties art. 26. opened for signature May 23, 1969, 1195 U.N.T.S. 3:1 (entered into force Ian. 27, 1980 (“Every treaty in force is binding upon the parties to it and must be performed by them in good faith”).
10See e.g., Arbitration regarding the Iron Rhine Railway (Belg. v. Neth.), PCA, Award, 23 (May 24, 2005), Dispute regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment, 2009 I.C.J. 213,§ 47 (July 13); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon. v. Malay), Judgment, 2002 I.C.I. 625, ¶¶ 37-38 (Dec. 17) ; KasikiIi/Sedudu Island (Bots. v. Namib), Judgment, 1999 I.C.J. 1045, ¶ 18 (Dec. 13) (II);Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, 1994 I.C.J. 6, ¶ 41 (Feb. 3); Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, 1980 I.C.J. 73, ¶¶ 41—43 (Dec. 20) (good faith); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 99 (July 8) (good faith).
11Texaco Overseas Petroleum Co. (TOPCO) v. Gov’t of the Libyan Arab Republic, Award (Jan. 19, 1974), 53 INT’L L. REP. 389, 462 (1979); see also Inceysa Vallisoletana S.L. v. Republic of El Salvador, ICSID Case No. ARB/O3/26, Award, ¶¶ 223-33 (Aug. 2, 2006) (“[T]he maxim Pacta Sunt Servanda [is] unanimously accepted in legal systems”); Texaco Overseas Petroleum Co. v. Gov't of the Libyan Arab Republic (TOPCO), 17 I.L.M. 1, 18—19 (1978) (“A contract must be performed in accordance with its contents and in compliance with the requirements of good faith”; “Surah 5 of the Koran...begins with the verse ‘0 ye believers, perform your contracts!’ ”); Pacta Sunt Servanda, in 7 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 364 (Rudolf Bernhardt ed., 1984).
21CHENG, supra note 2, at 114-15.
22See, e.g., W. LAURENCE CRAIG, WILLIAM W. PARK & JAN PAULSSON, INTERNATIONAL CHAMBER OF COMMERCE ARBITRATION § 35.02 (Oceana TM 3d ed. 2000) (citing sources); Mustill, supra note 6, at 110 (“A contract should be performed in good faith”); UN. Convention on Contracts for the International Sale of Goods arts. 7(1), 9; UNIDROIT Principles of International Commercial Contracts arts. 1.7 & 1.9 (2010); Ambiente Uﬁcio S.P.A. et al. v. Argentine Republic, ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility, Dissenting Opinion of Santiago Torres Bernardez, ¶ 245 (May, 2013), citing Report of the United Nations Conference of the Law of Treaties, First and second sessions, Vienna, March 26—May 24, 1968 and April 9—May 22, 1969, Documents of the Conference UN publication, Sales No. E.70.V.5 at 38, ¶ 5 (“international courts and tribunals are expected to bear constantly in mind, as noted by the International Law Commission, that 'the interpretation of treaties in good faith and according to the law is essential if the pacta sunt servanda rule is to have any real meaning'").
23Int'l Thunderbird Gaming Corp. v. United Mexican States, UNCITRAL, Separate Opinion of Thomas Wälde, § 25 (Dec. 1, 2005); see also Nuclear Tests (Aust. v. Fr.), Judgment, 1974 I.C.J. 253, 267 (Dec. 20) ("the very rule of pacta sunt servanda in the law of treaties is based on good faith ); ICC Award No. 5953, 117 J. DROIT INT’L (CLUNBT) 1056, 1060 (1990); see also ICC Case No. 3131, Award (1979), REV. ARB. 525, 531 (1983); 9 Y.B. COMM. ARB. 109 (1984); Norsolor SA (Fr.) v. Pabalk Ticaret Sirketi SA (Turk), T.G.I. Paris (Mar. 4, 1981), REV. ARB. 379, 465 (1983).
61GARDINER, supra note 27, at 148, 200—01 (citing Territorial Dispute (Libyan Arab Iamahiriya/Chad),Judgment, 1994 I.C.J. 6 (Feb. 3)).
67See, e.g., First Travel Corp. v. Islamic Republic of Iran, Case No. 34 (206-34-1), Award (Dec. 3, 1985), 12 Y.B. COMM. ARB. 257 (1987 (deciding that in face of ambiguity, it would apply the rule of contra proferentem and interpret the agreement against the drafter’s interest so as to protect the party who did not draft the agreement).
68See, e.g., Telestat Canada v. Juch-Tech, Inc., Superior Court of Justice of Ontario (OSCI), Case No. 11-29505, ¶¶ 57—65 (May 3, 2012); ICC Award No. 7110, 10(2) ICC BULL. 39, at 44 (1999) (determining that “it is a general principle of interpretation widely accepted by national legal systems and by the practice of international arbitral tribunals, including ICC arbitral tribunals, that in case of doubt or ambiguity, contractual provisions, terms or clauses should be interpreted against the drafting party”); Cysteine Case, China CIETAC Arbitration Proceeding, Award (Jan. 7, 2000); ICC Award No. 3460, J. DROIT INT'L (CLUNET) 939 (1981); UNIDROIT Principles of International Commercial Contracts art. 4.6 (2010); UNIDROIT at 528.
69See UNIDROIT Principles of International Commercial Contracts art. 4.6 (2010). See also COMMENTARY ON THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS (PICC) 527 (Stefan Vogenauer & Jan Kleinheisterkamp eds., 2009) (stating that today the principle of contra proferentem is “part of the modern lex mercatoria” because the rule is recognized in many major legal systems and applicable to the interpretation of international conventions).
73See, e.g., DIC of Delaware, Inc. v. Tehran Redev. Corp, 8 Iran-U.S.Cl. Trib. Rep. 144, 161 (1985) (part performance of an oral contract as evidence of its existence “must be taken to constitute a general principle of law”); accord Futura Trading, Inc. v. Nat’l Iranian Oil Co., 13 Iran-U.S. Cl. Trib. Rep. 99, 113 (1986); Kimberly—Clark Corp. v. Bank Markazi Iran, 2 Iran-U.S. Cl. Trib. Rep. 334, 339 (1983); Iowa State Univ. v. Ministry of Culture, 13 Iran-U.S. Cl. Trib. Rep. 271, 273—75 (1986); Cal-Maine Foods, Inc. v. Islamic Republic of Iran, 6 Iran-U.S. Cl. Trib. Rep. 52, 61—62 (1984); Chas. T. Main Int’l, Inc. v. Khuzestan Water & Power Auth., 3 Iran-U.S. Cl. Trib. Rep. 156, 162 (1983); R.N. Pomeroy v. Islamic Republic of lran, 2 Iran-U.S. Cl. Trib. Rep. 372, 380 (1983); Pepsico, Inc. v. Islamic Republic of Iran, 13 Iran-U.S. Cl. Trib. Rep. 3, 33 (1986); United States v. Islamic Republic of Iran (Case 1329), 6 Iran—U.S. Cl. Trib. Rep. 12, 17 (1984).
82See, e.g., United Nations Convention on Contracts for the International Sale of Goods arts. 49(1)(a) and 64(1)(a) (“The buyer/seller may declare the contract avoided if the failure by the seller/buyer to perform any of his obligations under the contract or this Convention amounts to a fundamental breach of contract”); ICC Case No. 3540, Award (Oct. 3, 1980), 7 Y.B. COMM. ARB. 124 (1982); ICC Case No. 2583, Award, 103 J. DROIT INT'L (CLUNET) 950 (1976); Sapphire Int’l Petroleums Ltd. v. Nat’l Iranian Oil Co., Award, 35 INT‘L L. Rep. 136 (Mar. 15, 1963); Diversion of Water from the Meuse (Neth. v. Beng, Judgment, 1937 P.C.IJ. (See. A/B) No. 70 (June 28, 1937) (dissenting opinion of Judge Anzilotti). See generally Philip O’Neill et al., Is the Exception on Adimpleti Contractus Part of the New Lex Mercatoria?, in TRANSNATIONAL RULES IN INTERNATIONAL COMMERCIAL ARBITRATION 147 (Emmanuel Galliard ed., 1993).
113See GARDINER, supra note 27, at 148.
188CRAIG, ET AL., supra note 22, § 35.02(xvii) (citing Emmanuel Gaillard, 1985 REV. ARB. 241, 248; Paul Bowden, L’interdiction de se contredire au detriment d’autrui (estoppel) as a Substantive Transnational Rule in International Commercial Arbitration, in TRANSNATIONAL RULES IN INTERNATIONAL COMMERCIAL ARBITRATION 125 (Emmanuel Gaillard ed., 1991)).
189See Desert Line Projects LLC v. Republic of Yemen, ICSID Case No. ARB/05/17, Award, ¶ 207 (Feb. 6, 2008); Case concerning the Temple of Preah Vihear (Cambodia v. Thai), Merits, Judgment, 1962 I.C.J. 6.
247CHENG, supra note 2, at 149 (quoting The Montijo Case (1875)); see also EDWIN M. BORCHARD, THE DIPLOMATIC PROTECTION OF CITIZENS ABROAD OR THE LAW OF INTERNATIONAL CLAIMS 713 (Bankslaw 1915) ("It is an established maxim of all law, municipal and international, that no one can proﬁt by his own wrong").
304Barcelona Traction, Light & Power Co., Ltd. (Belg 11. Spain), Second Phase, Judgment, 1970 I.C.J. 3, ¶ 56 (Feb. 5) (ﬁnding a “wealth of practice already accumulated on the subject" of corporate personhood in municipal law); see also CLIVE M. SCHMITTHOFF’S SELECT ESSAYS 0N INTERNATIONAL TRADE LAW 137 (BRILL 1988) (noting “the universal application of the juridical concept of corporateness... [in] all national legal systems”); Henry Hansmann & Reinier Kraakman, The Essential Role of Organizational Law, 110 YALE L.J. 387, 426, 440 (2000).
305Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain), Second Phase, Judgment, 19701 I.C.J. 3, ¶ 39 (Feb. 5).
306Id. ¶¶ 40-41
307First Nat’l City Bank (FNCB) v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 626 (1983); see also Salomon Salomon v. Salomon & Co., [1897] A.C. 22 (H.L.) 30-31 (Eng.); Canada Business Corporations Act, R.S.C. 1985, c. C-44, § 15(1) (“A corporation has the capacity and, subject to this Act, the rights, powers and privileges of a natural person”), § 45(1) (“[t]he shareholders of a corporation are not, as shareholders, liable for any liability, act or default of the corporation”); Germany, Aktiengesetz [AktG] § 1 ¶ 1; GmbH-Gesetz [GmbHG] § 13 ¶ 2; Estonian Commercial Code §§ 135(2), 221(2); Ecuador Civil Code art. 568 (“The property of a corporation is not owned, in whole or in part, by any of the individuals who make up the corporation. Reciprocally, no one has the right to sue any of the individuals who make up a corporation, in whole or in part, to recover a debt owed by the corporation, nor does the debt give rise to an action against their personal assets, but instead the corporation’s assets....").
308See Lemire v. Ukraine, ICSID Case No. ARB/06/18, Dissenting Opinion of Arbitrator Dr. Jürgen Voss, ¶¶ 65-67 (Mar. 1, 2011) (noting that “[m]ost municipal legal systems recognize corporations as legal persons distinct from their shareholders,” such that it “pervades” those systems of law, and is thus “in principle recognized by international law”); Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections, Judgment, 2007 I.C.J. 582, ¶¶ 61—63, at 605 (May 24) (holding that, under international law, “[c]onferring independent corporate personality on a company implies granting it rights over its own property, rights which it alone is capable of protecting,” and looking to Congolese law for its treatment of companies); Rompetrol Grp. N.V. v. Romania, ICSID Case No. ARB/06/3, Decision on Respondent’s Preliminary Objections on Jurisdiction and Admissibility, ¶ 90 (Apr. 18, 2008) (citing Barcelona Tiaction for the proposition that “a corporate entity has a legal personality, and a set of rights and obligations, which are separate from those of its shareholders”); HICEE B.V. v. Slovak Republic, UNCITRAL, PCA Case No. 2009-11, Partial Award on Jurisdiction, ¶ 147 (May 23, 2011) (discussing “the default position in international law that the corporate form is...legally distinct”).
324CHENG, supra note 2, at 245.
325Id. at 241-53.
111CHENG. supra note 2, at 290.
112Sweet & della Cananea, supra note 29, at 943—44.
159The overlap here with other general principles is evident. For instance, in some European countries, such as Belgium and France, the “principle fraus ommnia corrumpit is perceived as a distinct corrective mechanism in relation to the general principle prohibiting the abuse of rights,” whereas in others, such as Germany and the Netherlands, "the principle fraus omnia corrumpit is considered a speciﬁc application of the principle of good faith in its limitative function.” Lenaerts, supra note 153, at 472, 473.
160Metal-Tech Ltd. v. Republic of Uzbekistan, ICSID Case No. ARB/10/3, Award, ¶¶ 327, 373 (Oct. 4, 2014) (dismissing BIT claim for lack of jurisdiction where investment was tainted by corruption).
161Wena Hotels Ltd. v. Arab Republic of Egypt, ICSID Case No. ARB/98/4, Award, ¶ 111 (Dec. 8, 2000).
162World Duty Free Co. Ltd. v. Republic of Kenya, ICSID Case No. ARB/00/7, Award, ¶ 157 (Oct. 4, 2006) (where the tribunal dismissed an investor’s claim after discovering that he had bribed the president of Kenya); see also Carolyn B. Lamm, Hansel T. Pham & Rahim Maloo, Fraud and Corruption in International Arbitration, TDM 3 (May 2013) ("The prohibition of bribery and corruption is widely recognized as a quintessential rule of transnational public policy. International consensus vehemently declares that bribery and corruption is morally and economically unacceptable [and] fundamentally wrong. [This view] is so universal that it has developed into a well-established example of a rule of transnational public policy”).
163World Duty Free Co. Ltd. v. Republic of Kenya, ICSID Case No. ARB/00/7, Award (Oct. 4, 2006).
164Inceysa Vallisoletana, S.L. v. Republic of El Salvador, ICSID Case No. ARB/03/26, Award (Aug. 2, 2006).
165Emmanuel Gaillard, Thirty Years of Lex Mercatoria: Towards the Selective Application of Transnational Rules, 10 ICSID REV. 208, 214 (1995).
205CHENG, supra note 2, at 327 (citing 2 ARB. INT’L 706, 708 (Transl.)); see also Tokios Takelés v. Ukraine, ICSID Case No. ARB/02/18, Award, ¶¶ 121, 124 (July 26, 2007); Alpha Projektholding GmbH v. Ukraine, ICSID Case No. ARB/07/ 16, Award, ¶¶ 236-37 (Nov. 8, 2010); Tradex Hellas S.A. v. Republic of Albania, ICSID Case No. ARB/94/2, Award, ¶ 74 (Apr. 29, 1999) (it can be considered as a general principle of international procedure procedure - and probably also of virtually all national civil procedural laws -[] that it is the claimant who has the burden of proof for the conditions required in the applicable substantive rules of law to establish the claim”); Salini Costruttori S.p.A. and Italstrade S.p.A. v. Hashemite Kingdom of Jordan, ICSID ARB/02/13, Award, ¶ 70 (Jan. 31, 2006) (“It is a well established principle of law that it is for a claimant to prove the facts on which it relies in support of his claim”); Asian Agric. Prods. Ltd. v. Republic of Sri Lanka, ICSID Case No. ARB/87/3, Award, ¶ 56 (June 27, 1990), 6 ICSID REV. 526 (1991); Autopista Concesionada de Venezuela, G.A. v. Bolivarian Republic of Venezuela, ICSID ARB/00/5, Award, ¶ 110 (Sept. 23, 2003); lnt’l Thunderbird Gaming Corp. v. United Mexican States, UNCITRAL, Award, ¶ 95 (Ian. 26, 2006); ICC Award No. 1434, J DROIT INT’L (CLUNET), at 978, 982 (1976); Perenco Ecuador Ltd. v. Republic ofEcuador eh Petroecuador, ICSID Case No. ARB/08/6, Decision on Jurisdiction ¶ 98 (June 30, 2011) (stating that the burden to establish the facts supporting a claim lies with the claimant); SGS Société Générale de Surveillance S.A. v. Republic of Paraguay, ICSID Case No. ARB/07/29, Award, ¶ 79 (Feb. 10, 2012) (holding that the claimant bears the initial burden of proof in substantiating its claims); Middle East Cement Shipping & Handling Co. S.A. v. Arab Republic of Egypt, ICSID Case No. ARB/99/6, Award, ¶ 89 (Apr. 12, 2002); Generation Ukraine, Inc. v. Ukraine, ICSID Case No. ARB/00/9, Award, ¶¶ 19.1, 19.4 (Sept. 16, 2003); Noble Ventures, Inc. v. Romania, ICSID Case No. ARB/Ol/ll, Award, ¶ 100 (Oct. 12, 2005); Saipem S.p.A. v. People’s Republic of Bangladesh, ICSID Case No. ARB/05/7, Decision on Jurisdiction, ¶ 83 (Mar. 21, 2007).
206MOITABA KAZAZI, BURDEN or PROOF AND RELATED ISSUES: A STUDY ON EVIDENCE BEFORE INTERNATIONAL TRIBUNALS 72 (1996) (citing JACKSON H. RALSTON, THE LAW AND PROCEDURE OF INTERNATIONAL TRIBUNALS 220 (1973)); see also id. at 53—75 et seq.
228CHENG, supra note 2, at 322; see ICC Award No. 4145 (Second Interim Award), 12 Y.B. COMM. ARB. 97 (1987) (also published in: J. DROIT INT’L (CLUNET), at 985 (1985)) (acknowledging the "general principle [] of interpretation [that] a fact can be considered as proven even by the way of circumstantial evidence”).
229Corfu Channel Case (U.K. v. Alb), Judgment, Merits, 1949 I.C.J. 4, 18 (Apr. 9). Although the ICJ in the Corfu Channel case included the caveat that such inference must leave no room for reasonable doubt," that high threshold has disappeared in more recent cases; see also Abrahim Rahman Golshani v. Gov't of the Islamic Republic of lran, 29 Iran—U.S. Cl. Trib. Rep. 78 (1993); Agric. Prods. Ltd. v. Republic of Sri Lanka, ICSID Case No. ARB/87/3, Award, ¶ 45 (June 27, 1990).
241CHENG, supra note 2, at 336.
242Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. 43, 51 ¶ 116 (Feb. 26).