Mary B Ayad

The Vienna Convention as Authority for the Use of Precedent as Customary Practice in International Arbitrations of Oil Concessions and Investment Disputes in North Africa and the Gulf Arab States; or a Lex Mercatoria for a Lex Petrolea

General principles of law are a valid source of law for arbitral tribunals. The Vienna Convention 1 allows recourse to general principles of law. In Bilateral Investment Treaty (hereinafter “BIT”) interpretation but also in International Commercial Arbitration (hereinafter “ICA”)/International Investment Arbitration (“hereinafter “IIA”), arbitrators can be guided by the Vienna Convention 2 and in so doing may refer to a number of ‘rules’ and norms of ‘international law’ applicable to the relations between states, such as those mentioned herein including principles drawn from the lex mercatoria or other types of international customary law, e.g. the principle of pacta sunt servanda, which honours contracts between states and investors, as well as the principle of precedent. Additionally, they may refer to customary norms from other jurisdictions that can harmonise with Western law.

The Doctrines of Public Policy and Competence in Investor–State Arbitration

AbstractInternational commercial arbitration (ICA) and international investment arbitration (IIA), as they are currently practiced in the Middle East and North Africa (MENA) inter alia, cannot be seen in isolation. Long-standing historical forces have brought about both the development of jurisprudence as well as its current problems. In arbitrations in which one party is a MENA State, from the early oil concessions throughout the present, ICA and IIA law and practise have demonstrated that the central problem therein has to do with a conflict of laws. What is proposed herein is that common legal principles found in civil, common and Islamic law, which form part or all of the legal systems in the MENA, can be distilled to create a new ICA law code for adoption in the MENA; a code which addresses many of the doctrinal issues that arise in ICA and IIA proceedings. To this end, this article presents the results of this highly practical research which represents a synthesis of theory and practise.