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3 Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)

3 Chovancová K.

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UPLATNENIE FORCE MAJEURE V MEDZINÁRODNOM INVESTIČNOM PRÁVE V SÚVISLOSTI S PANDÉMIOU COVID 19

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Chovancová K.

Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)

2022

tom 105

nr 6

522 – 535

Force majeure is today accepted as a fairly classical topic and the circumstance, excluding wrongfulness of the state doing in majority of the world legal systems and the level of its use increased considerably in the last decade. The coronavirus pandemic has enlivened the concept of force majeure in many areas of law, including international investment law. It also proved to be a good source of an ongoing debate on importance of force majeure for international investment and commercial community. This article is an attempt to inform this debate. Except for a general introduction to the use of force majeure exception in relation to the COVID 19 pandemic, this study presents an expansion of its applicability in international investments area within the frame of the CIL, as well as an increase of use of the contractual force majeure clause in the energy sector. Equally, it is going to indicate the reasons of its practicability together with three inferences with regard to the application of force majeure under Article 23 of the ILC Articles, as well as the application of the contractual force majeure clause both in common law and civil law. First, it is no hearing on the grapevine, but the use of contractual force majeure has been heavily recommended in order to secure foreseeability, prudence and a legal certainty. Second, while the force majeure exception is being applied under the CIL mainly in II As, wise foreign investors may apply also the contractual force majeure clause in their investment contracts, concluded directly with their host states, while being propped up conveniently also with the supporting governing law of the contract. Besides, there is no reason to induce the civil law contractual parties to apply the common law force majeure clause with always available common law exceptions of impossibility, frustration and impracticability, as they are unknown to the civil law system.

FORCE MAJEURE AKO OKOLNOSŤ VYLUČUJÚCA PROTIPRÁVNOSŤ V MEDZINÁRODNOM INVESTIČNOM PRÁVE

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Chovancová K.

Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)

2022

tom 105

nr 3

191 – 204

Force majeure is today accepted as a fairly classical topic and the circumstance, excluding wrongfulness of the state doing in majority of the world legal systems. Within the realm of the international investment law, it belongs to the most frequently applied circumstances excluding wrongfulness with the level of its use, increased considerably in the last decade. The coronavirus pandemic has enlivened the concept of force majeure in many areas of law, including international investment law. It also proved to be a good source of an ongoing debate on importance of force majeure for international investment and commercial community. This article is an attempt to inform this debate. Except for introducing force majeure in international law and its purpose, this study presents a brief account of international disputes, in which the force majeure clause is applied very often. It examines the historical development of force majeure in international law and introduces its codified version. As the story develops, it makes three intertwined observations. The universal, one size fits all force majeure is an illusion. Today we may distinguish three its variations already in international law. First, when applied as a circumstance, excluding the wrongfulness under the ILC Articles, it excuses an internationally illegal and involuntary act of the state. Second, it may be applied as a circumstance, claimed in connection with reviewing due diligence, and finally as the force majeure clause in international agreements, tailored according to its common law perception. Without hesitation, it is exactly the second permutation of force majeure, which has a strong potential to be the most reliable for the host states, defending themselves against foreign investors, especially when force majeure is applied in the event of armed conflict.

ŠTANDARD SPRAVODLIVÉHO A ROVNOPRÁVNEHO ZAOBCHÁDZANIA A JEHO SÚČASNÝ STATUS V MEDZINÁRODNOM INVESTIČNOM PRÁVE

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Chovancová K.

Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)

2023

tom 106

nr 5

433– 446

The fair and equitable treatment standard (FET) has become an essential norm of the global investment regime in the majority of IIAs. Interestingly, it maintains its prominent status in spite of its content, criticized for being dodgy and uncertain due to the lack of clarity – the courtesy of its character of flexible and elastic norm, adjusting and developing according to the needs of investors and their host states. The FET offers a general point of departure in formulating the claim of investor, who experienced discrimination, or other host state’s unfair practices, such as the denial of justice, the lack of transparency, or arbitrariness. Due to the negative impact of the military invasion in Ukraine, it is the protection of investors against destruction of their investments and paying a lot of attention to legitimate expectations of investors, which are discussed intensely these days in international investment law. In the same vein, far from being a load of old codswallop, the direct relationship of the FET and the rule of law is accentuated as well. This article is a contribution to that discussion. In addition to introduction and the basic characteristics, it introduces two types of the FET, highlighting stepping up its game in connection with preserving the rule of law instead of doing a runner. Simultaneously, it incorporates three inferences, pertaining to determinacy and adoption of the FET in IIAs. First, the FET today reflects actively an unconditional adhering to the rule of law and the stricter evaluation of the investors’ legitimate expectations. Second, it ought to be perceived, considering a high level of deference to the regulatory competence of the host state’s national bodies. Finally, the lack of the FET’s accuracy is portrayed as its advantage in favour of flexibility. As for the labelling the FET as autonomous, or the part of the CIL, it is highly likely that the new USMCA’s formulation of the FET is not just embracing the coincidence.