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A Guide to State Succession in International Investment Law

Patrick Dumberry

A Guide to State Succession in International Investment Law provides a comprehensive analysis of State succession issues arising in the context of international investment law. The author examines whether a successor State is bound by the investment treaties and State contracts which the predecessor State had signed with other States and foreign investors before the date of succession. Actors who are called upon to apply rules of State succession in investment arbitration cases will find this book a valuable source of practical guidance with strong theoretical foundations.
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Chapter 5: CRITICAL ANALYSIS OF THE SOLUTIONS ADOPTED BY THE VIENNA CONVENTION

Patrick Dumberry

Extract

Chapter 5 examines what happens to a BIT when the States concerned have not agreed (expressly or tacitly) on its continuation. In doing so, it critically analyzes the regime set out under the 1978 Vienna Convention on Succession of States in Respect of Treaties for each specific type of State succession. It specifically assesses the soundness of the application in the principle of continuity, which has been adopted under the Vienna Convention for cases of secession and dissolution of States. This solution of automatic continuity is simply incoherent with the ILC’s position of tabula rasa adopted for Newly Independent States. In any event, it is plainly unjustifiable to adopt the principle of automatic continuity to bilateral treaties given the very particular nature of these instruments. It will be argued that bilateral treaties do not automatically continue to be in force unless both States concerned have explicitly (or tacitly) agreed to such a continuation.

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