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  • Series: Elgar International Investment Law series x
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Patrick Dumberry

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Patrick Dumberry

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Patrick Dumberry

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Patrick Dumberry

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Patrick Dumberry

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Patrick Dumberry

Chapter I provides an overview of the issues addressed in this book and its structure. It also makes the important distinction between situations of State succession and those of State identity. Finally, it explains the classification adopted in this book of the six different types of State succession.

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Patrick Dumberry

Chapter 2 is a general introduction to the controversial issue of State succession to treaties examined in Part B. It provides an overview of questions addressed in this part.

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Patrick Dumberry

Chapter 3 analyses the practice of States (both successor States and other States parties to BITs) regarding the continuation of the predecessor State’s BITs after the date of succession. In many instances, the parties have mutually and expressly agreed upon a solution regarding succession to treaties. The practice of the following new States will be examined: The practice of the FRY and Serbia-Montenegro regarding SFRY’s BITs; the practice of the Czech Republic regarding Czechoslovakia’s BITs; the practice of Kosovo regarding Serbia’s BITs; the practice of new States in the context of the break-up of the USSR and the practice of Montenegro regarding Serbia-Montenegro’s BITs.

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Patrick Dumberry

Chapter 4 examines the situations where there is a tacit agreement between the States concerned for the continuation of a specific BIT. It examines this question in the context of statements made by States and consent which can be inferred from the conduct of the parties. With respect to the former, this Chapter examines the nature and effect of devolution agreements. It also explores the required form of a unilateral declaration, the effect on the new State making the declaration, the response given by the ‘other State party’ following a unilateral declaration and, finally, the relevant criteria to determine whether consent can be inferred from the silence and passivity of the ‘other State party’.

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Patrick Dumberry

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.