- Libyan law nationalized Texaco properties/assets. Deeds of concession btwn the companies involved and Libya in which the law applicable was “principles of intl law.” (Choice of law provision)
- This case is interesting b/c it is a private party v. a state. This is likely why arbitration was chosen here.
- Arbitration is impt:
- More expedient than trials.
- Two conventions on this. (see my 9/19 (4) notes).
- Libya wld abide by arbitration decision b/c they wouldn’t like to be seen as a “violator” and b/c they are interested in Western capital/investment.
- Appropriate compensation must be given.
- Ct goes to UN to discern “principles of intl law.”—UN resolutions (recommendations).
- There is no dispute that countries can nationalize-the conflict is over the appropriate compensation. (Prompt, adequate [Western Companies] v. including things like did the company exploit)
- Custom can be created outside of the Article 38 sources.
- Have to distinguish btwn resolutions that state the existence of a generalized agreement and those that have nothing more than a de lege feranda value only in the eyes of those States that adopted them. Paragraph 87, p. 120
- Article 38 makes no reference to resolutions—what shld be their status?
- International Resolutions of other international orgs.
- What about resolutions of NGOs that 90% of countries support but the few largest countries do not.
- P. 121, n.1: arbitrations can be tailor made to specific situations like this one.
- P. 122, n. 3: To have custom, you must have opinio juris. (this is how resolutions fit into Article 38)
- General Principles of International law:
- One source of intl law
- Question of consent—not necessary here
- Lotus and Asylum really focused on consent. 19th Century Positivist View
Sunday, March 25, 2012
Texaco-Libya Arbitration case brief
Texaco-Libya Arbitration (Arbitration, 1978; p. 112)
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