Texaco-Libya Arbitration case brief

Texaco-Libya Arbitration (Arbitration, 1978; p. 112)

• 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. 19^th Century Positivist View