CYIL vol. 8 (2017)

PETR STEJSKAL CYIL 8 ȍ2017Ȏ armed conflict especially, it can sometimes be difficult to find evidence proving that particular losses were incurred due to acts committed by a particular party to the conflict. 86 For these reasons, the legal protection of foreign investments during non-international armed conflicts may very often be insufficient. The factual political stability in the region (which can however change unexpectedly and quickly, as we have witnessed in the middle- east after the so-called Arab Spring) is therefore another crucial factor to consider when balancing risks and gains, next to the content and scope of investment treaties to which the host state is party. But, hypothetically, a foreign investor may have a chance to demand its compensation even for the acts committed by insurgents where the host state was not originally responsible for them (typically for utilising its due diligence up to its real possibilities). According to the rules of responsibility of states for internationally wrongful acts, if the insurrectional movement becomes a new government, its acts will be considered as conduct of the host state 87 and the question is whether the host state can later be held responsible for the breach of full protection and security on this ground. Actually, there are other interesting questions connected with the victory of an insurrectional movement, such as the succession to investment protection treaties in the case that the movement establishes a new state. 88 Finally, concerning non-international armed conflict, there is another interesting issue. It is quite often that companies located in the territory under the control of insurgents, including those owned by foreign investors, cooperate with insurgents. We could see that phenomenon for example in Libya 89 or several states in Central Africa where exploitation and trade in lucrative natural resources has become a source of combatant self-financing. 90 And we may ask whether a foreign investor who previously supported anti-governmental forces can later seek compensation for losses caused as a result of non-international armed conflict. Hypothetically, according to the doctrine of clean hands, a claimant’s involvement in activity unlawful under either municipal or international law may bar the claim. 91 In other words, the doctrine of clean hands is considered to be grounds for inadmissibility of a claim before a tribunal (e. g. International Court of Justice). 92 Is the same true in the proceedings before arbitral tribunals, so that the respondent state can argue that the applicant does not have clean hands and request the arbitral tribunal to dismiss the case? 3.4 Foreign state intervention into a non-international armed conflict For the sake of completeness, it is necessary to mention that during non-international armed conflict, it can also happen that another state involves itself in the clashes between governmental forces and insurgents during non-international armed conflict. This scenario is 86 See for example, AAPL v. Sri Lanka , p. 551. 87 DARS, Art. 10 par. 1. 88 TAMS, Ch. J., State Succession to Investment Treaties: Mapping the Issues. ICSID Review , Vol. 31, Issue 2, 2016. 89 The Arabian Gulf Oil Company announced plans to use oil funds to support opposition in 2011. See Libya’s Arabian Gulf Oil Co hopes to fund rebels via crude sales-FT [online]. af.reuters.com, March 11, 2011 [accessed on May 15, 2017]. Available at < http://af.reuters.com/article/libyaNews/idAFL3E7EB03B20110311 >. 90 BALLENTINE, K., NITZSCHKE, H., Business and Armed Conflict: An Assessment of Issues and Options. Die Friedens-Warte , Vol. 79, 2004, pp. 36-37. 91 CRAWFORD, J., Brownlie’s Principles of Public International Law , 8th edition, 2012, p. 701. 92 Nicaragua Case (Nicaragua v. United States), ICJ, 1986, Dissenting opinion of Judge Schwebel, 268; Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ, 2002, Dissenting Opinion of Judge Van den Wyngaert, 35.

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