CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ STATE SUCCESSION TO INTERNATIONAL RESPONSIBILITY A CRITICAL ANALYSIS… Indeed, whether the concept of unjust enrichment is a general principle of law is controversial and several other authors refute the idea. 102 For instance, according to Bedjaoui, the principle of unjust enrichment is not transposed into international law. 103 Similarly, Schreuer argues that the principle of unjust enrichment cannot be considered as a general rule or a normative principle in contemporary international law and it can be applied in international law only after being particularized and determined. 104 Besides, admittedly, there are some international awards referring to the obligation upon States to make restitution when they are unjustly enriched. However, their pertinence is doubtful because some of these awards are related to contractual disputes which were arguably resolved by tribunals on the basis of the principle of unjust enrichment, although they could have been resolved on the basis of ‘breach of contract’. For example, in the Lena Goldfields Ltd. v. USSR case, the Soviet Government which had concluded a concession contract with Lena Goldfields Ltd ., prevented the company from carrying on with its business and seized its valuable properties. The company claimed damages for breach of contract or restitution under the principle of unjust enrichment and the arbitral tribunal preferred to base its award on the principle of ‘unjust enrichment’ although there was a concession contract which was violated by the Soviet Government. 105 On the other hand, there are also other awards arguing that the application of the principle of unjust enrichment raises serious difficulties in municipal law and that although adopted by several States, the scope of this principle is uncertain. For instance, the Dickson Car Wheel Company award indicates that ‘the interpretation of the theory of unjust enrichment has encountered serious difficulties in its practical application in municipal law. There is no doubt that at the present time that theory is accepted and applied generally by the countries of the world, even in the absence of a specific law, but the difficulty rests in fixing the limits within which it can and must be applied. (…) It is obvious that the theory of unjust enrichment as such has not yet been transplanted to the field of international law as this is of a juridical order distinct from local or private law’. 106 At first glance, it does of course not seem ‘fair’ to refute the principle of removing benefits unjustly acquired. And there is no doubt that the concept of unjust enrichment exists in various legal systems, although under different titles such as restitution, quasi-contract and illegal enrichment. 107 However, not only does its content vary among different municipal 102 The concept of unjust enrichment is a highly controversial subject in municipal laws as well. See Vincent Sagaert, ‘Unjust Enrichment and Change of Position’ (2004) 11 MJ 2 159; Steve Hedley, ‘Unjust Enrichment’ (1995) 54 CLJ 578; Emily Sherwin, ‘Reparations and Unjust Enrichment’ (2004) 84 B.U. L. Rev. 1443. 103 Bedjaoui (n 71) 554-55. 104 Christophe H Schreuer, ‘Unjustified Enrichment in International Law’ (1974) 22 Am. J. Comp. L. 281, 287 and 301. 105 The Lena Goldfields Ltd. v. USSR , in Nussbaum, ‘The Arbitration the Lena Goldfields, Ltd. and the Soviet Government’ (1950-1951) 36 Cornell Law Quarterly 31, 31-53. See also Schreuer (n 104) 287-89. 106 Dickson Car Wheel Company (USA v. United Mexican States) , p. 676. In this case, the United States invoked on behalf of an American company that the Mexican National Railways, a private corporation whose majority shareholder was the Mexican Government at the time the contract was concluded, did not pay its contractual debt. The debt was not paid due to the fact that during the Revolution (1914–1925) the railways were operated by the Mexican Government. The American-Mexican General Claims Commission pointed out that owning the majority of the corporation’s shares did not make the Mexican Government a party to the contract and rejected the United States’ argument based on unjust enrichment. 107 Niva Elkin-Koren and Eli M Salzberger, ‘Towards an Economic Theory of Unjust Enrichment Law’ (2000) 20 International Review of Law and Economics 551.

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