Berk Demirkol

Robinson College

Responsibility of the State for the Judiciary in Investment Arbitration

This thesis looks into the internationally wrongful acts that the judiciary may commit and tries to explore in which extent an investor would be able to allege this violation of international law in investment arbitration. The research stands on three pillars. The first pillar is the determination of the internationally wrongful acts that the judiciary may commit. The question is whether the State's responsibility for the judiciary is limited by the denial of justice or some situations which do not constitute a denial of justice could also trigger the responsibility of the State. For instance, could an investor allege a violation of due process in investment arbitration (Loewen v. United States), even though the procedure before municipal courts go on? The second pillar is the analysis of the standards of treatment provided by the investment treaty, which contains the consent of the host State to arbitration. The arbitral tribunal would not have jurisdiction to control each violation of international law, but only the disputes for the settlement of which the consent is given. Usually, the consent given in investment treaties covers the disputes related to the standards of treatment which are undertaken in this treaty. Hence, as partly done in Saipem v. Bangladesh, I will analyze which treaty undertakings may be violated by which wrongful acts of the judiciary under which circumstances. The third pillar concerns the standing of the investor. In other words, the question is when an investor may initiate a treaty claim. This question covers some sub-questions, as when the loss of right happens, whether the investor needs to exhaust local remedies, if so when the investor is deemed to have exhausted the local remedies.  

Start Date: 2010/10.

End Date: 2014/10.

2010 - 2014

PhD Candidate in Law, University of Cambridge

2007 - 2010

Master of Private Law (LLM), University of Galatasaray, Istanbul

Master thesis: Applicable Law to Contracts in Turkish Private International Law in the Framework of Comparative Law

2008 - 2009 

Master in International Dispute Settlement (LLM), University of Geneva & Graduate Institute, Geneva

Master dissertation: Pseudo-National Companies in Investment Arbitration

2003 - 2007

BA, Faculty of Law, University of Galatasaray, Istanbul

Erasmus semester: University of Tubingen, Germany (2006-2007)

Investment Law, Conflict of Laws, International Commercial Arbitration.

Books

• Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun'un 24. Maddesi Çerçevesinde Sözleşmeye Uygulanacak Hukuk (Applicable Law to Contracts in the Framework of Article 24 of the Turkish Private International Law Act), Istanbul 2011, 440 pages; for more information see: http://www.vedatkitapcilik.com/vedat.php?sector=publication&task=new&subtask=detail&group_id=285&book_id=23028

Articles (Sole Author)

• 'Muvazaa ile Muvazaaya Benzer Kurumlar ve Senetle İspat Kurallarının Bu Kurumlardaki Uygulaması (Simulation and Similar Institutions and the Application of the Rules of Documentary Evidence in these Institutions)', Prof. Dr. Sarper Süzek'e Armağan (Liber amicorum Prof. Sarper Süzek), 2011, p. 3011. 

Articles (Co-Author)

• 'The 2009-10 Legal Year in Overview' (2011) 7(2) Cambridge Student Law Review 9, with Martin Eduard Debusmann, Meredith Hagel, Yin Harn Lee, Sneha Ramakrishnan and Christoph Karl Sliwka

Mr Zachary Douglas