As a “general principle”, good faith is one of the sources of international law. In terms of rights and obligations, the specificities of the principle will be identified here. In general international law, rules such as pacta sunt servanda, abuse of rights, confiscation and acquiescence and negotiation of disputes are to some extent based on good faith. In the interpretation of contracts, good faith takes various forms from the moment before signing to interpretation. These are described here. It is safe to conclude from the foregoing analysis that the primary function of good faith is to protect the legitimate expectations of legal persons and to seek stability, legal certainty and foreseeability, as well as to protect the object and purpose of judicial proceedings against excessive unilateral action that undermines common processes and interests. This principle also prohibits abusive and arbitrary acts, in particular the exercise of legal rights for purposes and purposes that are unrelated to their granting and that are harmful to others or the general public. As international law becomes increasingly fragmented and dispersed into “self-contained” regimes, the role of good faith will expand and create more permutations of this limitation, since good faith essentially serves to give legal value to the expectations of States with regard to the actions of other States. Good faith may therefore not be easily definable in the abstract, but it is essential. Nevertheless, the principle of good faith is not unlimited and the arbitrators have refused to interpret it as follows: the principle of good faith covers different types of situations.15 In particular, courts have relied on this principle when analyzing cases of fraud,16 thatch,17 corruption,18 abuse of process,19 abuse of rights,20 and dirty hands.21 See section IV below. Arbitral tribunals must also act in good faith,33 in particular in the application of national law,34 in interpreting the applicable instrument of jurisdiction (see section I and consent to arbitration, section II) above and in deciding on the division into two parts.35 which is understood as an expression of pacta sunt servanda et obligatio est servanda. [14] This is an extremely broad assertion and, if followed, it could be said that the entire legal order, which is based on agreements and practices, is ultimately only an expression of the principle of good faith. However, there are certain principles on which liability is based – the principle of good faith has often been recalled by arbitral tribunals for the legality of an investment.41 They have often argued that violations of the international principle of good faith “go hand in hand” with violations of domestic law, since it exists in most national legal systems.42 As a result, They felt that they lacked jurisdiction.
if an investment was made in bad faith.43 See also legality of the investment and Salini`s test. The protection of personnel of international organizations has given rise to an important branch of international law, international administrative law. As the Court of Justice of the European Communities held in the Lachmüller case of 1960, the principle of good faith governs contractual relations between the organisation and the agent. [12] This area of international jurisprudence therefore includes all the typical aspects of public law in good faith, namely the protection of legitimate expectations, the consequences of acquiescence and disqualification, the prohibition of abuse and arbitrariness, and the prohibition of abuse of power. Good faith is one of the most powerful general principles of law, covering an entire legal system. It guarantees the international legal order at a time when customary or contractual law is not yet established. Article 38(1)(c) of the ICJ Statute provides that the Court “shall apply the general principles of law recognized by civilized nations”. The nature of good faith as a paramount principle of law makes it difficult to define absolutely. [1] The purpose of this article is therefore not to attempt to define it, but rather to describe and illustrate its place in international law. The principle of abuse of process applies to cases where the investor restructures its assets by creating new companies by acquiring a new corporate nationality allowing the application of a bilateral investment treaty (BIT)[16] for the sole purpose of obtaining access to arbitration. If a supposedly new claim is essentially the same as a previous one and is refiled bypassing the legal arrangements (transfer of the claim to another entity), it is dismissed for abuse of process. Although the exact nature of the principle of good faith is still disputed,7 arbitral tribunals refuse to consider it as an autonomous source of legal obligations.
On the contrary, the principle goes hand in hand with compliance with obligations (e.g. “Pacta Sunt Servanda” under Article 26 CRC(1969)8 and is an essential element of the process of interpreting contracts under Articles 31 to 32 of the LCV.9 Good faith should also be maintained throughout the arbitration23 and includes: The principle of good faith is considered to protect “reciprocity”10 and “legitimate expectations”11 in the performance of investment-related obligations (see resolution 1803 (XVII)). United Nations General Assembly (1962)). Some countries have explicitly included the principle of good faith in the formulation of framework clauses12 contained in bilateral investment treaties (BITs). Arbitral tribunals have also frequently linked strong bona fide interactions to investment protection and related substantive treatment under investment treaties13 and procedural rules.14 [14] Lukashuk, `Introduction`, in M Bedjaoui (ed), Droit international — Bilan et perspectives, vol. I (Paris, 1991) 320.