Investment dispute resolution

8/18/2019 Investment dispute resolution

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P ROJECT R EPORT ON

“S ETTLEMENT OF I NTERNATI ONAL

I NVESTMENT DI SPUTES ”

Submitted to:

Mr. Atif Khan

(Faculty Trade and Investment Law)

Submitted by:

Prashasti Janghel

Roll no. 97

Semester VII (B)

Hidayatullah National Law University, Raipur

Submitted on:10

th

October, 2014


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International Investment Law Settlement of International Investment disputes

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CONTENTS

ACKNOWLEDGEMENTS II

A N I NT RO DU CTI ON III

R ES EARC H M ETHO DO LOG Y IV

C HA PT ER 1:I NT ERN AT IONA LIS ATIO N OF IN VE STME NTS 1-3

C HA PT ER 2:I NV ES TO R’ S R IG HT S 4-7

C HA PT ER 3: I NVES TOR S AT E DIS PUT E SET TL EM ENT 8-10

C HA PT ER 4: T HE H IS TOR Y OF DI SPU TE RESOL UT ION MET HOD S 11-12

C HA PT ER 5: T HE VA RI OUS D IS PU TE RE SOL UTI ON FO RU MS 13-22

C ONCLUSION 23

B IBL IOGRAP HY 24


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ACKNOWLEDGEMENTS

I feel highly elated to work on the topic “DISPUTE SETTLEMENT IN I NTERNATIONAL

I NVESTMENT LAW” The practical realization of this project has obligated the assistance

and help of many people. I express my deepest regard and gratitude to my teacher, Mr.

Atif Khan for his unstinted support. His consistent supervision, constant inspiration and

invaluable guidance have been of immense help in understanding and carrying out the

nuances of the project report.

My gratitude also goes out to the staff and administration of HNLU for the

infrastructure in the form of our library and IT Lab that was a source of great help for

the completion of this project.

Prashasti Janghel

Roll no. 97

(Semester VII)


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INTRODUCTION

Investor-State dispute resolution relates to the process of decision-making that transnational

corporations undergo when analyzing whether to invest their capital in a particular country.

The international community has created a variety of devices, such as the Washington

Convention for Settlement of Investment Disputes ("Washington Convention or the ICSID

Convention") and the International Centre for the Settlement of Investment Disputes

("ICSID"), that enable the developing countries to signal the rest that they are willing to

adopt a system that provides for protection of foreign direct Investment ("FDI") 1 These

signals transform into 'credible commitments' to treat foreign investors fairly 2 and

presumably increase the appeal of these countries to foreign investors.

The developing economies and their attitude towards the ICSID Convention and the ICSID

have been complex. During the first decades of ICSID's existence, most of the Association of

Southeast Asian Nations ("ASEAN") countries adopted it, but virtually all Latin American

countries avoided it, preferring to adopt a system of "internationalisation" of foreign

investment contracts, which was inherently weak. In the 1990's, developing countries started

to open up their economies and steps were taken in order to attract foreign capital.

Developing countries' contempt for FDI largely disappeared and a vast majority of the Latin

American countries became member States of the ICSID. Other developing countries like

Russia and China joined in the 1990's. India never joined the ICSID. Though all the BRIC

(Brazil, Russia, India and China) countries have entered into a lot of BITs for the promotion

of trade, there seems to be a variety in the attitude of these countries when it comes to dispute

resolution.

Conversely, the attitude of the developing countries towards ICSID in the recent past has

been bordering the negative. . This seems to be the case especially with Latin America.

This research project looks at the reasons developing economies entered into Bilateral

Investment Treaties ("BITs"), the settlement of disputes though investment arbitration, the

frustration of developing economies with arbitration and possible outcomes in the future for

the settlement of disputes.

1 Ignacio A. Vincentelli, The Uncertain Future of ICSID in Latin America, 16(3) LAW & BUS. REV. AM. 409

(2010).

2 Zachary Elkins, Andrew T. Guzman and Beth A. Simmons, Competing for Capital: The Diffusion of BilateralInvestment Treaties, 1960-2000, 60(4) INTERNATIONAL ORGANIZATION 822 (2006).


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OBJECTIVES

The specific objectives of the study are as follows:

1) To understand the establishment of ICSID for settlement of disputes.

2) To look into the history of Investor state Dispute settlement.

3) To understand the various dispute resolution forums.

4) Analyse the treaties and dispute resolution mechanisms.

R ESEARCH METHODOLOGY

This project report is based on analytical and descriptive Research Methodology. The

research problem has been provided by our faculty keeping in view the needs of the topic.

Secondary and Electronic resources have been largely used to gather information and data

about the topic.

Books and other reference as guided by Faculty have been primarily helpful in giving

this project a firm structure. Websites, dictionaries and articles have also been referred.


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CHAPTER 1: INTERNATIONALISATION OF

INVESTMENTS

The term "transnational law" was first used by the American jurist Phillip Jessup. He used

this term to refer to law which regulates actions or events that transcend state borders, but

which is not international law strictly speaking because it is not dealing with the relations of

one state or intergovernmental organisation with another. Transnational situations may

involve individuals, corporations, states, organisations of states, or other groups. 3 According

to Jessup, both private and public international law were implicated in these situations, as

well as other rules that did not fit neatly into the categories of international or municipal law.

The internationalisation of foreign investment contracts was premised on an assumption ofinequality between developed and developing countries. It was assumed that developing

states did not have sophisticated legal systems that could deal with disputes arising out of

foreign investment contracts. Although not distant in time from awards such as Aramco

which gave primacy to the laws of the host state4, the more recent Sapphire and Texaco

awards have used ingenious arguments to suggest that international law is automatically

applicable to foreign investment contracts.5

Today, virtually all states have indigenous laws on foreign investment. The case for

reference to general principles of international law or other systems of law, based on the

justifications advanced in the early arbitrations, therefore no longer exists.6 At least two

arguments may be advanced to suggest that reference to general principles of international

law has no place in modern law relating to the settlement of foreign investment disputes: (i)

Aramco stated explicitly that the position in international law was that general principles of

international law would apply only if the laws of the host state could not deal with the issues

under consideration.7

If this was indeed the position in international law, then it could nothave been modified by a few subsequent arbitral awards, which are at best subsidiary sources

of international law. (ii) The continuous and consistent assertion of the principle of

3 W. Friedman. The Changing Structure of International Law 34 (New York: Columbia University Press, 1964.4Lord McNair, 'The General Principles of Law Recognised by Civilised Nations", 33 British Yearbook of

International Law 9 (1957).5 See Judge Cavin in National Iranian Oil Company (NIOC) v. Sapphire International Petroleum Ltd. (SapphireAward), 16 June 1968, 35 ILR 136 (1968), and Professor Dupuy in Texaco Overseas Petroleum Co. v. LibyanArab Republic (Texaco Award)6

American Independent Oil Company (AMINOIL) v. Kuwait (Aminoil Award), 24 March 1982, 21 ILM(1982). 7 Supra note 4.


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permanent sovereignty over natural resources by developing countries in the 1960s and 70s

neutralizes the value of these arbitral awards and strengthens the earlier principle that laws of

the host state would apply to foreign investment contracts (at least in so far as they relate to

natural resources).

It is interesting to note that when foreign investment disputes arose in developed countries,

the law of the host state was the only relevant law. Where the host state was a developing

country, its law was irrelevant. This differential treatment was sought to be justified on policy

considerations. It was argued that foreign investment would not flow into developing

countries unless such investment were given a higher standard of protection than was

available under the uncertain local law. Foreign investment was considered unqualifiedly

beneficial to the host state and as a quid pro quo the host state would have to accord

international standards of protection to such investment. 8 These unverified policy

prescriptions have become articles of faith and continue to be echod in the constitutive

documents of organisations dominated by developed countries, including instruments

establishing arbitral institutions. For instance, the preamble to the International Convention

on the Settlement of Investment Disputes (hereafter ICSID Convention) recognises the "role

of private investment in economic development". These ideological preferences couched in

legal terminology have a tremendous impact on the process of arbitration itself.

Developing states sought to counter the growing internationalisation of foreign investment

contracts with the ideology of the New International Economic Order and the assertion of

permanent sovereignty over natural resources. The latter was no more than a re-articulation of

the universally recognised principle of sovereignty. The very fact that something as self-

evident as the sovereignty of states over the resources located within their borders had to be

articulated as a new principle of international law, attests to the strength of the forces of

internationalisation (or neo-colonialism as some saw it) that were sought to be overcome.9

However, these moves against internationalisation of the law governing foreign investment

were dismissed as contributing merely to lex ferenda in the Texaco award10. In this context, a

more liberal trend is evident in arbitrations such as Aminoil v. Kuwait 11 where the fact that

there have been assaults on the notion of internationalisation was acknowledged.

8 M. Sornarajah. International Law on Foreign Investment, Cambridge University Press, 1994.9 P. S. Songal, "Multinational Corporations and Developing Countries", New Horizons for International Law &

Developing Countries 417.10

Supra note 8, at 112.11 A. Redfern, 'The Arbitration between the Government of Kuwait and Aminoil", 55 British Yearbook ofInternational Law 65 (1984).


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CHAPTER 2: INVESTOR ’S RIGHTS

Though Bilateral Investment Treaties are assumed to promote the interests of the foreign

investor, the underlying principles of such treaties emanate from sound principles entrenched

traditionally under international law. The right of equality and fair play are the basis from

which investment treaties developed,13 in allowing not just the state parties to the treaties,

but the investors themselves to directly bring a claim before an international tribunal. Also, a

number of treaties are drafted to ensure that contracts concluded by the host state and a

foreign investor under the laws of the host state are also subject to the international

guarantees provided by the treaty, including the dispute settlement mechanism under

Articles 25 and 26 of the ICSID Convention, which pose that states have to refrain from

requesting that local remedies be pursued. In turn, the investor's home state agrees not to

grant diplomatic protection. Because the guarantees contained in the treaty are placed outside

of the realm of diplomatic negotiations on the state-to-state level, the laws of the host state

are subject to international review at the will of a foreign investor. At the same time, the

classical stance of international law as inter-state law is modified in the field of foreign

investment by lifting individuals onto the international plane vis-'a-vis the host state 14 .

Further, under investment treaties, the host state's general consent and ratification of the bilateral treaty entails a broad waiver of its immunity from suit, not only before an

international tribunal but also before a domestic court called upon to enforce an award. In

addition, investment treaties authorize the enforcement of awards by investors under the

ICSID Convention or the New York Convention.

Further, investment treaties often obligate states in express terms to recognize and enforce an

award issued under the treaty, which allows an investor to seek enforcement in the courts of

any state party to the treaty itself. Most importantly, where an investment treaty provides

for enforcement under the ICSID Convention, the Panama Convention or the New York

Convention, an investor can seek enforcement in the domestic courts of any state party to

these arbitration treaties. This method of enforcement, is exceptionally powerful as most

states have ratified at least one of these three treaties: for example, approximately 165 states

are party to either the New York Convention or the ICSID Convention Based on this

13 Dr. Stephan W. Schill for IOANA TUDOR. The Fair and Equitable Treatment Standard in the International

Law of Foreign Investment. Oxford: Oxford University Press, Pp. xxxii (2008)14 Aishwarya Padmanabhan, Relationship Between FDI Inflows and Bilateral Investment Treaties/InternationalInvestment Treaties in Developing Economies: An Empirical Analysis 22, (2011).


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structure, investment treaty awards are more widely enforceable than the rulings of any

court or tribunal, international or domestic that has the authority to resolve individual claims

in regulatory disputes. For instance, the few human rights treaties that allow an international

court or tribunal to hear individual claims do not authorize enforcement by domestic courts,

whereas judgments of the International Court of Justice are enforceable only by the UN

Security Council. In contrast, awards issued by investment treaty tribunals are enforceable

in the courts of as many as 165 countries, which gives them coercive power and force that is

unrivalled in public law adjudication. Thus, as a system, the treaties greatly expand state

liability in public law by extending it to legislative and judicial acts, and by allowing

damages to be awarded in the absence of fault.

By opening the door to parallel claims and forum-shopping under so many treaties, states,

specially developing economies, have moved too far to their detriment in international

business. It seems they have executed a transformation of international obligations and

adjudication without adequate consideration of the consequences.

THE TWO APPROACHES AVAILABLE WITH AN INVESTOR IN SETTLING DISPUTES:

A significant analytical difference between the approaches described below is the number of

fora that are made available to an investor in the context of a given dispute. Treaties thatrequire investors to make a final and exclusive choice between dispute settlement

mechanisms arguably allow only one attempt to obtain satisfaction. By contrast, other

categories of treaties allow investors to bring their case to two dispute settlement

mechanisms.

1. Choice

Almost all treaties concluded in the past decade give investors an explicit choice

whether to use domestic remedies or international arbitration to present their claims.

Variation is observed as to whether that choice is final and exclusive. Choice final

and exclusive More than a third of the treaties that provide a choice between domestic

judicial review and international arbitration specify that a choice, once made by the

investor, is final and exclusive (so-called “fork -in-the road” provision). Under that

approach, an investor could not initiate international arbitration proceedings once it

has brought its case to domestic courts, and vice versa.15 In addition, many treaties

15 South Africa-Zimbabwe BIT (2009), Article 7(2) and 7(3).


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contain provisions that make only one of the two possible choices explicitly final

These provisions exist in two forms: the large majority denies access to international

arbitration once an investor has chosen to bring its case to domestic courts (but

remains silent as to an investor‟s right to bring a claim to domestic courts once it has

started arbitration and a few provide that an investor waive its right to access domestic

courts prior to initiating international arbitration proceedings. 58 treaties provide an

exception to fork-in-the-road provisions by allowing investors to seek interim relief in

domestic courts of the host state. There are two type of provisions, one allowing the

investor to seek interim relief with domestic courts only before the arbitration

proceedings are initiated,16the other allowing the investor to seek interim relief at all

times, including after arbitration proceedings are initiated. 17 Choice not final or

exclusive Some treaties leave the choice between international arbitration and

domestic court proceedings reversible until a specified event occurs, often – but not

always – a decision by the initially chosen adjudication body. 18 A few treaties

explicitly allow the simultaneous pursuit of the claim in domestic courts and

international arbitration until this moment.19

2. Chronological sequence

Another way that certain treaties specify includes those where the investor first

presents their dispute to domestic courts before they may, under certain conditions,

bring it to international arbitration. This type of provision was a common feature of

international investment agreements during the 1970s and the 1980s; since then, it is very

much less used, and has not appeared in treaties concluded from 2004 onwards.

3. Subject matter

Further, there were treaties which specify the dispute resolution mechanism as in relation tothe subject-matter of the investor‟s claim. Most often, these treaties restrict access to

international arbitration to claims concerning alleged breaches of specific treaty provisions

such as the amount of compensation for expropriation, provisions on compensation for losses,

or free transfers.20 China and, to a much lesser extent, some other countries have used this

approach in a significant number of their treaties.

16 Peru-Singapore FTA (2008), Article 10.17(5).

17 Japan-Brunei Darussalam EPA (2007), Article 67.11.

18

Austria-Mexico BIT (1998), Austria-Slovenia BIT (2001).19 Germany-Madagascar BIT (2006) Article 11(2).20

Australia-China BIT (1988).


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4. Miscellaneous criteria

A few treaties use combinations of the aforementioned approaches or use entirely different

criteria to determine the available fora for the settlement of investment disputes. The

Australia-Czech Republic BIT (1993) for instance requires the home state of the investor to

agree ad hoc to a proposed submission to international arbitration. The China-Albania BIT

(1993), under which access to international arbitration is available for disputes involving the

amount of compensation, allows both the investor and the host State to bring the matter to an

international arbitral tribunal; the investor – but not the host State – loses this right once it has

brought the claim to domestic courts. Some treaties contain asymmetric provisions that

subject investors from one State party to different rules than investors from the other State

party. France-Jamaica BIT (1993) requires the parties in dispute to agree on whether they

settle their dispute through domestic review or international arbitration; international

arbitration is the default mechanism should the parties not find an agreement.


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CHAPTER 3: INVESTOR STATE DISPUTE

SETTLEMENT

Investor-State dispute settlement mechanisms (ISDS) are an important component of most

International Investment Agreements (IIAs) and have significant influence on how disputes

between States and investors are resolved. This statistical survey of a large sample of 1,660

bilateral investment treaties (BITs) identifies the main parameters of ISDS regulation in

BITs; traces their emergence, frequency and dissemination over time; and highlights past and

recent country-specific treaty practice. The survey finds among other things that many

countries define the procedural framework thinly compared to advanced domestic proceduralframeworks, despite a broad trend toward greater regulation in treaties of parameters of

ISDS. Many treaties offer foreign investors a range of procedural choices, such as a choice

between arbitration fora.21

ISDS provisions are a major component of investment treaties -- they provide fora for

investors to bring disputes regarding the treaty‟s substantive provisions. ISDS provisions list

the institutions to which investors may present claims for remedy under the treaty, in most

cases domestic judicial proceedings, or international arbitration. States have adopted very

different approaches when it comes to providing ISDS to investors. ISDS provisions are

frequently included in the treaty sample – 96% of the treaties in the sample contain such

provisions, including almost all of the recently concluded treaties.22 Even some of the oldest

treaties in the sample, dating back to 1960, provide for basic ISDS mechanisms. Of low

frequency in the sample is a first category of treaties (mostly early treaties) that only provide

access to domestic courts, and only to bring claims arising under the expropriation clause.

The ISDS language is then contained in the expropriation clause itself.23 A second category

of treaties provides for ISDS through international arbitration exclusively, and does not

include any mention of domestic judicial review as a means to settle investment disputes.

Only a small number of treaties, all concluded in the 1990s, include that type of language. 24

21 www.oecd.org/daf/internationalinvestment/investmentpolicy/foi.htm. Last accessed on 19

th Sep. 2014.

22 Among the 1,660 bilateral treaties in the sample, only 4% do not mention any ISDS mechanism. Countries

that began their BIT programme early on have a large number of treaties that do not provide for ISDS. Forinstance, 32% of Germany‟s treaties and around 28% of Switzerland‟s treaties do not provide for ISDS. Somevery recent treaties do not contain ISDS provisions either, for instance the Australia-United States FTA (2004)

and the Australia-New Zealand (ANCERTA Investment Protocol) (2011)23 Korea-Bangladesh BIT (1986), Article 5.1.24

Egypt-Netherlands BIT (1996), Article 9.1.

http://www.oecd.org/daf/internationalinvestment/investmentpolicy/foi.htmhttp://www.oecd.org/daf/internationalinvestment/investmentpolicy/foi.htmhttp://www.oecd.org/daf/internationalinvestment/investmentpolicy/foi.htmhttp://www.oecd.org/daf/internationalinvestment/investmentpolicy/foi.htm


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Finally, a third category of treaties provides for both international arbitration and domestic

remedies. From 1970 onwards, full ISDS sections (or annexes) began to appear in the

treaties. These treaties featured two innovations: i) they provided recourse to international

arbitration as a dispute settlement mechanism, and ii) while ISDS was initially limited to

claims arising under the expropriation clause, those treaties provided ISDS for claims arising

under other substantive treaty provisions.25

Over time, ISDS through international arbitration has become a common feature of

investment treaties, only 108 treaties, or 6.5% of the sample, do not provide for international

arbitration. Moreover, the right to bring an investment-related claim to international

arbitration is now mainly provided in addition to the possibility of resort to domestic

proceedings. Domestic proceedings have since 1972 frequently been made available for

claims arising under all substantive treaty provisions – not only, as in the early treaties, for

claims under the expropriation clause. Over 70% of recent treaties indeed explicitly mention

domestic judicial review as a dispute settlement mechanism in the ISDS clauses.26

Thus, the most often observed treaty practice is to provide a choice of forum to investors who

may bring their claims to international arbitration or domestic courts. International

investment agreements contain language to regulate that choice and set out rules to organize

the relationship between recourse to domestic courts and to international arbitration.

The conditions set to determine whether an investor may eventually bring its case to

international arbitration fall into three categories:

1. Some treaties allow an investor access to international arbitration if domestic courts

have failed to deliver a decision within a given period of time. Treaty language varies

as to whether a “decision”, or a “final decision”, or a “decision on the merits” by

domestic courts results in foreclosing the investor‟s right to bring its claim to

arbitration. For instance, some treaties concluded by Argentina and

Belgium/Luxembourg, allow an investor to bring the claim to arbitration if the

domestic courts have not delivered a final decision within a specific period of time,

often 18 months.27

2. Other treaties limit the right of an investor to eventually bring its case to arbitration to

circumstances where the decision rendered by domestic courts fails to fully settle the

25 Belgium/Luxembourg-Indonesia BIT (1970), Morocco-Netherlands BIT (1971), France (France-Tunisia BIT

(1972).26 www.oecd.org/daf/internationalinvestment/investmentpolicy/foi.htm last accessed on 1st Oct 2014.27

Argentina-Netherlands BIT (1992) Article 10 (3).

http://www.oecd.org/daf/internationalinvestment/investmentpolicy/foi.htmhttp://www.oecd.org/daf/internationalinvestment/investmentpolicy/foi.htmhttp://www.oecd.org/daf/internationalinvestment/investmentpolicy/foi.htmhttp://www.oecd.org/daf/internationalinvestment/investmentpolicy/foi.htm


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dispute.28

3. A third category of treaties allows recourse to international arbitration in case the

decision rendered by domestic courts is “manifestly unjust or violates the provisions

of the [international investment] agreement”.29

Dispute settlement has a central function in stabilizing the expectations of foreign investors

and enables them to counter opportunistic behavior by the host state, such as unreasonable

interferences with the investor's economic rights or even expropriations without

compensation. Recourse to a dispute settlement and enforcement mechanism empowers the

investor to effectively hold states liable for breaches of their promises in investment treaties

to not expropriate foreign investors without compensation, to treat them fairly and equitably,

to provide full protection and security, and so on. Conversely, from the host state's

perspective, the investor's right to initiate arbitration enables the host state to make credible

the commitments it made under its investment treaties.30 This, in turn, reduces the political

risk of foreign investment, lowers the risk premium connected to it, and therefore makes

investment projects more cost-efficient. This increased efficiency benefits not only investors,

but also the host state, as the products and services that a foreign investor offers become

cheaper. Certainly, the credibility of the host state's commitments does not solely rely on the

availability of dispute-settlement mechanisms. Reputation, community pressure, the moral

obligation to keep promises, or the host state's self-interest may also contribute to the host

state's adherence to its investment treaties. Reproachable conduct against one investor might

negatively impact the trust that other investors have in the political stability of the host state

and thus cause them to refrain from investing there. Equally, political pressure exercised by

other states might further incentivize host states to comply with promises they have made vis-

a-vis foreign investors.

28 Argentina-Austria BIT (1993); Argentina-Italy BIT (1990); Austria-Philippines BIT (2002).

29 United Kingdom-Uruguay BIT (1991) Article 8 (2) (ii), Belgium/Luxembourg- Uruguay BIT (1991) Article

11(3).30 Alan Schwartz and Robert E. Scott, Contract Theory and the Limits of Contract Law, 113 Yale L J 541, 556-62 (2003).


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CHAPTER 4: THE HISTORY OF DISPUTE

RESOLUTION METHODS

A major drawback in international investment law is, neither the courts of the host state nor

the courts of any third state are well-positioned to enforce the state's promises vis-A-vis

foreign investors, including those in investment treaties. The problem with most state courts

is that they are not-or at least they are not perceived to be-sufficiently neutral in resolving

disputes between foreign investors and host states. In many developing and transitioning

countries, independent courts that decide cases in accordance with pre-established rules of

law in a timely fashion are missing altogether. Corruption in the judiciary is a sad but daily business in the courts of many countries. 31 Additionally, lengthy and inefficient court

proceedings dragging on over years, if not decades, remain too commonplace. Under such

circumstances, it is difficult to argue convincingly that dispute resolution in many host states'

courts constitutes a way for investors to make a recalcitrant host state comply with its

investment-treaty commitments.

Similarly, the courts of third states are not better placed to offer effective dispute settlement

between investors and host states. The judiciary outside the host state is often equally

reluctant to subject sovereign nations to full-fledged judicial scrutiny and control. Various

legal obstacles-including state immunity and doctrines of judicial restraint such as the act-of-

state doctrine-constitute significant limits to the subjection of host states to third-country

jurisdiction.32 The investor's options for the enforcement of host-state promises are not any

better under the framework established by customary international law. Here, investors are

denied standing to initiate proceedings in international courts and tribunals. Instead, only the

home state of an investor is able to espouse its claim and exercise diplomatic protection.33

Significant drawbacks, however, vitiate the effectiveness of diplomatic protection in making

host states comply with promises given to foreign investors. First, the investor has no right

vis-à-vis its government to a grant of diplomatic protection, and the latter no duty to accord it.

Instead, states remain free to decline diplomatic protection. 34 Second, the home state

exercises exclusive control over the rights of its nationals on the international level and hence

31 Banco National de Cuba v Sabbaino, 376 US 398, 421 (1964)

32 M. Sornarajah, The Pursuit of Nafionalized Property 253-301 (Martinus Nijhoff 1986)33

Chittharanjan F. Amerasinghe, Diplomatic Protection,Oxford, 2008.34 Barcelona Traction, L'ght and Power Company, Ltd (Belgium v Spain), 1970 ICJ 3, 4.


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is entitled to settle, waive, or modify them by agreement with the host state. In practice, this

has led to the settlement of international claims concerning the violation of the rights of

foreigners by lumpsum agreements. 35 Third, under customary international law the

entitlement to receive compensation for the violation of international law protecting foreign

nationals is vested not in the alien but in his or her home state. Compensation received

therefore need not be paid to the investor by the home state espousing the claim.36 Finally,

diplomatic protection and interstate dispute settlement are subject to the requirement that

local remedies first be exhausted. While this affords the host state an opportunity to redress a

violation of a foreign investor's rights, it also hardly affords efficient dispute settlement

between investors and host states if the host state's courts are not impartial and independent

enough in addressing that state's opportunistic behavior. The foregoing factors thus illustrate

the insufficiency of diplomatic protection as a procedural means for efficiently enforcing

host-state promises vis- -vis foreign investors and for enabling host states to make fully

credible commitments.

Defenses of the legitimacy of international investment law and investment dispute resolution

have not, however, kept pace with the enormous development of this field of international

law and the accompanying critical attention it has received. Indeed, investment treaties have

proliferated to an unprecedented degree, having surged from less than 400 in 1989 to well

over 2,500 bilateral, regional, and sectoral treaties today. This rise of international investment

law and its dispute settlement mechanisms does not, however, take place in a void. It is a

consequence of equally unprecedented increases in transborder investment flows, a necessary

concomitant of the increasing globalization that has taken place since the end of the Cold

War.' It is this change in the world's social and economic environment that has created the

need for legal institutions that structure and stabilize foreign investment activities and help to

regulate conflicts that unavoidably arise out of increases in investment cooperation. Equally

unavoidably, the rise of investment treaties and investment-treaty arbitration has attracted

critical attention from the users of the dispute settlement mechanism (that is, investors and

host states) as well as various interest groups that claim to represent "civil society" and the

"public interest."

35

Rudolf Dolzer and Christoph Schreuer, Principles of International Investment law, Oxford UniversityPress,2008 at 1013. 36

Chittharanjan F. Amerasinghe, Local Remedies in International L aw 200-03 , Cambridge 2d ed 2004.


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CHAPTER 5: THE VARIOUS DISPUTE RESOLUTION

FORUMS

This approach advocates for increasing resort to so-called alternative dispute resolution

(ADR) methods and dispute prevention policies (DPPs), both of which have formed part of

UNCTAD‟s technical assistance and advisory services on IIAs. ADR can be either enshrined

in IIAs or implemented at the domestic level, without specific references in the IIA.

Compared to arbitration, non-binding ADR methods, such as conciliation and mediation,37

place less emphasis on legal rights and obligations. They involve a neutral third party whose

main objective is not the strict application of the law but finding a solution that would berecognized as fair by the disputing parties. ADR methods can help to save time and money,

find a mutually acceptable solution, prevent escalation of the dispute and preserve a workable

relationship between the disputing parties. However, there is no guarantee that an ADR

procedure will lead to resolution of the dispute; an unsuccessful procedure would simply

increase the costs involved. Also, depending on the nature of a State act challenged by an

investor (e.g., a law of general application), ADR may not always be acceptable to the

government.

ADR could go hand in hand with the strengthening of dispute prevention and management

policies at the national level. Such policies aim to create effective channels of communication

and improve institutional arrangements between investors and respective agencies (for

example, investment aftercare policies) and between different ministries dealing with

investment-related issues. An investment ombudsman office, or a specifically assigned

agency that takes the lead should a conflict with an investor arise, can help resolve

investment disputes early on, as well as assess the prospects of, and, if necessary, prepare forinternational arbitration.18

In terms of implementation, this approach is relatively straightforward, and much has already

been done by some countries. Importantly, given that most ADR and DPP efforts are

implemented at the national level, individual countries can proceed without the need for their

treaty partners to agree. However, ADR and DPPs do not solve key ISDS-related challenges.

The most they can do is to reduce the number of fully-fledged legal disputes, which would

37 UNCTAD, Investor-State Disputes: Prevention and Alternatives to Arbitration (United Nations, New York

and Geneva, 2010.


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render this reform path a complementary rather than standalone avenue for ISDS reform. In

many cases foreign investors have used ISDS claims to challenge measures adopted by States

in the public interest (for example, policies to promote social equity, foster environmental

protection or protect public health). Questions have been raised whether three individuals,

appointed on an ad hoc basis, can be seen by the public at large as having sufficient

legitimacy to assess the validity of States‟ acts, particularly if the dispute involves sensitive

public policy issues. In addition, even though the transparency of the system has improved

since the early 2000s, 38 ISDS proceedings can still be kept fully confidential – if both

disputing parties so wish – even in cases where the dispute involves matters of public interest.

Arbitral decisions: problems of consistency and erroneous decisions. Those arbitral decisions

that have entered into the public domain have exposed recurring episodes of inconsistent

findings. These have included divergent legal interpretations of identical or similar treaty

provisions as well as differences in the assessment of the merits of cases involving the same

facts. Inconsistent interpretations have led to uncertainty about the meaning of key treaty

obligations and lack of predictability of how they will be applied in future cases. Erroneous

decisions are another concern: arbitrators decide important questions of law without a

possibility of effective review. Existing review mechanisms, namely the ICSID annulment

process or national-court review at the seat of arbitration (for non-ICSID cases), operate

within narrow jurisdictional limits. It is noteworthy that an ICSID annulment committee may

find itself unable to annul or correct an award, even after having identified “manifest errors of

law”.39 Furthermore, given that annulment committees – like arbitral tribunals – are created

on an ad hoc. basis for the purpose of a single dispute, they may also arrive (and have

arrived) at inconsistent conclusions, thus further undermining predictability of international

investment law.

Arbitrators: Concerns about party appointments and undue incentives Arbitrators’

independence and impartiality.

An increasing number of challenges to arbitrators may indicate that disputing parties perceive

them as biased or predisposed. Particular concerns have arisen from a perceived tendency of

each disputing party to appoint individuals sympathetic to their case. Arbitrators‟ interest in

being re-appointed in future cases and their frequent “changing of hats” (serving as

arbitrators in some cases and counsel in others) amplify these concerns. Cost- and time-

38

ICSID Arbitration Rules, 2006 Amendment.39 CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8, Decision of the

ad hoc Committee on the application for annulment, 25 September 2007, paras. 97, 127, 136, 150, 157-159.


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intensity of arbitrations. Actual ISDS practice has put into doubt the oft-quoted notion that

arbitration represents a speedy and low-cost method of dispute resolution. On average, costs,

including legal fees (which on average amount to approximately 82% of total costs) and

tribunal expenses, have exceeded $8 million per party per case. For any country, but

especially for poorer ones, this is a significant burden on public finances. Even if the

government wins the case, tribunals have mostly refrained from ordering the claimant

investor to pay the respondent‟s costs. At the same time, high costs are also a concern for

investors, especially those with limited resources. The fact that many legal issues remain

unsettled contributes to the need to invest extensive resources to develop a legal position by

closely studying numerous previous arbitral awards. Some of the same reasons are also

responsible for the long duration of arbitrations, most of which take several years to

conclude.

International Investment Arbitration has drawn the ire of the developing countries as it is seen

as one sided and favouring the investors. Interpretation of contracts by arbitral tribunals vary,

but the assumption of developing countries is that tribunals look only into the business aspect

of contracts and seldom look into overall picture for which the BIT was signed. This pushes

countries to prefer local jurisdiction over international investment arbitration.

Countries that plunge into economic crises get affected the most. A few examples are

Argentina, Indonesia and Venezuela.

A. Case Study - Argentina40

More than 30 cases of the cases presently pending before ICSID have been brought against

the Republic of Argentina and assert that the Argentine Government's response to the

catastrophic financial crisis that hit the country in late 2001 and 2002 impaired investor rights

secured under several of Argentina's BITs/IIAs. These cases are of extraordinary importance,

not just because of the immense financial liability to which they expose Argentina, but also because, in response, Argentina has invoked a broad set of legal arguments about the rights of

states to craft policy responses to extraordinary situations such as a massive financial

collapse.

It all started in the last weeks of 2001 when Argentina experienced a financial collapse of

magnum proportions. In one day alone, the peso lost 40% of its value. In response to the

crisis, which some likened to the Great Depression of the 1930s in the United States,

40 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment law, Oxford University

Press,2008 at 1013.


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From the case studies stated above, a reasonable amount of apprehension and caution must be

applied as conflicting decisions have arisen from the tribunals in these cases and establish no

precedent and hence there is no stability or certainty that could comfort developing and

emerging economies that could face a catastrophic crisis.

Companies have certain options that countries are not endowed with, which in turn permit

companies to excuse themselves for dishonouring contracts. An option for a company that

goes through bankruptcy can end up with rescheduled or even discharged debt, renegotiated

union contracts and relief from contractual pension obligations. Surely, it is not surprising

that a backlash occurs when a host country fails to receive similar relief from obligations to

direct investors when it faces severe economic problems.

Further, States have increasingly relied on customary public international law as a defence toexcuse investment treaty breached. Argentina, in particular, has recently invoked the doctrine

of necessity to excuse any breaches of its investment treaty obligations in the numerous

disputes that arose from the economic crisis of 1999-2002. Such public international law

defences, collectively called state defences, excuse a state's actions if specific preconditions

are met. These include force majeure, necessity, bribery or international public policy,

legitimate exercise of sovereignty, including other several defences based on customary

public international law. Though these defences can be invoked even in the absence of a

specific provision in an investment treaty, they are subject to strict limitations. Only a limited

number of investment arbitration tribunals have accepted state defences.41

Moreover, it needs to be pointed out that even when these defences are successful; their effect

is often merely to suspend the state's obligation for a short period of time. In practice, that

means that the state defence will only reduce the amount of compensation payable and the

state will not be fully excused for its behaviour. Thus, state defences are not an easy way for

a state to escape its international responsibility. Even the defense of "legitimate use of

sovereign power" has not yet been established in the realm of investment arbitration - only

three tribunals have relied on this defence to date. However, the trend is beginning to look as

if the tribunals are now more willing to consider the specific circumstances faced by states

and less perceptive to the plight of investors. This is arguably a symptom of the backlash

against investment arbitration.

Venezuela has settled four of the six cases already concluded before ICSID. The only two

41 Dr. Stephan W. Schill,. The Fair and Equitable Treatment Standard in the International Law of Foreign Investment. Oxford: Oxford University Press, (2008).


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cases that have reached an arbitral award did not involve large amounts. Recently, Venezuela

has taken some measures that are unfriendly towards ICSID arbitration, directly targeted to

potential claims that may arise out of the recent expropriations and nationalizations. Aside

from the hostile political discourse against ICSID, the two most important "anti-arbitration"

steps taken by the government are the denunciation of the Venezuela-Netherlands BIT, and

the Supreme Tribunal's Decision number 1541 of October 17, 2008. Yet, it remains to be

seen what will be the effects of these "anti- arbitration" measures in the other four cases

against Venezuela currently outstanding before ICSID, and in any other potential claim that

may be filed in the near future.42

Moreover, investor-state arbitration has been infamous for attracting calumny regarding

arbitrators' integrity. Arbitrators tend to favour the claimant- investor in order to increase

prospects of reappointment. ICSID arbitrations receive most of the slander in this regard.

This perceived apprehension on behalf of the host state, on the bias of the arbitrators, also

makes Investment arbitration an unfavourable option. These contentions and perceived bias

apprehensions have been also offset by the number of decisions of tribunals that have been in

favour of the host states

INTERNATIONAL INVESTMENT COURT

There is also a case for an international investment court. One of the chief proponents of this

argument is Gus van Harten. This argument is presented relative to existing arrangements that

use a treaty-based arbitration mechanism to resolve disputes between states and investors.

This argument presents a narrow central distinction between judges and arbitrators: the secure

tenure of the former and the insecure tenure (case- by-case appointment) of the latter. This

orientation of the argument leads by implication to the assertion that there is something

wanting in terms of the independence and impartiality of arbitrators in the existing

arrangements based on investment treaty arbitration. Given this, the present case is meant to

respond to a critical flaw in an existing arrangement for international adjudication by

elaborating upon an alternative.

It should be made clear from the outset that apparent bias in investment treaty arbitration is

just that: it is a reasonable suspicion of bias (not actual bias) arising from structural failings of

arbitration when used to determine matters of public law. The critique of investment treaty

arbitration should thus not be taken as a condemnation of anyone involved in investment

42 Ignacio A. Vincentelli, The Uncertain Future of ICSID in Latin America , 16(3) LAW & BUS. REV. AM. 409

(2010).


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arbitration; there are many jurists, lawyers, academics, and business people of skill and

integrity who sit as arbitrators and whose reputation is not sullied by an objective critique of

the structure of the system and, in particular, its lack of objective guarantees of independence

and impartiality. The difficulty is that the current structure of investment treaty arbitration

casts a pall over all awards, and all legal interpretations, that emerge from the system in spite

of the experience, qualifications, integrity, etc. of the arbitrators, for reasons quite unique to

this system and not to others where arbitration is used.

There is a possibility of other alternatives that could be better at providing impartial and

independent awards. This system could also take into account various stakeholders including

countries, governments, investors, and even other systems that rely properly on arbitration to

resolve disputes, especially commercial arbitration. The clearest alternative to the present

arrangement is to establish an international investment court.

One of the prime bases of this argument is that International Investment Law is a subject

matter of Public International Law and hence investment treaty arbitration is a form of public

law adjudication in which the meaning of public law is resolved finally by adjudication.

Second, for this reason, it should be evaluated according to standards that apply historically

in public law. Third, the current system's failure to satisfy these standards, especially security

of tenure, calls for an institutional arrangement that does satisfy them. Lastly, various

counter-arguments that have been offered or that might be offered in opposition to an

international investment court, founded on the principle of security of tenure in public law

adjudication, do not warrant maintaining investment treaty arbitration as an alternative to

such a court. For this reason, States should be encouraged to establish an international

investment court in accordance with well-known principles of judicial decision- making in

public law.

The argument remains grounded in the theoretical distinction between the use of arbitration

to resolve regulatory disputes and its use to resolve commercial or other private disputes.

There are powerful criticisms of public-private distinctions from various perspectives and

elucidate specific differences in casting the major types of adjudication, while acknowledging

the possibility that the distinction may leave gray areas or be simply inappropriate in some

circumstances. The public- private distinction rests in turn on a concept of the state as

sovereign.

The concept of state as sovereign has received some stick in the recent past. For purposes of a

public adjudication system, the reference to sovereignty is as an instrument for identifying


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and analysing certain activities of states as activities that states alone are able to engage in;

for example, the passage of general rules accepted as binding in society and ultimately

enforceable by the state's coercive power. Recognising this uniqueness of the state as

sovereign, arising from its role as the representative of a political group associated with a

particular territory, is useful in that it helps to reveal the distinctiveness of the relationship

between the state and those who are subjected to or affected by regulatory activity of the

state. As a concept, sovereignty is a means of social ordering that is important (though of

course not beyond challenge or doubt) and that has sufficient probative value here, it is

suggested, to enable an elaboration of the sorts of disputes that arise between investors and

states and how those disputes differ from disputes arising between parties that are equally

capable of possessing legal rights and obligations.

An important aspect of disputes arising between a sovereign state and a foreign investor is

that they are one-sided in that the powers and obligations of the entity on one side, the state,

has a different set of powers and obligations in law than the entity on the other side, the

investor. In some respects, the state will possess rights that private parties cannot hold such

that the state will have powers that are specifically sovereign. In other respects, the state may

be bound by sovereign obligations that a private party cannot possess or that a private party is

in a unique position legally to avoid or abbreviate (by for example declaring bankruptcy).

Where a dispute between a state and a private party occurs in relation to the state's exercise of

these uniquely sovereign powers or its assumption of uniquely sovereign obligations, the

dispute is described here as a 'regulatory dispute' and the adjudication of that dispute as a

form of 'public law adjudication'.

Thus, for present purposes, the public-private distinction entails recognition of the state as an

entity with unique characteristics and of this concept of the state as the basis for public law as

a category of study, enabling (even if roughly or with doubt) a distinction between instances

in which adjudication is used to resolve regulatory disputes and instance in which it is used to

resolve disputes originating in a reciprocal relationship between juridical equals.

EXHAUSTION OF LOCAL R EMEDIES AND INVESTMENT TREATIES

The rule of exhaustion of local remedies requires that the foreign investor exhaust all local

remedies (i.e. remedies under the law of the host state), unless they are illusory, before

resorting to remedies under international law such as diplomatic protection, etc. It is


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recognised as a principle of customary international law.43 It may, however, be waived by

treaty. Article 26 of the ICSID Convention excludes the applicability of the rule where there

is an agreement to submit the dispute to arbitration by ICSID. For the exclusion of the local

remedies rule, an arbitration agreement between the host state and the foreign investor is

necessary. Conversely, where there is no arbitration agreement, the foreign investor is

expected to pursue local remedies. Where an express waiver of the need to exhaust local

remedies is given in a bilateral or multilateral treaty before the dispute arises it is normally

irrevocable, although it may be revoked by the agreement of the parties or with the consent of

the State of the alien affected. In the case of the ICSID Convention, the express terms of the

waiver permit revocation by unilateral act of the respondent or host State at any time before it

submits to arbitration under the Convention, which has to be done by a separate act of

consent in writing and with the agreement of the other party, after it has become a party to the

Convention. Thus, while agreement to arbitrate raises a presumption that there has been an

express waiver of the rule of local remedies, that presumption is refutable by a unilateral act

by the host or respondent State, or by agreement between the alien and the State who are

parties to the dispute, provided the revocation is done before or at the time that the consent to

arbitration is given by the host or respondent State.44

UNILATERAL PROMISE TO ARBITRATE

States make several unilateral promises in the hope of attracting foreign investment. They

may promise, for example, not to expropriate foreign investment except on payment of full

compensation and to submit all disputes to ICSID for arbitration. The most widely accepted

view is that these unilateral promises are of little validity as the giver can always revoke

them. The doctrine of estoppel could be argued to hold the state up to its promise. However,

few legal systems restrain a sovereign through such a doctrine and estoppel generally does

not prevent a state from violating its promises in the municipal sphere. There is certainly no

such doctrine in international law. At best, one could regard a unilateral promise to settle

disputes by arbitration as an invitation to treat rather than as an agreement to arbitrate, for no

definite party was in contemplation at the time the unilateral promise was made. In the

alternative, it must be regarded as an announcement of state policy to the effect that it would

favour submitting disputes arising out of foreign investment contracts to ICSID for

arbitration. No legal significance can be attached to these statements unless further steps are

43 Norwegian Loans Case. [1957] ICJ Rep. 9

44 S. Schwebel & G. Wetter, "Arbitration and Exhaustion of Local Remedies", 60 AJIL 484 (1966).


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taken to convert them into a legally significant form. The award in SPP v. Egypt 45does not

appear to have taken these considerations seriously. In that case the issue was whether Article

8 of the Egyptian Law on Foreign Investment, 1974, which contained a unilateral promise to

all foreign investors to submit disputes to ICSID arbitration, created jurisdiction in an ICSID

tribunal in respect of an agreement made after that law had been enacted. The ICSID tribunal

inferred jurisdiction from this unilateral promise. There has been no exhaustive consideration

of the possible arguments against such a position, such as the effect of the local remedies rule

on a unilateral promise.46

In addition, the legitimacy of investment-dispute arbitration rests, to a large extent, on the

fact that the parties to the proceedings can participate in the appointment of the arbitrators.

This ensures that the decision-making process is not perceived as something wholly

extraneous to the parties, but instead as a legitimate mode of resolving disputes. Participation

in the appointment of those who decide disputes is particularly important when states are

involved in international dispute settlement. Thus, even when submitting a dispute to the ICJ,

states that do not have one of their nationals as a titular judge of the court are entitled to

appoint a judge ad hoc in order to be represented among the decision makers. Furthermore,

the possibility of appointing decision makers in investment treaty arbitrations by no means

favors the interests of investors over the interests of states. Instead, it ensures that states have,

by means of appointing an arbitrator, a certain degree of control over the future direction of

investment arbitration. They can thereby react to jurisprudential developments of which they

disapprove by appointing individuals who support a line of thinking and reasoning that is

aligned with the understanding states have of the way investment treaties should be applied

and interpreted. The possibility of influencing the appointment of arbitrators on an ad hoc

basis is all the more important for states as it is one of the few ways in which they can

influence the direction of investment jurisprudence after an investment treaty has been

signed.

45

SPP v. Egypt (Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt), 32 ILM 933(1993), corrected at 32 ILM 1470 (1993); 19 Yearbook of Commercial Arbitration 51 (1994).46 Martin Domke, „The Settlement of International Investment Di sputes’ , Chicago Business Lawyer, 276 (1957).


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CONCLUSION

Investment arbitration seemed to be the answer to protect capital and also to provide the

much need control that host countries needed over the capital. Investment arbitration

appeared to fill the gap in the Barcelona Traction case. In that case, the ICJ held that a State

could make a claim when investment by its nationals abroad were prejudicially affected in

violation of the right of the State itself to have nationals enjoy certain standards of treatment

previously agreed in a treaty or special agreement ("diplomatic protection"). Yet, the

common situation when no such treaty or special agreement existed, thereby covering the

particular conflict, was that investors would be left unprotected. Though conventions like

ICSID try fill the lacunae left by the Barcelona Traction case, they are incomplete Investment

arbitrations appear to work well when the economy is growing, domestic institutions at host

countries are transparent and corruption free and there is political will to honour international

commitments. But when there is deficit in any of the conditions prescribed above,

investment arbitration fails. . The "internationalisation" of foreign investment contracts has

made the law of the host state largely irrelevant to such contracts. This trend originated in the

mistaken assumption of early arbitrators that developing country host states did not possess

sufficiently sophisticated indigenous legal systems to deal with the complex issues arising out

of foreign investment contracts. Although that assumption is clearly no longer warranted

today given that most states have "modern" laws on issues relating to foreign investment,

the "internationalisation" of foreign investment contracts is treated as having crystallised

into a norm of international law. The "general" principles of international law that arbitrators

pull out of a hat to suit the needs of foreign investors, therefore turn out to be proxies for

concepts derived from the legal systems of developed countries. Furthermore, host states are

increasingly being dragged into arbitrations that they never consented to as a result of the

tendency of arbitrators to infer jurisdiction from general provisions in unilateral undertakings

given by states or in bilateral investment treaties.

The alternatives to investment arbitration like Multilateral Investment Treaties and

International Investment Court seem farfetched at this point, but not entirely impossible.

Though there are various grievances within the present system of investment arbitration, this

system is there to stay in the light of lack of alternatives. If the current system is tweaked a

little, with a wholesome approach, taking all stakeholders into account, the system is there to

say for some time.


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