Search Results

This chapter presents a brief description of the achievements of Christoph Schreuer, from his excellence as a law student at Cambridge to his teaching career. His best known work is Hersch Lauterpacht Memorial Lectures of 1992 on State Immunity and, more recently, his massive commentary on the ICSID Convention. His status as an international lawyer is now recognized by his holding the Chair of International Law at Vienna and by his membership of the Austrian National Group in the Permanent Court of Arbitration.

This chapter presents a brief tribute to Christoph Schreuer as a distinguished scholar and personal friend. The chapter details a close friendship with Schreuer dating back to the 1980s, when together with Waldemar Hummer, the first version of the Austrian Handbook of International Law in 1983 was edited. The chapter says that Schreuer is not only an outstanding expert on international law but has acquired a remarkable Allgemeinbildung, which the translation ‘general knowledge’ does not adequately express; at the same time, he is a gentleman, the chapter states, a type of person for which no adequate German word exists.

This chapter explores whether and to what extent a measure adopted by the State in the furtherance of international obligations other than those provided for in the investment treaty bears any consequences not only in the appreciation of state liability, but also in the determination of the quantum of compensation and in the choice of the method of valuation. The review of ICSID jurisprudence shows considerable shifts in the appreciation of this issue. The chapter consider several cases: Compañia del Desarollo de Santa Elena SA v. Republic of Costa Rica; Siemens v. Argentina; and SPP v. Egypt. The SPP v. Egypt case sets a useful precedent in that it clearly shows how international obligations arising under different areas of international law can be specifically relevant not only in the appreciation of the legal nature of the taking but also in the choice of the method of valuation affecting the quantum of compensation.

ICSID prescribes that the ICSID arbitrator must ‘be relied upon to exercise independent judgment’. This chapter begins by comparing this requirement with the formulation found in other arbitral rules and various national laws. It then considers the decisions in both ICSID and other arbitrations concerning challenges, based on (i) the relationship between an arbitrator and a party; (ii) the relationship between an arbitrator and a counsel; and (iii) issue and subject matter conflict. The chapter concludes by recommending that the legal test and procedure for determining arbitrator challenges in ICSID proceedings should be changed.

This chapter provides an overview of recent ICSID decisions on provisional measures in an attempt to identify the common approaches adopted by arbitral tribunals in directing or recommending parties to maintain a certain conduct pending resolution of a dispute. The practice of ICSID tribunals shows that provisional measures are disposed of with reasonable speed. Depending on the circumstances, the delays range on average from a minimum of one month to a maximum of one year between the time a request is introduced and when an order is issued by a tribunal. From what can be ascertained from the cases decided to date, where tribunals' decisions relating to provisional measures have been made public, parties usually exchange written submissions and it is not uncommon for tribunals to convene brief oral hearings or hold conference calls specifically devoted to requests for provisional measures.

This chapter examines ICSID annulment decisions after 2002 along the lines of the ‘three generation’ classification, Professor Schreuer's examination scheme, and the organization of claims. The analysis of recent ICSID annulment decisions has shown that the majority of them can be classified as appertaining to Professor Schreuer's ‘third generation’ of ICSID annulment proceedings. Explicitly or implicitly referring to this concept, they have shown a very cautious approach. They have made it repeatedly clear that annulment must be distinguished from appeal and that an ad hoc committee may not analyse the merits of the case or substitute its own determination for that of the tribunal.

This chapter examines the relationship between the concerns raised about the quality and consistency of ICSID awards, on the one hand, and, on the other, the existence and efficiency of any respective remedy. It begins with a review of the four generations of annulment proceedings followed by a review of ICSID arbitral awards. It then considers the use of precedent in ICSID arbitration, ICSID control over quality and consistency of arbitral awards, and remedies for consistency and legitimacy lacunae inherent in Article 52.

The legal academy is coming to embrace the opposite position of indeterminacy, not only as a matter of practical reality and ensuing theoretical introspection, but as more intuitive and plausible to begin with. In search of a single easy case to refute its claim, the modern critical position holds that the law governing every case can be construed bona fide and lege artis to irreconcilable ends. Its sophisticated form carefully rejects ‘anything goes’, emphasizing that infinite legal interpretations are flawed. Nonetheless, it contends that in each case, there remain at least two methodologically sound solutions, which conflict in result. This chapter advances the claim of legal indeterminacy, but in technical detail. It considers the interplay of Articles 71 and 72 of the ICSID Convention, which expressly govern denunciation, and Article 25, which governs submission to jurisdiction.

This chapter begins by describing the regimes set forth for the enforcement of awards under the ICSID Convention and under the New York Convention. Though the routes each prescribes are different, each refers the prevailing party in a dispute to the municipal legal system(s) of State parties to the treaties in the event of a losing party's refusal to pay an award. Successful investors in investment arbitrations governed by either regime can thus run into difficulties in attempts to recover assets that are protected by municipal laws on sovereign immunity with respect to execution. The chapter illustrates the pitfalls investors can face both because of the protections States enjoy due to State immunity and the complexity of the interaction between the New York Convention and municipal State immunity laws. It serves to demonstrate Professor Schreuer's prescience with respect to the perennially intractable nature of State immunity with respect to enforcement.

This chapter discusses Articles 53 and 54 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Article 53's obligation to abide by and comply with an award is independent of the enforcement mechanisms provided for in Article 54. States cannot require that investors holding an award against the respondent State submit themselves to the procedures of Article 54 before an obligation to honour the award under Article 53 can arise. To allow this would be inconsistent with both the text and the drafting history of the ICSID Convention, would run counter to the practice of the vast majority of contracting States and the conclusions of ICSID tribunals, and would undermine the very foundation of the ICSID system.

This chapter examines the alleged requirement to resort to local remedies before a violation of a substantive standard of international investment law can be diagnosed, despite a waiver of the requirement to exhaust local remedies as, for example, contained in Article 26 ICSID. It begins by briefly outlining the function of the local remedies rule in international law and the waiver contained in Article 26 of the ICSID Convention. It then considers the related practice of arbitral tribunals. Finally, it discusses considerations of principle which the cases canvass as well as a number of related questions will be discussed.

This chapter has two main objectives. The first is to provide an overview of the evolution of Canada's approach to investment protection, with particular focus on dispute settlement. The second objective is to identify the essential elements that now underpin Canada's approach to investment protection. It argues that principles central to the Canadian legal system, such as procedural fairness and due process, are now incorporated as quasi sine qua nons in Canada's approach to investment protection. These principles are consonant with the ICSID Convention's objectives to settle investment disputes in an orderly manner and to protect, to the same extent and with the same vigour, the investor and the host State in the general interest of development.

The guarantee of the protection of property, contained in Article 1 of Additional Protocol No. 1, has become — after Article 6 ECHR — the second most frequently invoked guarantee of the Convention. This chapter first begins by presenting the jurisprudence describing the Convention notion of protection of property generally. It then discusses illustrative case law concerning the concept of ‘legitimate expectations’, social security claims, and the way some well-known recent judgments approach the interpretation of Article 1 of Protocol No. 1. It selects four categories of very recent cases and discusses them. The discussion demonstrates that the Strasbourg Court has encountered exaggerated formalism, chicanery, tricks, or plainly arbitrary acts by State authorities.

This chapter reviews the evolution of the intersection between procedure and substance from a contemporary perspective. For a long time, it was widely considered that the position expressed by the Permanent Court of International Justice (PCIJ) that ‘any contract which is not a contract between States in their capacity as subjects of international law is based on municipal law of some country’ might exclude the application of international law. The modern understanding accepts that the law of the host State will apply. It can today be added, however, that international law operates as a framework which domestic law must respect. The convergence of the parallel developments underlining the need for and acceptance of rules of international law has led to a renewed consensus.

The spate of recent investment arbitration cases against repeat-respondent States, as well as the increasingly strident legal and political pushback these cases have begun to engender, call into question in various ways whether ICSID arbitration will continue to be a useful and legitimate forum for resolving international disputes. This chapter evaluates the continued viability of ICSID arbitration in light of these developments. Section A describes the relative legal finality and binding nature of ICSID awards as compared to other forms of adjudicating international disputes and observes that an individual ICSID award entails one of the legally most final and binding dispositions in international law, subject only to a few narrow ‘remedies’ against an award (the most notable being annulment). Section B describes that there is no formal general doctrine of binding precedent or stare decisis in ICSID arbitration and thus how an ICSID award, final and binding though it may be for an individual case, does not bind subsequent tribunals faced with the same or similar issues. Finally, it discusses the recent decision by the ad hoc (annulment) committee in CMS Gas Transmission Co v Argentine Republic, which shows that the ICSID system not only maintains the finality of individual awards, but also provides an opportunity for such a committee at least to comment on the reviewed tribunal's application of the law in a particular case and thus contribute to the corpus of international investment law.

This chapter looks at the immediate origins of the ICSID Convention, in the years 1955 to 1962. It discusses the proposed multilateral approaches to the promotion of private foreign investment, the World Bank's consideration of proposals, the role of ‘Black's Bank’ in the settlement of investment disputes, and the Bank begins to work on the initiative.

This chapter provides a detailed, stage-by-stage narrative of the drawing up of the text of the Convention between 1962 and 1965. For their work on what became the ICSID Convention, the Executive Directors convened a committee of the whole comprising all of the Executive Directors. Called the Committee of the Whole on the Settlement of Investment Disputes, it held six initial meetings during the period from December 1962 to June 1963. In these meetings, the Executive Directors discussed the Working Paper in the form of a Draft Convention for the Resolution of Disputes between States and Nationals of Other States. Broches had submitted this Working Paper to the Executive Directors in June 1962. The chapter examines the Working Paper and the discussions of it in the Committee of the Whole.

This chapter provides a detailed, stage-by-stage narrative of the drawing up of the text of the Convention between 1962 and 1965. It describes the Preliminary Draft, focusing on the main differences between it and the Working Paper. It also reviews the sources or antecedents for the Preliminary Draft (and the Working Paper before it). The chapter then turns to the discussions at the regional consultative meetings.

This chapter provides a detailed, stage-by-stage narrative of the drawing up of the text of the Convention between 1962 and 1965. The day after the adoption of the resolution, the President of the Bank addressed a letter to all member countries notifying them, as planned, that they could each designate a representative to serve on the committee of legal experts which would commence its work the next month. Enclosed with the President's letter was a first Draft Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the First Draft). It was to serve as a working paper for the meetings of the committee. The chapter describes the First Draft, the meetings of the committee of legal experts and the concluding steps in the formulation of the Convention.