Originally from World Arbitration And Mediation Review (WAMR)

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ARBITRATING INVESTMENT DISPUTES:

ISSUES OF JURISDICTION
Francisco Orrego Vicuña*

I. INTRODUCTION
Investment arbitration has become one of the central features of
contemporary legal practice for counsel, government officials and
arbitrators. It has also meant the development of specialized institutions,
such as ICSID, or the growing utilization for the settlement of investment
disputes of other arbitration institutions, such as the LCIA, the ICC and the
Stockholm Centre, just as it has meant an increasing utilization of
UNCITRAL rules in this context.
This contribution has been organized not so much on the procedural
aspects of such arbitration, which are in many respects similar to those of
any other arbitration and are very competently explained in other sections of
this issue It will rather look at a number of issues concerning jurisdiction
which need to be considered by counsel in respect of many disputes that are
likely to end in some form of international arbitration or indeed at the time
they are brought to arbitration.
II. A SHARED PRIVILEGE
It is many times thought that arbitrating investment disputes is the
privilege of capital exporting countries, particularly in connection with
investment in Eastern Europe or the developing world. This view,
however, sometimes overlooks the fact that developing countries,
including to this effect China, have not only signed numerous bilateral
investment treaties but have done so both with developed countries and
among themselves. Not few arbitration proceedings have been initiated by
companies and individuals from developing countries against other
developing countries, as well as against developed countries. Bilateral
investment treaties, on the other hand, are just a part of the broad legal
framework governing investments, which is also supplemented by various
multilateral treaties dealing wholly or in part with investments and
sometimes having only developing countries as parties to them, as is the