Blowing Hot and Cold: State Commitments to Arbitrate Investment Disputes - WAMR 2015 Vol. 9, No. 2
Author(s):
Timothy G. Nelson
Page Count:
44 pages
Media Description:
1 PDF Download
Published:
July, 2015
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Originally From World Arbitration and Mediation Review (WAMR)
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I. INTRODUCTION
Lord McNair, the British jurist and ICJ judge, famously opined
that it was “reasonable” to expect international parties to live by
the maxim allegans contraria non est audiendus, or “You cannot
blow hot and cold.”1 International law, he wrote in 1961, was
“develop[ing]” this principle, akin to “estoppel” as understood in
English law. Barely a year after those words were published, the
ICJ decided the Temple of Preah Vihear case, holding that Thailand
was bound to accept a boundary line drawn in 1907, to which it
had failed to object over many years.2 That case has been said to
evidence a principle of “estoppel” in international law.3
Lord McNair’s phrase captures the indignation that parties
typically feel when faced with inconsistent or inequitable conduct.
One such context involves arbitral jurisdiction; in particular,
whether a state, or indeed a private party, may be permitted to
resile from previous commitments to resolve investment disputes
in a given arbitral forum. This article explores a number of
decisions where parties have appeared to blow “hot and cold”
with respect to arbitration commitments, and the role “estoppel”
and related concepts have played in those cases.
II. “ESTOPPEL” AND INCONSISTENT STATE ACTIVITY: BACKGROUND
A. Estoppel and Related Doctrines
“Estoppel” is a term familiar to those in the common law
system: it potentially operates to preclude a party from adopting
inconsistent positions, particularly if the opposing party has
relied upon such positions and would suffer prejudice if they
were to change.4 Doctrinally, it is sometimes associated with the
maxim venire contra factum proprium (“no one may set himself in
contradiction to his own previous conduct”) as well as the general
principles of good faith and pacta sunt servanda.5 One
commentator has said that these concepts are often “pled
interchangeably” to “maximize . . . impact” in any particular case.6
interchangeably” to “maximize . . . impact” in any particular case.6