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Chapter 39 - Investor-State Arbitration (The Washington Convention) - International Arbitration Law And Practice, Third Edition

Author(s): 
Mauro Rubino-Sammartano
Page Count: 
78 pages
Media Description: 
1 PDF Download
Published: 
January, 2014
Practice Areas: 
Investment Disputes,
Washington Convention
Tags: 
Non-Discrimination,
Most Favored Nation Treatment,
Expropriation,
Umbrella Clause,
No Less Favorable Treatment
Author Detail: 

Mauro Rubino-Sammartano is a Partner at LawFed-BRSA.  Mr. Rubino-Sammartano is currently the President of the European Court of Arbitration and of the Mediation Centre of Europe, the Mediterranean and Middle East. He is also an associate member, as Italian advocate of Littleton Chambers in London. Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. His practice is largely based on international and national litigation and arbitration in the field of contracts, construction law, mergers and acquisitions, sales of goods, joint ventures and interlocutory injunctions.

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Description: 

Originally from International Arbitration Law and Practice, Third Edition

I. INTRODUCTION 

INVESTMENT ARBITRATION DISTINGUISHED FROM COMMERCIAL ARBITRATION

39.1. Difference between Investment and Commercial Arbitration

The main difference between investment and commercial arbitration lies in the source of the arbitral tribunal’s authority. While in commercial arbitration the source of the arbitrator’s authority is the consent of the parties, in investment arbitration that authority derives from an international treaty between the investing state and the investor’s state (an authority which must be confirmed − in relation to each dispute − by the investing state and which requires the adhesion of the private investor).1 A dispute then between a State and a private investor is regulated by a treaty that binds two States. Investment arbitration leads to many problems, some of which are the same in commercial arbitration and others that differ from commercial arbitration, such as the two stage consent that is required and the problem related to the relationship between treaty claims and contract claims.

There is a very large body of literature devoted to the analysis of investment arbitration.2

Table of Contents: 

CHAPTER 39: INVESTOR STATE ARBITRATION 
(THE WASHINGTON CONVENTION)

I. INTRODUCTION
Investment Arbitration Distinguished from Commercial Arbitration
39.1 Difference between Investment and Commercial Arbitration
39.2 Mutual Advantages and Justified Concerns
39.3 A Variety of Barriers
39.4 Previous Formulae
39.5 Earlier Investment Conventions
39.6 Modern Foreign Investment Law
39.7 The Role of Investment Arbitration
ICSID Arbitration
II. ICSID ARBITRATION
Procedural Law
II.1 PROCEDURAL LAW
Applicable Law
39.8 Disputes Governed Only by the Domestic Investment Law of the Host State
39.9 Disputes under a BIT
39.10 ICSID Arbitration
The ICSID Additional Facility Rules
39.11 The ICSID Additional Facility Rules
Consent
39.12 Consent to Arbitration
Notion of Investment
39.13 The Notion of Investment
Nationality of the Investor
39.14 Nationality of the Investor
39.15 Shareholders behind the Investment Vehicle
39.16 Previous Exhaustion of Local Remedies
39.17 Alternative or Exclusive Fora
The Fork in the Road
39.18 The Fork in the Road
39.19 The Waiver
Treaty Claims and Contract Claims
39.20 Treaty Claims and Contract Claims
39.21 Consolidation of Proceedings
39.22 Interim Measures
Procedural Rules
39.23 Procedural Rules and Evidence
Substantive Law
II.2 SUBSTANTIVE LAW
39.24 Disputes under a BIT
39.25 Contract Terms and Rules of Law
39.26 The Investment Treaty
39.27 The Law of the Host State
39.28 Public International Law
39.29 The Relationships between Host State Law and Public International Law
Foreign Investor’s Substantive Rights
II.3 FOREIGN INVESTOR’S SUBSTANTIVE RIGHTS
No Discrimination
39.30 No Discrimination
39.31 National Treatment
No Less Favourable Treatment
39.32 No Less Favourable Treatment
39.33 Discriminatory Intent
Most Favoured Nation
39.34 Most Favoured Nation
39.35 Substantive and Procedural Rights
39.36 Arbitrary or Discriminatory Measures
Protection against Expropriation
39.37 Protection against Expropriation
39.38 Indirect Expropriations
39.39 Breach by the Host State of Its Representations
39.40 Effects of the Duration of the Measure
39.41 Transfer of the Property
Fair and Equitable Treatment
39.42 Fair and Equitable Treatment
39.43 Protection and Security
Umbrella Clauses
39.44 Umbrella Clauses
Available Remedies
II.4 AVAILABLE REMEDIES
Setting Aside Proceedings
II.5 SETTING ASIDE PROCEEDINGS
39.45 Setting Aside of Investment Awards
39.46 ICSID Awards
39.47 Other Investment Awards
39.48 Substantial Non Compliance with Rules of Procedure – Excess of Authority
39.49 Public Policy
Errors of Law and Errors of Fact
39.50 Errors of Law and Errors of Fact
39.51 Exclusions and Extensions of the Grounds for Challenge
Enforcement 
II.6 ENFORCEMENT OF INVESTMENT AWARDS
39.52 The Exequatur
39.53 Immunity from Execution
39.54 Stay of Enforcement of the First Instance Award
Investment under Other Multilateral Treaties
III. INVESTMENT UNDER OTHER MULTILATERAL TREATIES
NAFTA
39.55 The North American Free Trade Agreement (NAFTA)
The Lomé Conventions
39.56 The Lomé Conventions
Mercosur
39.57 Mercosur
ASEAN Investment Agreement
39.58 The ASEAN Investment Agreement
Energy Charter Treaty
39.59 Energy Charter Treaty
DR-CAFTA Free Trade Agreement
39.60 The DR-CAFTA Free Trade Agreement
World Trade Organisation
39.61 World Trade Organisation
European Development Fund Rules
39.62 European Development Fund Rules
Prospects on the Future of Investment Arbitration
IV. PROSPECTS ON THE FUTURE OF INVESTMENT ARBITRATION
39.63 To Rationalize the Need for Consent
39.64 No More Than Two Degrees
39.65 A Full De Novo Review
39.66 Treaty Claims and Contract Claims
39.67 How to Reduce the Risk of Opposite Construction of Treaties
39.68 A Shorted Duration