Do Municipal Investment Laws Always Constitute a Unilateral Offer to Arbitrate? The Venezuellen Investment Law: A Case Study - Chapter 6 - Investment Treaty Arbitration and International Law - Volume 2
Victorino J. Tejera Pérez is an Attorney in the Caracas office of Macleod Dixon LLP. He concentrates his practice in commercial law, conflict law and corporate matters. He focuses his practice in national and international litigation and arbitration and in Alternative Dispute Resolution in general.
Mark Kantor is an independent arbitrator. He teaches both international arbitration and international business transactions as an Adjunct Professor at Georgetown University Law Center. He is also a Fellow at the Columbia Program on International Investment.
Michael D. Nolan is a Partner in the Washington, D.C. office of Milbank, Tweed, Hadley and McCloy LLP. Mr. Nolan is experienced in all phases of commercial litigation and arbitration.
Marco E. Schnabl is a Partner in the international arbitration and litigation groups of Skadden, Arps, Slate, Meagher & Flom LLP, New York City. He has appeared for claimants and respondents in proceedings before the leading international arbitral institutions including several involving investment treaty arbitrations.
Margrete Stevens is a Consultant in King & Spalding’s Washington, D.C. office working in the International Investment Arbitration Practice Group. Ms. Stevens served as Acting Lead Counsel, supervising the ICSID Secretariat’s administration of more than 100 investor-State arbitration proceedings including cases brought under bilateral investment treaties; NAFTA; and the Energy Charter Treaty.
Perry S. Bechky is a Professor of Law at the University of Connecticut School of Law, Hartford, CT.
Chapter 6
Do Municipal Investment Laws Always
Constitute a Unilateral Offer to Arbitrate?
The Venezuelan Investment Law: A Case Study
Victorino J. Tejera Pérez*
I. INTRODUCTION
Do municipal investment laws always constitute a unilateral offer to
arbitrate? The answer to this question seems obvious to us: no, investment
laws do not always constitute unilateral offers to arbitrate. In our view,
whether they constitute unilateral offers to arbitrate or not will ultimately
depend on the specific wording of each municipal investment law.
Indeed, there are investment laws that do not even contain
provisions regarding arbitration as a means of dispute resolution. Such is
the case of the Syrian Investment Law,1 the South Korean Foreign
Investment Promotion Act, the Foreign Investment Law of Myanmar, the
Mexican Foreign Investment Law as amended on June 4, 2001 and the
Honduran Decree No. 80-92 of June 1992 on investments. None of these
mention dispute resolution, which would seemingly indicate that disputes
have to be settled through local courts. Other investment laws, such as the
1955 Iranian Foreign Investment Law in its Article 3, expressly
contemplate recourse to domestic courts for foreign investors, as opposed
to those that do not mention mechanisms of dispute resolution.2
As Mr. Antonio Parra pointed out several years ago, many
investment laws emphasize the desirability of the negotiated settlement
of disputes between foreign investors and the host State. The 1994
investment law of Ghana, for example, provides that “[w]here a dispute
arises between an investor and Government in respect of an enterprise,
all efforts shall be made through mutual discussion to reach an amicable
CHAPTER 6
Do Municipal Investment Laws Always Constitute a Unilateral Offer to Arbitrate?
Victorino J. Tejera Pérez
Marco E. Schnabl
Michael D. Nolan
Margrete Stevens
Mark Kantor
Perry S. Bechky
PANEL DISCUSSION