Investment Arbitration in 2021: A Look to Diversity and Consistency - WAMR 2014 Vol. 8, No. 3

Author(s): 

Leah D. Harhay

Page Count: 

16 pages

Media Description: 

1 PDF Download

Published: 

December, 2014

Jurisdictions: 

International

Practice Areas: 

Investment Disputes,

Proceedings to Determine or Modify Arbitration Agreement,

ICSID,

Ad hoc,

Arbitrators and Arbitral Tribunals,

Authority of the Arbitral Tribunal

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Description: 

Originally From World Arbitration and Mediation Review (WAMR)

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I. INTRODUCTION

 

The International Centre for Settlement of Investment

Disputes (ICSID) came into being on October 14, 1966, with the

entry into force of the Washington (or ICSID) Convention.1 In its

half century of existence, it has served to foster, define, and bring

investor-state arbitration to the consciousness of the greater

world. Though there are certainly other fora for investment

arbitration — ad hoc proceedings under the UNCITRAL Rules2

being the most familiar — a look to the future of investment

arbitration cannot begin anywhere else but with ICSID, its

arbitrators, its Rules, and, of course, its disputes.

 

The dispute resolution procedures offered in over 2,700

investment treaties worldwide have led to many successful and

legitimate resolutions through the ICSID system.3 There have

been enough problems and concerns, however, for Bolivia and

Ecuador to withdraw their consent to ICSID4 and for Argentina to

probably consider doing the same. Many others have not acted so

rashly, but still question the legitimacy of a system of three —

mostly American and European men — deciding disputes with

significant public interests involved. Although there are

numerous challenges to the current model to discuss, and indeed

many that ICSID itself is considering,5 I focus on three that

symbolize the triad of broader concerns for ICSID’s future:

legitimacy, predictability, and efficacy.

 

To examine these concerns, I turn to the case study of the

Argentinean economic collapse and the ensuing arbitral frenzy. I

focus upon two systemic concerns: the concentration of disputes

among a relatively small group of arbitrators and the problem of

inconsistent awards. Both are readily apparent in the Argentina

example and also speak to the broader triad of concerns

regarding ICSID. I conclude with an examination of proposed

solutions, including the possibility of the creation of an appellate
committee at ICSID.