Jurisdiction and Admissibility in Investment Arbitration: The Practice and the Theory* (original) (raw)
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Investment Arbitration Jurisdiction and Admissibility
Jurisdiction refers to the power of a court or judge to entertain an action. By contrast, admissibility concerns the power of a tribunal to decide a case at a particular point in time in view of possible temporary or permanent defects of the claim. With admissibility, the question is whether the claim is ready for decision at this stage. Whereas jurisdiction typically looks at the dispute as a whole, admissibility is concerned with particular claims. Even though the distinction between jurisdiction and admissibility is a longstanding one in international law, the delimitation of the two is not always straightforward, and in addition the terminology is sometimes inconsistent. In investment arbitration, the boundary between jurisdiction and admissibility is particularly fluid. After introducing the central concepts – jurisdiction, admissibility and applicable law, Section B examines different modalities of how states and investors consent to the adjudication of their investment disputes. Section C turns to three general jurisdictional questions: Kompetenz-Kompetenz; the existence of a legal dispute and counterclaims. Section D turns to the scope of jurisdiction, and looks the four dimensions of jurisdiction (personal, territorial, temporal and subject matter). Section E distinguishes issues of admissibility from issues jurisdiction, and explains how jurisdiction and admissibility interact.
Jurisdiction and Admissibility in Investment Arbitration. A View from the Bridge at the Practice
The Law & Practice of International Courts and Tribunals
The jurisdiction of international courts and tribunals and the admissibility of inter-State claims under international law are central to international adjudication, operating as a gateway to the litigation on the merits – the end goal of the proceedings. Still, these concepts remain inherently under-defined, and can be shaped in multiple ways to formulate preliminary objections in international litigation in general. International investor-State arbitration adds specific aspects and complexities to the issue. This introductory contribution accounts for the theoretical deficiencies underpinning the notions of jurisdiction and admissibility, with a special focus on international investment arbitration, and introduces the selected case-studies which form the subject-matter of the articles in this Special Issue. The recent Urbaser award is also used as an example of the unexplored potential of novel – and critical – legal argumentation relating to the jurisdiction of investment tribunals.
Menage a trois? Jurisdiction, Admissibility and Competence in Investment Treaty Arbitration
ICSID Review: Foreign Investment Law Journal, 2013
It would not be fair to say that investment treaty tribunals have struggled with the distinction between jurisdiction and admissibility. They have rather often tended to avoid it, just as they have tended to avoid dealing with the related but somewhat obscure concept of 'competence'-a term mentioned in Article 41 of the ICSID Convention and Article 41 of the ICSID Arbitration Rules, but not defined in either document and rarely analysed by ICSID tribunals or academics. 2 The leading commentary on the ICSID Convention goes so far as to suggest that 'the distinction [between jurisdiction and competence] is of little consequence. .. The two terms are frequently used interchangeably.' 3 The pragmatic approach adopted by treaty tribunals to the distinction between jurisdiction and admissibility is reflected in statements such as the following by the
Diritto del Commercio Internazionale, 2021
International investment arbitration-ICSID Additional Facility-Annulment by national courts-Distinction between jurisdiction and admissibility-Jurisdiction ratione temporis. A time-bar included in a BIT is a matter of extinctive prescription and it relates to admissibility rather than jurisdiction. Consequently, an arbitral award cannot be annulled on the basis of the failure of the arbitral tribunal to enforce such a time-bar. FACTS.-Rusoro Mining Limited ("Rusoro") is a company incorporated in Canada that operated in the gold mining sector in Venezuela from 2006 to 2011. In 2009 Venezuela enacted a number of measures that had a severe impact on foreign companies operating in the sector. In 2011, the entire gold industry was nationalized by Venezuela and, consequently, Rusoro's mining rights and other assets were taken over by the State.
Jurisdiction ratione temporis in International Investment Arbitration
The Law & Practice of International Courts and Tribunals, 2017
Issues concerning the temporal scope of jurisdiction of international investment arbitration tribunals are attracting increased attention due to recent events, such as the denunciation of the icsid Convention by some states, the denunciation of bilateral investment treaties from which the tribunals draw their jurisdiction, or the provisional application of other treaties concerning investment protection. The solutions offered by most arbitral tribunals are in line with international customary rules on the law of treaties, a point which deserves attention as further proof of the cohesiveness of international investment law with public international law.
The purpose of this article is to examine the different methods of conflict of laws or private international law3 that arbitrators follow in order to determine the proper law or applicable substantive law of a contract when the choice of law provision is absent in it. It will be shown that there are two principal trends in those methods that lead respectively to the theories of localization and delocalization or denationalization of international arbitration. The arbitrator's freedom of will plays an important role towards such denationalization. To what extent arbitrators can exercise that freedom is a matter of some controversy. It should be mentioned that the present study bears closely upon Article 28(2) of the UNCITRAL Model Law on International Commercial Arbitration (1985) which authorises the arbitrator to apply conflict of laws rules in determining the proper law of the contract when this has not been designated by the parties. The Model Law is now being increasingly adopted in many developed and developing countries. On the question of choice of applicable conflict of laws rules, the discussion will try to offer some practical insights.
International Conference on Advances in Business, Management and Law (ICABML) 2017, 2017
The notion of Investment is one of the most controversial issues trailing the dispute settlement mechanism of International Center for Settlement of Investment Dispute (ICSID). One notable issue surrounding the controversy is identifying an exact definition of investment for the purposes of ICSID Jurisdiction. While some tribunals tend to give effect to the agreement of the parties contained in their contracts or the underlying bilateral investment treaty as giving rise to the ICSID jurisdiction by consent, others tend to subject parties consent into a filtering mechanism based on a certain developed criteria. The aim of the paper is to add clarity to the corpus juris of investment treaty arbitration and provide guidance to the investment treaty tribunals regarding the determination of notion of investment. In doing so, the paper typifies the problem with the notable case of MHS v Malaysia. It then analyzes the two approaches from subjective and objective perspectives. The paper concludes with the proposition that ICSID notion of investment may not necessary lie with either of the two approaches.
Even though international investment law (IIL) has developed at an unprecedented pace, its newly acquired popularity has come at a high cost. In a time of crisis of Western liberal-democracy and questioning of the economic model even by its fierce advocates, it has become easy prey for those disappointed with the distribution of wealth and prestige and for the political class, which has tried to “outsource” responsibility for problems unresolved domestically. Deficiencies in the construction of IIL has aggravated a legitimacy crisis. Unfortunately, current reform initiatives do not address the roots of the problem. In this paper, I suggest ways of solving the legitimacy problem and for restructuring the normative framework. I start by asking whether the legitimacy crisis is an actual problem worth analysis or if it is a theoretical exercise void of practical relevance (Part 2). On the assumption that addressing this issue is necessary for the subsistence of IIL, three possible sources of legitimacy are indicated. Having opted for so-called social legitimacy, I refer to the Weberian legal-rational model (Part 3). In order to decide which stakeholders should be allowed to influence investment law directly, I recall Leon Petrażycki’s notion of the law’s superiority over morality (Part 4), which leads me to the conclusion that IIL reform should focus on home states, rather than on the investor-host state balance. With the backdrop of the subjective scope of investment law, I highlight major substantive shortages of IIL (Part 5). In accordance with the theory of legal impulsions, I subsequently argue that the current restrictive definition of IIL not only does not reflect the reality of arbitral decision-making but also hinders meaningful reform debate. From this rift between formal definition and actual understanding of IIL stem misconceptions about domestic problems that are transferred to an international plane. I argue that without reaching domestic compromise in terms of wealth distribution, current international initiatives constitute an anaesthetic, at best (Part 6). The solution advocated in this paper is to fully embrace the principle of rule of law as the substantive contents and formal requirements with respect to IIL. It is argued that an investment consensus based on this principle simultaneously resolves the legitimacy concerns and contributes towards the development of law (Part 7). Because investment law both constitutes and is created by the international investment community, a separate passage is dedicated to the relationship between the rule of law and the rule of arbitrators, and its possible impact on legitimacy (Part 8). Having thus prepared the ground for internalisation of the rule of law, I argue that IIL can embrace a broader standard (thick rule of law) than what would be reasonable in other branches of public international law (Part 9), which is adapted for investment purposes (Part 10). I conclude with general remarks (Part 11).
The Role of Precedent in Defining Res Judicata in Investor–State Arbitration
Northwestern Journal of International Law & Business, 2012
Economic globalization commands a juridical counterpart in the field of international dispute resolution. International arbitration serves that function and will continue to do so until such time as transnational tribunals of civil procedure come into being. The uncertain nature and application of the doctrine of precedent—stare decisis—in international arbitration underscores the immediate need (i) for application of a transnational res judicata doctrine, and (ii) uniformity in the elements and application of the doctrine. Regrettably, although universally accepted, the doctrine in its current status is fragmented because it is territorially based and ill-suited for use in an environment of economic globalization that aspires to be monolithic, at least with respect to the scope of a global market economy Northwestern Journal of International Law & Business 32:419 (2012) 450 that finds no historical precedent. Even among civil law jurisdictions the basic elements of the triple ident...
Beijing Law Review, 2021
This article discusses the powers of an arbitral tribunal to determine its own jurisdiction. The determination of the question of the jurisdiction of a tribunal lies in its own domain at least in the first instance by virtue of the principle of competence-competence. The principle enables a tribunal to test its own jurisdiction and confirm the extent of its power. This is one of the pillars of arbitration as it promotes party autonomy. The positive aspect of this power of the tribunal is that it cures the excesses of jurisdiction or any lack of it by granting an objecting party with immediate remedy thereby saving costs and time. The downside of this power is that an objecting party may still be permitted under the English Act and the Model Law to revert to court during the proceedings if he is not happy. However, time is of the essence. The article rests on an accumulation of case law, current and secondary literature. It takes cognizance of the fact that parties to an arbitration ...