The Iran – U.S. Claims Tribunal and Investment Arbitration: Understanding the Claims Settlement Declaration as a Retrospective BIT (original) (raw)
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The Transfer of Treaty Claims and Treaty-Shopping in Investor-State Disputes
The Journal of World Investment & Trade, 2009
THE JOURNAL OF WORLD INVSTMENT & TRAE in which it has invested before a neutral international arbitration tribunal (unless an investment agreement, internal law, specific consent, a multilateral agreement giving consent to ICSID jurisdiction or another means of bringing treaty claims had been agreed upon between the investor and the host State of investment). This lack of enacted BITS is also true of many other developing countries.5 By way of comparison, the United Kingdom alone has enacted over 916 BITS with other countries,7 whereas all sub-Saharan Afcan States-other than South Afca, Ethiopia, Mozambique, Nigeria, and Sudan-have enacted no more than eight BiTs with other States worldwide.8 This paucity of BITS-and the consent to international arbitration typicaly contained therein-has the practical effect of precluding jurisdiction for many investors from bringing ICSID, Icc, or UNcITRA treaty claims against host States of investments which are also parties to the ICSID Convention. This both precludes the protections afforded by BITS for certain investors making investments in host States and arguably may decrease the number of investments made in said host States and their economic development. Of course, ideally, any investment would-at the outset-be structured so that the juridical entity making the investment in another State had verified that a BIT was in force between the investor's State and the host State of investment, in case problems were to arise with respect to the investment. Not every investor, however, necessariy has the foresight to ensure that the juridical entity making investments in the host State of investment is protected by a Brr, as the investor may be distracted by many other factors, such as taxation matters. For example, in the Autopista Concesionada de Venezuela CA v. Bolivarian Republic if Venezuela arbitration,9 the initial investors were from Mexico, which did not possess a BIT with the host State of investment, Venezuela. The Mexican investors therefore transferred their shares to a company in the United States, which did have a BIT in force with Venezuela.10 Luckiy for the Mexican investors, Venezuela was found by the Arbitral Tribunal to have accepted this share transfer, alowing the Mexican investors to bring a treaty claim against Venezuela under the US-Venezuela BIT.ll
Annals of the Faculty of Law in Belgrade - Belgrade Law Review, 4/2012
Investor-State contracts are an important instrument for realizing foreign investments. The mixture of public and private law present in these contracts raises a number of interesting legal questions. This article focuses on certain jurisdictional issues which are of high importance for both investors and host States in international investment arbitration. Two main issues are discussed. The first is the relationship between the breaches of investor-State contract as opposed to the breaches of the bilateral investment treaty, and the impact this has on establishing arbitral jurisdiction. The second issue discussed are the “umbrella” clauses and the proper understanding of their content. Both topics are mainly analyzed in the context of ICSID, but conclusions drawn can be applied to other forms of investment dispute settlement. The article concludes with proposed guidelines on how to overcome the existing divergence in jurisprudence which is detrimental to legal certainty in this area of law.
THE DEVELOPMENT OF INTERNATIONAL INVESTMENT DISPUTE SETTLEMENT SYSTEMS
Akademik Hassasiyetler, 2019
Foreign direct investment is currently one the fastest growing parts of international law. It has increased due to the proliferation of bilateral investment treaties (BIT). The contribution of the BITs has ensured the protection of foreign investors and investment. In other words, in cases where there is a dispute, the investor will settle the dispute before the impartial and independent arbitration tribunal instead of the courts of the host state. Thus, BITs limit the host states' sovereignty by providing arbitration method. Although the introduction of arbitration method is considered to be a big step after the Second World War, it cannot be said that it solves the fundamental problem over the time. Before the war, when an investment dispute arose, the investor was used to go to the court of the host state and see the sovereignty power. After the war, investor has been encountered the same effect in the execution of the arbitral award in the host state. Therefore, the focus of the article will be on the history of international investment law based on dispute settlement systems of BITs compared with historical investment dispute settlement systems. In addition, it is argued that the application to arbitration does not change the result of state sovereignty. It may signal future problems in this field since it causes revisiting to the court system. The most obvious example of this is the efforts to establish a multilateral investment court.
Nnamdi Azikiwe University Journal of International Law and Jurisprudence, 2017
This paper analyses the mechanism for settlement of investment dispute in International Arbitration. The paper adopts doctrinal and analytical approach to legal research. The study examines the provisions of the International Centre for Settlement of Investment Dispute (ICSID) being the most recognised platform for settlement of investment dispute. However, references were made to similar institutions for comparison. The study reveals that Investment Treaties-either multi or bilateral treaty (BITs) are entered into to provide avenue for settlement of investment dispute that may arise between states or their nationals to the treaty. The paper argues that certain provisions of ICSID and other institutional mechanisms for settlement of investment dispute contain compulsory arbitration thereby negating the concepts of consent and party autonomy which are salient elements of international arbitration. The paper concludes with recommendations that the offending provisions of ICSID should be reformed in tandem with jurisprudence of arbitration proceedings.
In spite of the fact that consent is the main building block of arbitration, arbitral awards have been steady for some years that a claimant need not have a contractual relationship with a respondent state to initiate arbitral proceedings versus this state, i.e. states unexpectedly were made respondents in arbitrations under arbitration clauses they have never approved or even bargained. The main reason for this arbitral attitude is the extraordinary proliferation of multilateral and bilateral investment treaties (BITs) and national investment laws promoting the settlement of investment disputes through arbitration. A host state might in its national law promoting investment offer to submit disputes arising under certain categories of investments to the jurisdiction of any international arbitral institution and the investor might give its consent thereto in writing. Despite the international acceptance of the aforementioned arbitral attitude among most of the commentators, practitioners suffer the lack of informative and comprehensive academic writings that provide an answer for the question of whether states may incur liability for the acts of their independent entities or not. The imputability of these acts to states is a long discussed and still controversial issue. The international law rules of attribution assume the violation of an international obligation or attribution of the wrongfulness of the conduct to the state, even when it is performed by private entities or subordinate organs of the state. The concept gives rise to questions of imputability, especially when the state entities involved are under an obligation to act independently and separately without the active involvement or approval of their state. Since, these are issues, which frequently come up in assessing the responsibility of states in respect of the violations committed by their independent entities or emanations, this research throws dark shadow on the various approaches adopted by the International Law Commission (ILC Draft Articles)1, the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the ICSID Convention or the Convention) and Case Law through providing an objective analysis for these approaches dealing with all the emerging related issues such as the doctrine of privity of municipal investment contracts, differentiation between treaty based claims and contract based claims, the so called umbrella clauses, and the applicability of the theory of alter ego in this respect.
The Case for Host State Claims in Investment Arbitration
Journal of International Dispute Settlement, 2010
Investment arbitration has flourished as a result of claims brought by foreign investors against host States, whilst host States claims against foreign investors have remained infrequent anomalies. This essay argues, nonetheless, that facilitating host State claims would impart unprecedented stability to the system of investment arbitration. Not only would this encourage host States to act as claimants more often, but it would also bolster host State confidence in investment arbitration by instilling a reinvigorated sense of equality, in keeping with the original vision of the ICSID Convention's drafters. Three proposals are advanced to bring this thesis to fruition, to wit: re-establishing privity with respect to the arbitration agreement, conferring substantive treaty rights on host States, and construing treaty and contract jurisdiction in a way that enables host State claims on a par with investor claims.