With the increased caseload in recent years[2], International Centre for Settlement of Investment Disputes' (ICSID; the Center) arbitration came under scrutiny of investors and contracting states. In the past, the Center made several amendments to the ICSID Arbitration Rule and Additional Facility Rules to meet the demands of the disputing parties.[3] Much has changed since the last modifications of the Rules in 2006. Meanwhile, thirteen new contracting states have joined the ICSID Convention, while Bolivia, Ecuador and Venezuela have left. Additionally, some countries, including Australia, no longer include investor-state dispute settlement procedures in their future bilateral trade agreements.[4] Past fifteen years were full of challenges as well as success of dealing with great number of cases and expanding the number of Contracting States. Some problems regarding the nature of the Center and its arbitrations became apparent. The majority of criticism were addressed to the lack of transparency, vagueness of the jurisdiction and inconsistent decisions of the tribunals.
Part 2 of this paper will discuss lack of transparency which was criticized as most of the cases affect public interest directly or indirectly and not all of the case materials and decisions are available for the public. Transparency is important due to the fact that investment arbitration is the biggest instrument in pushing forward the development of international investment law. Investorstate arbitration can help to produce a body of international investment law that is more coherent than the judicial endorsement of investment laws that diverge from one national legal system to the next.[5] On top of that disputing parties were not satisfied with absence of possibilities for third party participation or amicus curiae brief admissions. Part 3 will cover jurisdictional issues that were pointed to the intertwined treaty claims and contractual claims. Matter derives when claimant uses umbrella clause and a contractual violation to set in motion the arbitration process, which usually is initiated by treaty-based violations. And lastly Part 4 will examine the inconsistency in decisions which was alarming the contracting states. ICSID arbitration tribunals gave two opposite decisions in seemingly similar cases. ICSID's reasoning behind that was the cases were ad hoc and individual with differing circumstances. This paper will exam-
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ine upper mentioned criticisms and its grounds, suggested solutions and what did the academia and the Center itself offered.
International investment arbitration resolve disputes between a state and an investor of another state who raise allegations that the host state government acted wrongfully. Quite often these disputes arise from matters affecting public interest that are related but not limited to natural resources, environmental and health regulations or disputes with significant financial impacts on the state budget hence tightly affecting the taxpayers. Investor-state dispute settlement (ISDS) follows similar set of rules as commercial arbitration. Usually, commercial arbitration lack transparency and limit public participation in proceedings due to the private nature of parties' relationship. Hence international investment arbitration (IIA) follows the tendency and provide the disputing parties confidentiality based on the private-public nature of the relationship, as it includes a private business entity of different state.
As we mentioned earlier, international investment arbitration is the main instrument in developing the international investment law. Thus such lack of transparency has several negative impacts on international investment law and arbitration. Firstly, it weakens the legitimacy of ISDS system and the decisions delivered with it. Secondly, it eliminates the possibility of access the decision reasoning which could explain the way investment agreements perceived in practice. And lastly, lack of transparency violates the public's right for information that affect them directly or indirectly. In comparison with other tribunals, ICSID have the most openness and somewhat provided transparency by publishing the awards with the parties' consent. However, parties having a veto power over the publication can potentially create an obstacle. Amendment in Procedural Rules in 2006 were another step forward for the Center as it allowed amicus curiae briefs and participation of third parties in the proceedings.
Transparency became topic of a broad discussion among public since the ICSID Secretariat published a discussion paper in 2005.[6] One of the problems that paper introduced was lack of transparency in ICSID arbitration proceedings. Thus it proposed that the Center must promote the publication of arbitral awards thus promoting transparency and must encourage amicus curiae briefs being admitted to arbitral proceedings. One of the very few supporters of this proposal was International Institute for Sustainable Development. Opposing to the Center's concern on transparency related expenses, International Institute for Sustainable Development mentioned that UNCTAD's cost did not increase much just because of the public hearing.[7] And on the other side the fiercest opposition was the investors who did not wish for third party participation in the proceedings.[8] Despite the fact that discussion papers innovative vision, it
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was flawed in couple of ways. Firstly, the Secretariat lack the authority to initiate substantial reform as it is absent from the functions of the ICSID Secretariat.[9] Secondly, there was a practical limitation because Secretariat officials who were not in the office long enough to see fruition of their proposal.[10] Notwithstanding that discussion paper did not have a competence to be finalized, it became the starting cog of the Center's movement towards more transparent proceedings.
Further we will discuss transparency trends and how ICSID reflected them in itself. The main transparency trends are (a) the commencement of proceedings, (b) access to documents during the proceedings, (c) open hearings, (d) amicus curiae briefs, (e) the final award and (f) exceptions to transparency for protection of confidential business information, state secrets, or other privileged or protected information. The commencement of proceedings is the notification of the public about proceedings that have been filed. Under ICSID Convention, parties must file a request for proceedings with the ICSID Secretary-General, who then registers the request.[11] Following the parties' request the Secretariat is obliged to publish the information about the registration of those request based upon ICSID's Administrative and Financial Regulations.[12] The Secretariat keeps the basic information listed on their website.[13] Access to documents during the proceedings is not regulated in ICSID Convention, it neither imposes general obligation of confidentiality, nor requests publication. Therefore, parties have full autonomy regarding publishing the tribunal's decisions, orders and other documents submitted to the tribunal. In case the both parties of the proceeding consent to the publication of the proceeding records, the Secretary-General shall arrange for the publication in an appropriate form.[14] ICSID Arbitration Rule 32(2)[15] covers the possibility of including impartial third party in the proceedings and the parties would have a veto power, fixed in phrase 'unless either party objects', with which they could prevent open hearings. Similar wording exists in Article 39(2) of the Additional Facility Rules.
ICSID rules and regulations continue to enable a disputing party to veto open hearings, however the new language indicates a slight trend towards openness as it seems to require one party to affirmatively object to open hearings in order to keep it closed. By comparison, Rule 32 in both the 1984 and 2003 versions of the ICSID Arbitration Rules required affirmative consent of the parties.[16] It stated: 'The Tribunal shall decide, with the consent of the parties, which other persons besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal may attend the hearings.'
Amicus curiae briefs became official in ICSID with the Amendments of 2006 with a newly added Rule 37 to the ICSID rules of proceedings. However, even before 2006 the tribunal could accept amicus curiae briefs on their discretion.[17] Rule 37 stated that tribunal may admit the brief of non-disputing party on that matter of the dispute[18]
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and has some limitations to its application: (a) parties to the dispute must be consulted prior; (b) non-disputing party submission must not disrupt the proceedings; (c) non-disputing party must have significant interest in the process, it could constitute a public[19]interest; (d) third party must bring a perspective, particular knowledge/insight that is different from disputing parties.[20] From the Center's perspective Rule 37 was a compromising step towards meeting the proposal of the Secretariat. However, there are several issues regarding the applicability of the Rule 37 and its preconditions: whether the independence of parties of the dispute is violated by the exercise of tribunal discretion, directly or indirectly; whether admitting third party briefs and testimony will lead to annulment proceedings; and lastly, whether third parties that cannot afford the direct or indirect cost of such participation in the proceedings will have prejudice. Due to ICSID's ad hoc nature and claims being decided case-by-case basis, these issues are hard to address and give ultimate answers.
The ICSID Rules do not require one disputing party to obtain the other's consent before publishing awards. Consent of the parties is only required when the ICSID Secretariat, not one of the disputing parties, seeks to make the award public. Additionally, following the 2006 revisions to the ICSID Rules, the ICSID Secretariat must 'promptly include in its publications excerpts of the legal reasoning' supporting the award even when parties do not agree to ICSID's publication of the award itself.[21] Additionally, UNCITRAL Rules on Transparency in Treaty based Investor-state Arbitration of 2014 gives substantial authority to the tribunal to make all documents, testimony and proceedings transparent, unless the tribunal finds the information to be confidential or protected.[22] This rule applies to arbitrations that use UNCITRAL Rule of Arbitration, that were filed under treaties concluded after April 2014, unless parties agreed otherwise.[23] Same rules apply to the treaties concluded before April 2014 if parties to the dispute decide so. Thus, UNCITRAL Rules on Transparency in Treaty based Investor-state Arbitration can be used as a model for other tribunals as well as ICSID.
Latest Amendment process of ICSID Arbitration Rules and Additional Facility Rules started in 2016 and the latest Working Paper 4 sets out amendments to transparency provision. Chapter X and specifically Rule 63 of Arbitration Rule amendment proposal states that the Center shall publish orders and decisions, with any redactions agreed to by the parties and jointly notified to the Secretary-General within 60 days after the order or decision is issued.[24] In case the parties object to such publication, the ICSID Secretariat will publish it and retain the present Arbitration Rule's status quo.[25] Furthermore, WP4 is allowing the publication of documents files in the proceeding with the parties consent. However, if the party does not agree with such publication, it can refer it to the tribunal and consequently, the tribunal will determine whether publication is permitted.[26]
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In order to examine the jurisdictional issues of the Center, we need to determine the definition of jurisdiction in ICSID proceedings sense. Firstly, jurisdiction is the authority by which courts and judicial officers take cognizance of and decide cases; power and authority of a court to hear and determine a judicial proceeding; right and power of a court to adjudicate concerning the subject matter in given case.[27] Secondly, competence is the fact that court having a lawful jurisdiction.[28] However, ICSID does not differentiate the two terminologies. Reed, Paulson and Blackaby commented on Article 41[29] of ICSID Convention and stated that the tribunal shall be the judge of its own competence meaning that the tribunal itself is to decide questions regarding its jurisdiction.[30] Principle of competence/competence supports the latter argument and functions as a ground for ordinary meaning of jurisdiction. This would support the thesis that two terminologies stand for the same meaning. However, professor Christopher Scheuer disagrees and says that jurisdiction and competence have special meaning. He mentioned that the Convention's English text is consistent in distinguishing between the jurisdiction of the Center and the competence of the Commission or Tribunal.[31] Under the Convention's terminology the word 'jurisdiction' refers to requirements set out in Article 25, that are conditional for power of a conciliation or arbitral tribunal. And 'competence' refers to a specific tribunal and its issues such as its proper composition or lis pendens.[32 ]The idea behind this notion is that the ICSID is not an arbitral tribunal nor an international court, it is rather administrative institution which serves the arbitrators and the parties in matters concerning the administration of international arbitration proceedings.[33] Admissibility is another issue that needs to be discussed with 'jurisdiction' and 'competence'. It is however completely different terminology that ICSID does not contain. The term is used to describe constraints on the right to file claims in cases clearly subject to arbi-tration.[34] As mentioned in Water Management[35] case: 'Jurisdiction is power of the tribunal to hear the case; admissibility is whether the case itself is defective -whether it is appropriate for the tribunal to hear it'. Admissibility can be identified in cases where parties failed to comply with prejudicial requirements such as meditation, exhaustion of domestic court system and so on.
Criticism on jurisdiction is originally rooted in the legal basis of the investment dispute: whether it is treaty violation or a contractual violation. Ju-risdictional issues in ICSID proceedings are sometimes related to the overlap of treaty-based rights and contract-based rights. Usually, the investor will enter into a contract with the host State or a its agency, which will govern the parties' contract rights and obligation.[36 ]Furthermore, the host state usually has Bilateral Investment Treaty with the investor's home state. Therefore, the treaty and contractual rights overlap, creating a very distinctive method for dispute resolution. The main difference
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between two rights is the legal basis. A contract claim will be based on the terms of the contract, and a treaty claim will be based on the terms of the treaty.
On one hand, treaty-based rights are agreed between two sovereign states in a treaty and include general, not specific rights. For example, most common treaty rights are fair and equitable treatment, most favored nation and compensation for the expropriation. Sources or applicable law in treaty-based rights are BITs, contracting state law and international law. Its aim is to avoid a perception of unfair advantage for the state, thereby giving a comfort level to investors that will encourage them to invest.[37] In a dispute arising from treaty-based violations, even if the treaty is between two states, one party will be the investor who has the rights under the treaty and the state itself, not a state agency. On the other hand, contract-based rights are included in a contract between two private entities, making their dispute a commercial arbitration. In contracts the rights of the parties are more specific and fits parties' individual relationship. Applicable law in commercial arbitration is contracting state's domestic law. In the events of the dispute, the parties would be foreign investor's subsidiary against a state agency. These two methods likely to provide two incompatible methods on dispute resolution: investment arbitration and domestic courts. The investor will try to characterize any breach as treaty breach in order to initiate an arbitration process and vice versa. Tribunals decide on cases individually based on different pertinent factors, including the treaty and contract wordings.
Since the 1990s investment arbitration became a primary means of developing international investment law. Host and home countries could not agree on general terms of investment regulation mainly because of Investor-State dispute settlement: host countries wanted the investor to exhaust the domestic court system and then initiate arbitration, however investors could not trust courts of the host country. On international level the Organization for Economic Cooperation and Development and United Nations Conference on Trade and Development tried to codify the international investment law with their model laws but members of these organizations could not come to a consensus. Thus the investment arbitration became the main developer of the international investment law.
Thereafter, developing countries faced with a challenge of attracting foreign investment into their economy in order to boost it. Bilateral Investment Treaties (BIT) or Treaties with Investment Provisions (TIP) being the primary source of initiating ICSID arbitration, it requires the contracting states to conclude investment treaties in order to step towards developing their investment policy. Hence having proper legal instruments that protect foreign investor and its investment is a necessity. The main instruments that guarantee full investment protection are the specialized domestic legislation and
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BITs or other international investment treaties that enables foreign investors to initiate investment arbitration in case of a dispute. BITs and investor-state dispute settlement is a strategic move for developing countries and they enter such BITs on their own will with calculated risk. Trakman criticizes developing countries for their own economic disadvantage that put them in position to conclude BITs with limited options.[38] He further mentions that developing countries blame developed countries for their collective decisions through World Bank Group which put them in difficult situation with limited choices.[39] Some Bilateral Investment Treaties have preconditioning requirements for foreign investors to seek alternative dispute resolution methods before initiating arbitration. Alternative dispute resolution methods such as consultation, negotiation and domestic court litigation that have limited time period. Usually the consultation period starts by a letter from the investor to the state. Letter must be addressed to the top state official instead of the head of a state entity who signed the investment contract.[40] In case the investor brings the claim to the arbitration without meeting the contractual preconditions, the award may be challenged as unenforceable. Many difficulties arise in investment arbitration due to "fork in the road" provisions, which gives right to the parties to choose one option and automatically deny the other available options. Typically, it is a defensive clause in order to disable parallel proceedings.
In discussion about the umbrella clause is inevitable in examining the overlap of treaty-based and contract-based right. Umbrella clause imposes an obligation on a contracting state to observe all obligations it has undertaken with respect to an investor from other contracting state. It extends the independent protection of the treaty to breaches of contractual or other commitment made by the host state in relation to the foreign investment.[41] Historical explanation to this phenomena is that in 1990s, international investment was regulated solely by investment contracts. In the context of umbrella clause, it is the treaty that creates a 'mirror effect'[42] of the contractual obligation into the realms of international law, rather than the contract itself.[43] In the past, tribunals tended to differentiate the two breaches, unless the conduct is "beyond that which an ordinary party could adopt and (would) involve state interference with the operation of the contract".[44] With umbrella clause the contractual breach could trigger protection of the treaty. However, the question is whether umbrella clause mean that if the state breaches contractual right, that are not violation of international law, an investor can initiate investment arbitration based on a treaty? According to C.L. Lim, Jean Ho and Martins Paparinskis, the answer is yes as they state that no one seems to object to any overlap between a treaty and a contract in terms of what each prescribes.[45] Does the umbrella clause make every contractual breach equal to the breach of invest-
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ment treaty? This interpretation seems to be unnecessarily broad.
There are two different decisions that came out around the same time with the same Claimant, and have opposing decisions on the use of umbrella clause. First one is SGS v. Pakistan, where the tribunal has rejected the clause in the Switzerland - Pakistan BIT.[46] Article 11 of Switzerland - Pakistan BIT[47], that is used in SGS v. Pakistan case, stated that: 'Either Contracting Party shall constantly guarantee the observance of the commitments it has entered into'. The Tribunal decided that the text of Article 11 does not purport to state that breaches of contract alleged by an investor in relation to a contract it has concluded with a State (widely considered to be a matter of municipal rather than international law) are automatically 'elevated' to the level of breaches of international treaty law.[48] Furthermore, it mentioned that the wording of the Article 11 should be read as it is enhancing mutuality and balance of benefits in the inter-relation of different agreements located in differing legal instruments. And lastly, the Tribunal concluded that the Claimant did not deliver clear and persuasive evidence that Article 11 of Switzerland - Pakistan BIT contains umbrella clause, whereas the Respondent denies that the contracting parties intention was to include this article as an umbrella clause.[49]
On the contrary, the SGS v. Philippines tribunal accepted the clause in Switzerland - Philippines BIT as an umbrella clause.[50] At first glance seemingly similar to Article 11 of Switzerland - Pakistan BIT, the Switzerland - Philippines BIT's Article X(2) reads: 'Each Contracting Party shall observe any obligation it has assumed with regard to specific investment in its territory by investors of other Contracting Party'.[51] The Tribunal observed that Article X(2) is different, as it use the word 'shall' suggesting the existence of a legal obligation, and the phrase 'any obligation' including all future obligations which the host State will assume.[52] It further observed that the BIT supports effective interpretation principle, promotion and reciprocal protection of investment, thus it is legitimate to resolve uncertainties in its interpretation so as to favor the protection of covered investment.[53]
Therefore, investment tribunals can commence contractual analysis if the parties request so. If such request is unavailable, most international investment tribunals such as ICSID and UNCITRAL, authorizes tribunals to act on their discretion and conduct the analysis. On the broad interpretation of umbrella clause, in his dissenting opinion on Eureko v. Poland Partial award, arbitrator Jerzy Rajski's mentioned that by the wide interpretation of umbrella clauses, division between the national legal order and the international legal order is completely blurred.[54] On the other hand, UNCTAD supports the umbrella clause and it states that main purpose of umbrella clause is redress state's violation in independent forum. Main advantage of bilateral investment treaties is the possibility to initiate the international arbitration. Thus the umbrella clause protects that right. However, the arbitrators are skeptical of such broad interpretation of UNCTAD.
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The last but not least of recent criticisms on ICSID arbitration proceeding was the inconsistency in the decisions. It was important as arbitral decisions were undoubtedly one of the sources of international investment law. And as scholars argued, arbitral decisions are material source and probably the most influential one among other sources.[55] Criticism on inconsistent decisions triggered discussions about appellate mechanism in international investment arbitration and abolishing the annulment-based system.
As of the need in consistency overall, the scholars have divided into two wings. Scholars who support the consistency idea say that it is necessary as arbitral decisions move forward the law itself by expanding the rule of law. Hence having consistent decisions is crucial for predictability, thus the coherent rule of law. Previously, international organizations such as UNCTAD and OECD tried to harmonize the international investment law, but contracting parties could not agree on the terms. And arbitral decision came as acting precedents and started filling the gaps. One of the representors of this view is Schill. Stephan Schill argues that 'investor-state arbitration performs the important function of protecting foreign investments against illegitimate government interference'. This function needs to be pursued, he states, in such a way that 'enhances the predictability of investment arbitration'.[56] When decisions are consistent with each other, it increases predictability which allows both states and investors to align their behavior with more certainty about the consequences of their actions. Thomas Schultz states that predictability is what the rule of law is all about.[57] However, further he argues that having consistent decisions in international arbitration and by that the arbitrators acting as law-makers is not a necessarily a good thing. Precise, consistent rules, forming a regime that meets the requirements of the rule of law, are not inherently preferable to vague, inconsistent rules forming a regime that does not meet the standards of regulative quality which partake of the rule of law, in its incarnation as formal legality.[58]
Inconsistent decisions of the ICSID can be reasoned by the fact that every case is decided on ad hoc basis with different arbitrators and every case is individual with different bilateral investment treaties chosen as a governing law. Furthermore, there are over 2000 BITs and Treaties with Investment Provisions existing[59], it would be difficult to align them under consistent and coherent decisions. Great number of inconsistent decisions are somewhat inevitable. For example, as we discussed earlier the SGS v. Pakistan and SGS v. Philippines cases, seemingly similar cases but two different decisions were made on the objection of jurisdiction. And all of that because of the different wordings of the subsequent BITs.[60] Nonetheless, arbitrators face the need to interpret differently worded treaties and applying variable conceptions such as direct and indirect expropriation, as well as fair and equitable treat-
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ment to distinct cases. It is not a secret that arbitration tribunals make references to previous cases, although there is no binding precedent in investment arbitration. Therefore, another solution that scholars representing is to have an appellate mechanism.[61] WTO's appellate body is an example of working mechanism in international commercial dispute resolution. Since arbitrators recite previous cases it would be not much different to have an appellate body and have them recite cases, hence making a precedent. Consequently, appellate mechanism is in discussion and the Center has not addressed the questions regarding the inconsistency in their decision rather pointing it to the wordings of differing investment treaties.
With more data that appeared after hearing over 600 cases, ICSID became a target for criticism from investors and contracting states. Transparency related issues are being gradually dealt with since the Amendment of 2006. And now upcoming Amendment's Working Paper 4 presents further possibilities of making the ICSID proceedings more transparent than ever. It envisions to lessen the veto power of the disputing parties on publication of case materials. Jurisdictional criticism is related to overlap of contractual and treaty rights, and how umbrella clause plays a great role in allowing these two rights to overlap. Umbrella clause enables investors to bring arbitral proceedings on contractual violations. Usually, investment arbitration is initiated on treaty violations. Since the TIPs and BITs differ in their wording, decisions of the tribunals tend to be inconsistent. Tribunals explain this with their ad hoc nature, and the treaties that arbitration is brought upon is individual to each case. Some scholars support the idea of consistency in the decision, stating that it will only increase predictability and consequently the rule of law. Others disagree and state that giving the arbitrators potential legislative power will do more harm than good. And last part of scholars says that appellate mechanism of IIA is the way to put an end to this. They claim that appellate mechanism will allow tribunals to legitimate the precedent law, since arbitrators refer to previous cases nonetheless.
We will have to wait and see what will the new Amendment bring. The Proposals are not conclusive. They will be subject to another round of comments before ICSID's governing body. The ICSID Secretary-General has stated that ICSID's goal is to place the proposed amended ICSID Rules before the Administrative Council for a vote in the latter half of 2020. If then adopted, the amendments could be in place by early 2021. As a general rule any proposed amendments to the ICSID Rules must achieve a two-thirds majority approval from Administrative Council. ■
JEGYZETEK
[1] The study was prepared as part of the program between the Ministry of Justice and the University of Debrecen Faculty of Law to improve the quality of legal education.
[2] ICSID's case load increased starting since 1997, The ICSID Caseload Statistics, Issue 2020-1, Chart 2, 7. Available at: https://icsid.worldbank.org/sites/default/files/publications/Caseload%20Statistics/en/The%20ICSID%20Caseload%20Statistics%20 %282020-1%20Edition%29%20ENG.pdf
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[3] Latest amendment made in 2006. Available at: https://icsid.worldbank.org/news-and-events/speeches-articles/brief-history-amendment-ic-sid-rules-and-regulations
[4] Jurgen Kurtz: Australia's Rejection of Investor-state Arbitration: Causation, Omission and Implication. ICSID Reviev 2012. Vol. 27, pp 65-86.
[5] Leon Trakman: Regionalism in International Investment Law. Oxford University Press 2013 pp. 275.
[6] See International Centre for Settlement of Investment Disputes, Suggested Changes to the ICSID Rules and Regulations (ICSID Secretariat Working Paper, 2005).
[7] Trakman: pp 282.
[8] Ibid.
[9] Article 9-11, ICSID Convention. Available at: http://icsidfiles.worldbank.org/icsid/icsid/staticfiles/basicdoc/parta-chap01.htm.
[10] Trakman: pp 282. Of note, a particularly vocal supporter of reform of the ICSID, Antonio Parra, vacated his office as Deputy Secretary-General of the ICSID shortly after the Secretariat proposed the reforms.
[11] Article 36, ICSID Convention: "(1) Any Contracting State or any national of a Contracting State wishing to institute arbitration proceedings shall address a request to that effect in writing to the Secretary-General who shall send a copy of the request to the other party... (3) The Secretary-General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre." Available at: https://icsid.worldbank.org/sites/de-fault/files/ICSID%20Convention%20English.pdf.
[12] Regulation 22, ICSID Administrative and Financial Regulations. Available at: https://icsid.worldbank.org/sites/default/files/ICSID%20Convention%20English.pdf.
[13] Registration and pending cases of the ICSID. Available at: https://icsid.worldbank.org/cases/pending.
[14] See supra note 11.
[15] Arbitration Rule 32(2) reads "Unless either party objects, the Tribunal, after consultation with the Secretary-General, may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings, subject to appropriate logistical arrangements. The Tribunal shall for such cases establish procedures for the protection of proprietary or privileged information."
[16] Nathalie Bernasconi-Osterwalder & Lise Johnson: Transparency in Dispute Settlement Processes: Country best practices, International Institute of Sustainable Development. IISD Best Practice Series 2011. Vol. 2 pp 8.
[17] See Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A., v. Argentina, Order in Response to a petition for Transparency and Participation as Amicus Curiae, ICSID Case No. ARB/03/19 (May 19, 2005), para. 16. The tribunal concluded that Article 44 of the ICSID Convention, which grants the tribunal residual power to decide procedural questions, granted it the power to admit amicus curiae briefs from suitable non-parties in appropriate cases. Available at: https://www.italaw.com/sites/default/files/case-documents/ita0816.pdf.
[18] Rule 37, ICSID Rules of Procedure for Arbitration proceedings. Available at: https://icsid.worldbank.org/sites/default/files/ICSID%20Convention%20English.pdf.
[19] Not always true. Even if ICSID allows third parties under Rule 37, it does not render those proceedings "public" in the sense of being transparent. The tribunal may limit third party's participation; may accept the brief but decline a record. For example, tribunal may deny requested information on grounds that the third party has failed to justify grounds on which it should receive that information, that it is already publicly available, or that it is privileged. See, Glamis Gold Ltd. V. U.S., Award, paras 106, 121 (June 8, 2009) and Suez v. Argentine, ICSID case No. ARB/03/19, Order to Response to a Petition for Transparency and Participation as Amicus Curiae (May 19, 2005).
[20] Supra note 17.
[21] Rule 48(4) ICSID Arbitration Rules; Article 53(3) Additional Facility Rules.
[22] Article 7 UNCITRAL Rules on Transparency in Treaty based Investor-state Arbitration. Available at: https://www.uncitral.org/pdf/english/texts/arbitration/rules-on-transparency/Rules-on-Trans-parency-E.pdf.
[23] Ibid, Article 1.
[24] Rule 63(1), ICSID Arbitration Rule Amendment Proposal, Working Paper 4. Available at: https://icsid.worldbank.org/sites/default/files/amendments/WP_4_Vol_1_En.pdf.
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[25] Ibid.
[26] Rule 64(2), ICSID Arbitration Rule Amendment Proposal, Working Paper 4 (08.09.2020)
https://icsid.worldbank.org/sites/default/files/amendments/WP_4_Vol_1_En.pdf.
[27] Gerold Zeiler: Jurisdiction, Competence, and Admissibility of Claims in ICSID Arbitration Proceedings. In: (Christina Binder et al eds.): International Investment Law for the 21st Century: Essays in Honor of Christoph Schreuer, Oxford Publishing, Oxford 2009 pp 78.
[28] Ibid.
[29] Article 41(1) of ICSID Convention reads: "The Tribunal shall be the judge of its own competence".
[30] Nigel Blackaby et al: Guide to ICSID Arbitration. Kluwer Law International 2004. Vol. 2 pp 85. Furthermore, see Gionvanni Alemani and Others v. Argentine, ICSID Case No. ARB/07/8, Decision on Jurisdiction and Admissibility, 17 Nov. 2014, para 259.
[31] Christopher Schreuer: The ICSID Convention: A Commentary. Cambridge University Press 2001, Article 41, para 49.
[32] Supra, note 26.
[33] Ibid, pp 79.
[34] William Park: Arbitration of International Business Disputes. Oxford University Press 2006 pp 77.
[35] Waste Management, Inc v United Mexican States, ICSID Case No. ARB(AF)/98/2, Award, 2 June 2000, Dissenting Opinion K. Highet, para 58.
[36] Margaret L. Moses: The Principles and Practices of International Commercial Arbitration. Cambridge University Press 2017 pp 261.
[37] Ibid
[38] Trakman: pp 275.
[39] Ibid, pp 276.
[40] Moses: pp 257.
[41] Choh-Ming Lim et al: International Investment Law and Arbitration, Commentary, Awards and other Materials. Cambridge University Press 2018 pp 349.
[42] As Emmanual Gaillard named it in "Investment Treaty Arbitration and Jurisdiction over Contract Claims", 344-345, in Todd Weiler ed., International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law, Cameron May Publishing, 2005.
[43] See supra note 40 at 350.
[44] Siemans A.G. v. The Argentine Republic ICSID Case No. ARB/02/8, Award, 75-76, 17 Jan. 2007.
[45] See supra note 39 pp 351.
[46] SGS Société Générale de Surveillance v. Pakistan, ICSID Case No. ARB/01/13, 2002. https://www.italaw.com/cases/1009.
[47] Article 11 of Switzerland - Pakistan BIT. Available at: https://investmentpolicy.unctad.org/inter-national-investment-agreements/treaty-files/2130/download.
[48] SGS Société Générale de Surveillance v. Pakistan, ICSID Case No. ARB/01/13, Decision on Objections to Jurisdiction, para. 166, 6 Aug. 2003. https://www.italaw.com/sites/default/files/case-documents/ita0779.pdf.
[49] Ibid, para. 173.
[50] SGS Société Générale de Surveillance v. Philippines, ICSID Case No. ARB/02/6, 2004.
https://www.italaw.com/cases/1018.
[51] Article X(2) of Switzerland - Philippines BIT. Available at: https://investmentpolicy.unctad.org/international-investment-agreements/trea-ty-files/2174/download.
[52] SGS Société Générale de Surveillance v. Philippines, ICSID Case No. ARB/02/6. Decision on Objection to the Jurisdiction, para. 115, 29 Jan. 2004, https://www.italaw.com/sites/default/files/case-documents/ita0782.pdf. See further El Paso Energy International Co. v. Argentine, ICSID Case No. ARB/03/15, Decision on Objection to Jurisdiction, para.77: "... as a result of the umbrella clause in BIT, the smallest obligation of a State with regard investment was protected by the BIT and could give rise to an ICSID obligation."
[53] Ibid, para. 116.
[54] Eureko B.V. v. Poland, Dissenting opinion, para. 11, 19 Aug. 2005. Available at: https://www.italaw.com/sites/default/files/case-documents/ita0307_0.pdf.
[55] Florian Grisel: The Sources of Foreign Investment Law. In: (Douglas et al eds.: The Foundations of International Investment Law: Bringing Theory into Practice): Oxford University Press 2014 pp 223.
[56] Stephan W. Schill: Deference in Investment Treaty Arbitration: Re-conceptualizing the Standard of Review. J. Int'l Disp. Settlement 2012 Vol. 3 pp 577, 606. See also Stephan Schill: Ordering Paradigms in International Investment Law: Bilateralism - Multilateralism - Multilateralization. In: (Douglas et al eds.): The Foundations of International Investment Law: Bringing Theory into Practice. Oxford University Press 2014 pp 109.
[57] Thomas Schultz: Against Consistency in Investment Arbitration. In: (Douglas et al eds.): The Foundations of International Investment Law: Bringing Theory into Practice. Oxford University Press 2014 pp 297.
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[58] Ibid pp 316.
[59] UNCTAD, International Investment Treaty Navigator. Available at: https://investmentpolicy.unctad.org/interna-tional-investment-agreements.
[60] See supra notes 43, 47.
[61] Mark Feldman: Investment Arbitration Appellate Mechanism Options: Consistency, Accuracy, and Balance of Power. ICSID Review 2016. Peking University School of Transnational Law Research Paper No. 16-2, Available at SSRN: https://ssrn.com/abstract=2713168.
Lábjegyzetek:
[1] The Author is PhD Student, Geza Marton Doctoral School of Legal Studies, University of Debrecen.
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