Abuse of the Right to Access ICSID Arbitration

Abstract

In the last decade, the Tribunals of the International Centre for the Settlement of Investment Disputes (ICSID) have discussed the adoption of a new standard in assessing the jurisdictional requirements of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, in order to preserve the integrity of their own process, by introducing the general principle of the abuse of rights into the initiation of the ICSID arbitration process. This well-known principle of international law, along with other similar concepts such as good faith and abuse of process, has begun to play an important role at the jurisdictional stage of ICSID proceedings, largely due to the widely adopted practice of treaty shopping by investors who restructure their investments in order to gain access to the jurisdiction of ICSID tribunals. Although the exact parameters of the principle are not yet established, the practices of ICSID tribunals provide a useful road map for future cases.