Commentary: ICSID Proceedings in the Absence of a Bilateral Investment Treaty

Abstract

THE ARGUMENT you just heard was couched in terms of the substantive obligations imposed by the bilateral investment treaty in force between the State of Abyssinia and the United States. The question that I have been asked to address in my commentary is this: what if there were no BIT? How would the applicable law, and the applicable arguments, be different if this were an ICSID arbitration founded solely on the consent to ICSID arbitration in Abyssinia's municipal investment legislation and the investor's consent to submit the case to arbitration under the ICSID Convention? Before I begin, I should note that the comments that I'm about to give are in my capacity as a private citizen, and do not necessarily reflect the views of the United States Government or the US State Department. In fact, the US Government has never had occasion to develop any such views by participating in...