Emilio Augustin Maffezini v. Kingdom of Spain and the ICSID Secretary-General's Screening Power

Abstract

WHILST IT is a truism to state that arbitration requires consent, it has been established for some years that a claimant need not have a contractual relationship with the respondent to initiate arbitral proceedings. One well-known arbitrator referred to a new territory for international arbitration waiting to be discovered1 as a result of the ever increasing network of multilateral and bilateral investment treaties (BITs)2 and national investment laws pursuant to which an investor may initiate arbitral proceedings.3 Arbitration without privity has been confirmed in a number of ICSID decisions in recent years.4 The Report of the Executive Directors of the World Bank on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States stated in 1965: > a host State might in its investment promotion legislation offer to submit disputes arising under certain classes of investments to the jurisdiction of the Centre and the investor might give his consent thereto in writing. Consent to arbitration may therefore be by reference to investment laws and/or bilateral investment treaties. A whole new continent may now have been discovered following the decision of Emilio Augustin Maffezini v. Kingdom of Spain ,5 although it may be some considerable time before its contours are mapped and charted.6 The Maffezini decision confirms that as a result of a ‘most favoured nation’ (MFN) clause, a claimant has the right to rely on the terms of a consent to ICSID's jurisdiction contained in other BITs. It remains to be seen how the ‘gatekeeper’ of ICSID, the Secretary-General, will exercise his power to ‘screen’ requests pursuant to the ICSID Convention and ICSID's Additional Facility Rules based on an MFN clause. ICSID is a part of the International Bank for Reconstruction and Development (‘the World Bank’). The purpose of the …