Icsid Jurisdiction with Regard to State-Owned Enterprises – Moving Toward an Approach Based on General International Law

Abstract

The decision of the ad hoc Committee in the case Tulip Real Estate v. Turkey of 2015 represents a new development in the methods applied by icsid tribunals to ascertain their own jurisdiction when the acts giving rise to the investor’s claim have been undertaken by a State-owned entity. Indeed, prior to this case, different views and trends had arisen over the years: some tribunals have addressed this matter by narrowing their field of analysis to the formal requirements of the claim, while others have focused on the issue of implicit designation. Lastly, there has been a growing trend, starting in 2009 with the case Toto Costruzioni v. Lebanon, where arbitrators have applied the rules on attribution at the jurisdictional stage. This last group of cases suggests that those arbitrators were developing an approach closer to that of general international law. The Tulip Real Estate v. Turkey Committee was the first annulment panel to comment on this latest development, although they commented without expressing much enthusiasm for it. The present article will focus on the issue of establishing an icsid tribunal’s jurisdiction when a State entity is involved in the proceedings, in order to cast some light on the rules that a tribunal should apply when deciding whether a dispute between the foreign investor and a State entity falls within its remit.