Context Of Investment Arbitration Research Articles

Counterclaims in Investment Arbitration: Towards an Integrated Approach

Abstract It is widely accepted that counterclaims may not be used as a means to exceed the limits of a tribunal’s jurisdiction, while they must at the same time be closely connected to the other party’s claim. However, in the particular context of investment arbitration, these two propositions create a tension that has led to a problematic and unfair construction of the investor-State dispute settlement mechanism. This article explores the foundations for a better, more integrated approach. It argues that jurisdiction over counterclaims should be seen as incidental to the one already established over the original claim, allowing tribunals to hear a wider range of counterclaims. This is inherent to the exercise of a tribunal’s adjudicative function, and rests on a foundation not only of implied consent, but also on one of principle. The approach presented here has the potential to protect counterclaims as a matter of procedural fairness and to address some of the reasons for the backlash against international investment arbitration law.

The Duty of Disclosure of International Arbitrators

The duty of disclosure that falls to investment arbitrators currently presents a significant number of contentious aspects. Many ICSID challenges have addressed issues such as the formal aspects and content of the statement of impartiality and independence, as well as the scope of this duty and the applicable disclosure standards. A detailed analysis of the decisions resulting from these challenges leads to the conclusion that the unchallenged co-arbitrators, who are in most cases responsible for settling challenges brought by parties, may have sometimes erred on the side of leniency when judging their colleagues’ actions or omissions in connection with the duty of disclosure. In practice, the very wording of ICSID provisions and a sense of endogamy among the somewhat limited group of arbitrators are two factors that have prevented breaches of this duty from being sanctioned with disqualification. This chapter sets out and argues for a series of regulatory reforms that seek a firmer reshaping of the profile of the duty of disclosure within the context of investment arbitration (e.g., improving formal aspects of the statement of impartiality and independence and making changes to the drafting of ICSID Rule 6(2)b, as well as various suggestions concerning the timing, celerity and addressees of the duty of disclosure). The chapter also contains detailed reflections on two closely connected issues: the importance of having access to a reliable CV for each investment arbitrator and the arbitrators’ duty to investigate. A recurrent underlying theme is the role that traditional arbitral institutions or new stakeholders such as the Multilateral Investment Court (MIC) should adopt vis-a-vis the adjudicators’ duty of disclosure in the investment milieu.

Publication of Investment Treaty Awards: The Qualified Potential of Domestic Access to Information Laws

Investment treaties and arbitral rules traditionally impose few legally binding duties on States to release investment treaty awards. Despite this, possibly in light of the growing recognition of a human right of access to public information, recent efforts towards transparency in investment arbitration proceedings have led to significant changes in both legal instruments and State practice. However, many States remain reluctant to commit to transparency obligations, or to comply with transparency obligations where they already exist. This article reviews the utility of one lesserknown tool, domestic freedom of information (FOI) laws, in promoting transparency in the particular context of investment arbitration. The article focuses on the Republic of Poland, a State known to be holding a sizeable number of unpublished investment treaty awards. The Polish experience discussed in this article suggests that, despite the many problems encountered, domestic FOI laws do have the potential, even if qualified, to constitute a factor in the growing trend towards transparency.

On the Use and Abuse of Necessity in the Law of State Responsibility

Necessity,necessità,is Machiavelli’s guiding principle . . . that infringing the moral law is justified when it is necessary.Thus is inaugurated the dualism of modern political culture, which simultaneously upholds absolute and relative standards of value. The modern state appeals to morality, to religion, and to natural law as the ideological foundation for its existence. At the same time it is prepared to infringe any or all of these in the interest of self-preservation.—J. M. CoetzeeRecent jurisprudence in investment arbitration, almost all of which originated in disputes arising out of Argentina’s turn-of-the-century fiscal crisis, has raised difficult questions about the existence, nature, and advisability of necessity as a defense to state responsibility. The jurisprudence has contributed to a sophisticated literature focusing on necessity’s role in the special context of investment arbitration. But the growing prominence of necessity pleas in international law has not been so limited. Nor will its effects be. In the first place, investor-state arbitral jurisprudence contributes to the evolution of general international law. Investment tribunals invoke the latter, for example, to inform their interpretation of bilateral investment treaties (BITs) or to cure lacunae in the law. More significantly, beyond the realm of investment arbitration, the past few decades have seen a striking growth in necessity pleas in fields ranging widely across the landscape of international law.

Are Amici Curiae the Proper Response to the Public's Concerns on Transparency in Investment Arbitration?

AbstractIn the context of investment arbitration, amici curiae have for a long time been quite unheard of. This can easily be explained by the privacy of international arbitration, which implies that only directly involved parties can participate in the proceedings. Several recent decisions have, however, brought renewed attention to the issue of amici curiae intervention in investment arbitration.