Nationals Of Other States Research Articles

Deciding The Provisional Measures Regarding the Suspension of Criminal Procedure by International Centre for Settlement of Investment Disputes (ICSID)

The Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (hereafter referred to as the Convention), as well as the International Centre for Settlement of Investment Disputes (ICSID) was established within the framework of the Convention, aims to resolve disputes encountered in international investments in a prompt and facilitated manner under an independent credible judicial mechanism. ICSID tribunals can order provisional measures in a dispute presented before them to protect the parties’ mutual rights as mentioned in Article 47 of the Convention. The raison d’être for these measures is to ensure the integrity of the proceedings and exclusivity of the ICSID arbitration by preserving the status quo and preventing aggravation of the dispute. However, no explicit statement occurs in the Convention which suggests that the possibility of rendering a decision regarding provisional measures against a national criminal proceeding. Criminal proceedings are perhaps the most indisputable component of state sovereignty. Hence, the tribunals acknowledge a high threshold shall be required to justify an intervention in national criminal proceedings. Therefore, any intervention related to criminal proceedings that conflict with the sovereignty of a state authority should be evaluated case by case and kept at a minimum. In this context, the current paper will address the provisional measures that are orderable by ICSID tribunals, the impact these measures have on pending criminal proceedings in domestic law. ICSID’s authority to impose sanctions on state parties if they do not comply with the measures in relation to the criminal proceedings. In addition, the article will evaluate requests for provisional measures to comprehend whether or not they intervene in the sovereign authority of a state party. We should also point out that, arbitration is a multidisciplinary subject, it has connections with International law, Constitution and other legal disciplines. However, the issue will only be handled within the scope of ICSID and criminal procedure.

Deconstructing Turkcell V Iran: The First Investment Treaty Claim against Iran

Once an arbitral tribunal is constituted, the preliminary issue to be decided is the question of jurisdiction and admissibility of the claim. At the pre-merit stage, the tribunal determines whether it has jurisdiction over the disputes to proceed with the substantive issues. In investment arbitration, the jurisdictional requirements are contained in bilateral investment treaties (BITs) and the 1966 Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention) and municipal laws. This article critically analyses the first BIT claim against Iran by reconstructing the Turkcell arbitration case. The Turkcell case concerned complex questions of Iranian and international law concerning the jurisdiction of an arbitral tribunal over investment activities. The Turkcell case highlights the important issue of interpretation of treaty provisions concerning the definition of investment (ratione materiae) and investors (ratione personae).

Article: Intra-EU BITs and Achmea: On a Collision Course With Strasbourg?

The lecture discussed whether an European Union (‘EU’) Member State’s national court’s refusal to recognize and/or enforce a valid claim in the form of a final intra-EU arbitration award on the basis of the Court of Justice of the EU’s (CJEU’s) decision in Slowakische Republik v. Achmea BV and its progeny may infringe the right to the peaceful enjoyment of possessions, guaranteed by Article 1 of Protocol No. 1 of the European Convention Human Rights (ECHR). It sets out the legal analysis that the European Court of Human Rights might apply in assessing that issue, and the interaction between EU Member States’ obligations under the ECHR, EU law and the Convention on the Settlement of Investment Disputes between states and Nationals of Other States.

Equitable representation on international benches and the appointment of tribunal members in investor–State dispute settlement: a historical perspective

Abstract The lack of diversity in the appointment of tribunal members in investment arbitration has long been subject to criticism. This article analyses the design of adjudicator appointment mechanisms and challenges the mainstream view that investment arbitration is modelled after the structures and procedures of commercial arbitration. Instead, drafters of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention) largely drew inspiration from the Permanent Court of Arbitration and the International Court of Justice. Following this institutional pedigree, the development of the equitable representation requirement is linked to the growing appreciation of the public aspects of the international judicial function. Nevertheless, drafters adopted Article 14(2) of the ICSID Convention mainly to facilitate the performance of the private function of dispute resolution. Through the historical lens, controversies surrounding different approaches for addressing diversity concerns in the ongoing investor–State dispute settlement reform are essentially surface products of deeper disagreements on the private and public aspects of the judicial function.

DEFINITION OF THE NOTION OF «INVESTMENT» UNDER THE 1965 CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES BETWEEN STATES AND NATIONALS OF OTHER STATES

The article analyzes scientific and the International Center for Settlement of Investment Disputes’ practical approaches to the interpretation of the notion of «investment» enshrined in the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The necessity of the research is due to, on the one hand, the absence of a unified, generally accepted definition of the notion of «investment», and, on the other hand, its role in resolving the issue of the jurisdiction of the International Center for Settlement of Investment Disputes over the resolution of international investment disputes. This issue is becoming increasingly relevant, given the steady economic and rapid technological development, which contributes to the emergence of new types of assets, in particular crypto assets. These latter may become the subject matter of an international investment dispute. Considerable attention has already been paid to this issue in a foreign legal opinion, whereas domestic science lacks research in this realm, which also indicates the relevance of this study. The article focuses on two main approaches, which are used by the International Center for Settlement of Investment Disputes while interpreting the notion of «investment». It is stated that the first approach, known in the English-language literature as the «double- barrelled test», lies in conducting a double study of the notion of «investment» by an arbitration panel – in accordance with a definition proposed by an international investment agreement, and in accordance with the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The second approach implies the direct appeal of arbitration panels to a term «investment», agreed by the States Parties to a relevant bilateral investment treaty. It is established that each of these approaches has certain advantages and disadvantages, the analysis of which allowed the author to offer recommendations on the merging of specified approaches in the process of defining the notion of «investment».

Государственные компании как истцы согласно Вашингтонской конвенции 1965 года о порядке разрешения инвестиционных споров между государствами и иностранными лицами

In this article, the author examines the status of state-owned companies as claimants under the 1965 Washington Convention on the settlement of investment disputes between States and nationals of other States and the competence of the International Centre for Settlement of Investment Disputes to consider claims of the stateowned companies. The paper considers possible limitations of the right of action of the state-owned companies, reflected in the so-called “Broches test”. As a result of the analysis of the case law of international investment tribunals the author concludes that the right of recourse to international investment arbitration shall in any case be available for the state-owned companies which perform a commercial function. In addition, the author proposes an algorithm for determining whether a state-owned company, which is authorized to exercise elements of state power, has the right of action.

International Committee of Red Cross versus International Red Crescent: The Recent Practices as Subject International Law

The International Red Cross has different characteristics so that in its development, this organization is accepted as one of the subjects of international law. However, the International Red Cross has limitations in the subject of law. International treaties such as the 1949 Red Cross Conventions provide certain rights and obligations. The rights and obligations are given by the convention indirectly to individuals through the country that is a participant in the convention. Through such construction, many individual circumstances or events that are subject to international law based on a convention can be returned to the countries that are participants in such a convention, namely the Convention on the Settlement of Investment Disputes between States and Nationals of Other States and The European Convention on Human Rights. This study analyzes recent developments regarding the International Red Cross as a subject of international law. This study also analyzes the position of the International Red Crescent as one of the subjects of international law in practice.

The Judicial Function of Investment Tribunals: Taking Foundational Assumptions Seriously

ABSTRACT The proliferation of international courts and tribunals has given rise to debates about the judicial function beyond dispute settlement. These debates provide a broader context to study investment tribunals, especially when various conceptions of their judicial function are articulated in the ongoing reform process at United Nations Commission on International Trade Law Working Group III on investor–state dispute settlement. The current reform debate is largely driven by problems and issues that emerged in the contemporary practice of investment arbitration. However, the original balance that the founders of the system intended to strike receives much less attention. This paper focuses on the founders’ original assumptions about the judicial function of investment tribunals. It addresses the drafting process of selected key institutional features of investment arbitration established by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The key claim is that the drafters’ conception of the judicial function was consciously narrow, without carrying major assumptions about public functions. This original view is in marked contrast with certain broader conceptions developed in subsequent arbitral practice. The rationales underpinning the original institutional design choices can also inform the ongoing institutional reform where similar tensions and issues re-emerge.

Mass claims in international investment arbitration

Following the economic crisis in Argentina international investment tribunals faced a new challenge: mass claims characterized with multiple claimants bringing the significant amount of homogeneous investment protection claims against the host state. Neither the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, nor applicable bilateral investment treaties cover the tribunals’ power to resolve mass claims. They are silent on crucial questions of jurisdiction and consent and do not address important procedural issues either. In these circumstances arbitral tribunals face the inevitablegap-filling process, which boils down to the critically important question of legal nature of mass claims. If mass claims are nothing more than a mere variety of “ordinary” claims, than the issues of special or “secondary” consent are irrelevant, since the general consent for arbitration will suffice for the tribunal to find itself competent to resolve the dispute. By contrast, if mass claims are different in their legal nature from “ordinary” bi- or multiparty arbitration, they cannot “fit” into the scope of parties’ general consent. In controversial Abaclat decision the majority ruled that the questions of tribunal’s powers to decide on mass claim brought by Italian investors against Argentina pertain to the sphere of admissibility rather than jurisdiction. This analysis was not accepted by dissenting arbitrator G. Abi-Saab. Interestingly, other multi-party “Argentinian” awards followed the line of argument which significantly differed from both the majority opinion in Abaclat and G. Abi-Saab’s dissent. This only highlights the controversial nature of mass claims in international investment arbitration. This article is dedicated to analysis of jurisdictional issues raised in the course of “Argentinian” arbitrations. Since this analysis is strongly intertwined with two other systems of resolution of mass claims, namely American class arbitration and public international law mechanisms dealing with the compensations for states’ international wrongdoings, these two mechanisms are also explored to provide better context and understanding.

System in progress: applicable law and the icsid Convention

The legal norms that govern the applicable law to disputes submitted to the International Centre for the Settlement of Investment Disputes (ICSID) can be considered a system in progress. Although the rule contained in Article 42(1) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, signed in Washington in 1969, seems simple, case law and scholarship on the subject has been through recent transformation, including the role of international law and the power of the Tribunal to determine the applicable law. This article will address the most relevant aspects on the issues pertaining to conflict of laws in the ICSID environment, including the role of party autonomy and its limitations, and the interaction between municipal and international law in the determination of the law applicable to an Investor-State arbitration under the auspices of ICSID. Investor-State arbitration; private international law; party autonomy.

Dual Nationality of a Private Investor in Investment Treaty Arbitration: A Potential Barrier to the Exercise of Jurisdiction Ratione Personae?

Abstract One of the fundamental objectives of international investment agreements (IIAs) is to protect the rights and interests of foreign investors in the territory of a contracting State. Why, then, have tribunals often exercised jurisdiction ratione personae over the claims of dual nationals against their own State? The answer lies in the silence of IIAs on the matter of dual nationals. Such agreements have failed expressly to mention dual nationals in their definitions of ‘investor’ or ‘national’, which has created lacunae that are open to interpretation. Tribunals have often fallen back on international law to fill these gaps and accurately to determine the nationality of an investor’s claims. They have taken into consideration the text of the IIAs, the text of institutional rules and the general principles of international law. The principle of ‘dominant and effective nationality’, as propounded in the Nottebohm case, has made frequent appearances in such interpretation processes. However, the application of this principle has been inconsistent over time, with different tribunals taking different stances. In this article, the author traces this varied approaches of tribunals. In doing so, he analyses the text of and the awards delivered in disputes arising out of the Algiers Declaration, the North American Free Trade Agreement (NAFTA), the United States–Mexico–Canada Agreement (USMCA), the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), the Dominican Republic–Central America Free Trade Agreement (DR-CAFTA), the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules and various bilateral investment treaties (BITs). Based on this analysis, the author proposes several changes that States should consider in the future negotiation of BITs to restrict a claim by a dual national against its State of nationality.

Kriterijum kontrole i pravo pravnog lica da se javi kao tužilac u arbitraži pod okriljem IKSID

International Centre for Settlement of Investment Disputes (Centre or ICSID) was established for resolving disputes between foreign investors and host States. This is why jurisdiction ratione personae of the Centre depends crucially on who can be considered as a foreign investor, i.e. which persons have right of standing to initiate arbitration based on the Washington Convention on the Settlement of Investment Disputes between States and Nationals of other States (the Convention). When a claimant is a juridical person, one of the issues causing a debate in arbitral practice concerns the significance of control over that entity - to what extant is jurisdiction of an ICSID tribunal affected by the fact that the entity is under direct or indirect control of the host State's nationals. The paper examines the problem with regards two groups of cases that the Convention regulates separately. The first group concerns cases in which the role of a claimant belongs to juridical persons nominally holding the nationality of other Contracting States of the Convention. The other category relates to the cases of claims submitted by local entities controlled by foreign investors against their own State.

Role of Actors and Factors for the Emergence of Contemporary Regime of Investor-State Dispute Settlement

Dispute resolution mechanism happened to be the fundamental aspect of the protectionist discourse of foreign investment. The consistent efforts were rolled out on behalf of international economic organizations such as UNO, OECD and IBRD of World Bank Group for the establishment of an impartial forum for the settlement of investment disputes. The opposite approaches of capital-exporting developed economies and less developed recipients of foreign capital lead certain attempts to failure to build consensus for dispute resolution mechanism relating to foreign investments. The World Bank started its effort for a specialized forum for investor-state dispute settlements in 1961. This effort remained successful in building consensus for exclusive jurisdiction for investment disputes. The members of the World Bank Group adopted the international convention on the settlement of investment disputes between states and nationals of other states, 1965, i.e. ICSID Convention. The paper has concluded that the efforts of international organizations and the large-scale recognition of the ICSID mechanism have ensured the legitimacy of the system.

Enforcement of Investment Court Decisions under the New York Convention: A Search for Defining Elements

This paper explores whether a decision rendered by an international investment court or similar body would be enforceable in the courts of third States as a ‘foreign arbitral award’, pursuant to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. After asserting the premise that an investment court would be harmonious with States’ existing obligations under the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), this paper reviews salient aspects of the New York Convention’s travaux preparatoires, and its use to enforce the decisions of bodies that challenge assumptions concerning what features make an award ‘foreign’ and ‘arbitral’. The paper then charts a new path by gauging the meaning of ‘arbitration’ in international economic law, in light of its widely ratified usage decades later in the distinctive arbitral procedures of the World Trade Organization (WTO). Drawing from this variety of contexts, the paper concludes by linking the interim arbitration mechanism adopted by some WTO members in April 2020 to the institutional body that may yet emerge from UN Commission on International Trade Law (UNCITRAL) negotiations on the reform of investor-State dispute settlement (ISDS).

North Korean Legal Systems Regarding Foreign Investment

This article reviews up-to-date North Korean laws regarding foreign investment. The legislative intricacy of North Korea has been largely influenced by China. North Korea has enacted significant economic legislation to attract foreign investors, which mirrors similar Chinese laws. Since 2011, North Korea made significant amendments to laws on foreign investment and noticeable revisions on special economic zones. The Foreign Investment Act, the Wholly Foreign-Owned Enterprise Act and the Land Lease Act were revised in 2011. With respect to special economic zones, the Rason Economic and Trade Zone Act, as well as the Kumgang International Tourism Zone Act and the Hwanggumpyong-Wihwado Economic Zone Act, were revised in 2011. In 2014, the Equity Joint Venture Act, the Contractual Joint Venture Act and the Foreign Economic Arbitration Act was revised. In 2015, the Foreign-Invested Company and Foreign Person Tax Act was revised. The North Korean Socialist Constitution revised in 2019 emphasized the importance of credit in foreign trade and the principle of equality and reciprocity. It is essential and demanded for North Korea to join the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and the ICSID Convention (Convention on the settlement of investment disputes between States and nationals of other States) to protect foreign investors’ legal rights.

Do the SALINI Criteria apply to the Definition of an Investment provided in Annex 1 of the 2006 and 2016 SADC Protocol on Finance and Investment? An Assessment

An investment is the subject matter of an investor-state dispute. Therefore there can be no such dispute if there is no investment to which the dispute relates. The challenge in this regard lies in that there is no uniform definition of an investment in international economic law, and with regard to investor-state disputes in particular. Bilateral Treaty Agreements (BITs), Treaties with Investment Provisions (TIPs), investment contracts and legislation provide different definitions of an investment. However, these definitions are not always final or sufficient, since there are different methods of assessing the existence of an investment, depending on the applicable arbitration rules. Arbitration tribunals formed in terms of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965 (ICSID Convention) follow a two-step process, which starts with a consideration of the definition of an investment in terms of the underlying regulatory instrument, followed by a consideration of the provisions of Article 25(1) of the ICSID Convention. Salini Construttori S.P.A and Italstrade S.P.A v Kingdom of Morocco is a landmark ICSID case that proposed the criteria that an investment must meet. On the other hand, investor-state arbitrations based on the UNCITRAL Rules Arbitration or other non-ICSID rules consider the definition of an investment provided in a regulatory instrument only. However, the tribunal in Romak S.A (Switzerland) v Republic of Uzbekistan held that the Salini criteria are applicable to UNCITRAL arbitration, and by implication, other non-CSID arbitrations. The 2006 Annex 1 of the SADC Protocol on Finance and Investments (SADC FIP) defines an investment as any asset group, while the 2016 Annex 1 defines an investment as an incorporated enterprise. Furthermore, the 2006 Annex 1 refers disputes to ICSID or UNCITRAL arbitration, while the 2016 Annex 1 refers disputes to the courts of host states. This article explores the responses of selected tribunals to the Salini criteria. It seeks to determine whether the Salini criteria can be applied to the 2006 and/or 2016 Annex 1, and if so, what the implications thereof are to the scope of investments that can be covered by these instruments.

CONVENIO SOBRE ARREGLO DE DIFERENCIAS RELATIVAS A INVERSIONES ENTRE ESTADOS Y NACIONALES DE OTROS ESTADOS (CIADI)

El artículo explica el funcionamiento del Centro Internacional de Arreglo deDiferencias Relativas a Inversiones entre Estados y nacionales de otros Estados, teniendo encuenta la importancia de dicho centro en la solución de conflictos hoy en día en el Perú.

ICSID Hakem Kararlarının Iptali

The legal remedies against an award granted by an arbitral tribunal in international investment arbitration pursuant the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“ICSID”) are regulated in the fifth section of the mentioned Convention. Annulment procedure against an award is stated as one of these legal remedies. During this study, firstly, general information about annulment procedure of an award will be presented. In this part, the application process for annulment of an award will be explained. The grounds for annulment will be analyzed in the second part of the study. While analyzing the grounds for annulment, focus will be given to manifest excess of powers, serious departure from a fundamental rule of procedure and failure to state reasons by examining the precedent annulment decisions and commentaries of scholars. Regarding this part, the study will attempt to puzzle out the meaning of the terms of “manifest”, “serious”, “fundamental” and “failure”. The subheading for the ground of the improper constitution of the tribunal will include information about the proper constitution of an arbitral tribunal, thus making it clear how to abstain from giving cause for annulment due to this ground. The remaining ground for annulment, i.e. corruption by a member of the tribunal, due to lack of case law, will mainly give attention to the term corruption. Lastly, the corollaries of an application for annulment will be stated in the final part of the study.

Yatırım Uyuşmazlıklarının ICSID Arabuluculuk Kurallarına İstinaden Çözümü

<span style="color: rgb(0, 0, 0);">The purpose of the Center established by the ICSID Convention, is to facilitate the settlement of investment disputes through conciliation and arbitration mechanisms under Article 1 of the Convention. Related with the mentioned purpose, in this article, the resolution of investment disputes has been analyzed in the light of “ICSID Conciliation Rules” of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID). Including the conciliation procedure prescribed in ICSID Conciliation Rules, the corner stone of this article constituted under the conciliation process as an amicable settlement method. Conciliation, where an investment dispute is involved, is often an alternative solution to the arbitral proceedings. As of many aspects, conciliation can be as effective as an arbitration in order to achieve a consensus via eliminating the disadvantageous features of arbitral proceedings thanks to its more flexible structure. Whether the binding feature of the “conciliator report” at the end of the process is one of the most important factors in the choice of this method. Conciliation should not be seen as an advisory process merely. Within the framework of this article, the characteristics of conciliation process has been examined considering the opposite opinions that advocate the a nonfunctionality and nonbinding effect of conciliation.</span>

Dual nationality revisited: a modern approach to dual nationals in non-ICSID arbitrations

Abstract The authors revisit the vexed question of the standing of investors to bring a claim against one of their states of origin. Contrary to Article 25 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), which forbids natural persons in possession of the nationality of the host state to initiate proceedings against it, the majority of other arbitration rules do not provide for such a prohibition. Consequently, unlike the realm of diplomatic protection, where the question seems settled, there is little guidance in the treaty-based field of investment arbitration on the probable scenario of a dual national suing one of its states of nationality in a non-ICSID arbitration context. Some tribunals have resorted to traditional principles to deny investment protection to dual nationals, whereas recent awards have been considerably more lenient. This article will demonstrate that, given the fundamental differences between investment treaty arbitration and diplomatic protection, the application by analogy of doctrinal formulations of the former to the latter is not warranted. Instead, a holistic interpretation in accordance with Article 31 of the Vienna Convention on the Law of Treaties should be the primary point of focus of international tribunals, taking into account the object and purpose of the treaty and comparable treaty practice.