A taster Class of Investment Treaty Arbitration Presented by: Professor Loukas Mistelis Infrastructure - - International instruments • Multilateral Treaties, e.g. ICSID, Energy Charter, CPTPP • Bilateral Treaties, e.g. BITS; FTA • Instruments, e.g. UNCITRAL Rules, ICSID Additional Facility, ICC Rules National laws • Investment protection laws • Trade policy documents • Constitutional law implication ICSID General - Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965 - • ICSID Convention • Washington Convention Entered into force 14 October 1966 • Large international membership, including several "rogue states" Qualification - Arbitration only available if • Dispute involves a state party OR • A state designated agency - Only investors of Member States can use ICSID Mechanism - Public International Law of State Responsibility Increased Case Load - - Marked increase in number of cases • 525 concluded cases • 265 pending cases Even current figures do not fully reflect the significant number of States that have included reference to the ICSID mechanism • In Bilateral Investment Treaties or • National legislation • What of the future? Conciliation Option - - - ICSID Convention Chapter III • Parties can apply to Secretary-General seeking conciliation proceedings • Include nature of dispute and consent or parties Conciliation Commission • One or three or uneven number • Absent any agreement three members shall be appointed Not final and binding and information cannot be used in any subsequent arbitration/litigation ICSID Jurisdiction - Article 25 Washington Convention • "...any legal dispute arising directly out of an investment, between a Contracting State...and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre." - Legal Dispute and Investment not defined in Convention Autonomous Regime - Article 53 Washington Convention • “(1) The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award...” - Article 54 Washington Convention • Contracting States will recognize an award as if it was a final judgment of a court in that State BIT - What is it? - An international treaty between two countries - Creating binding legal (public international law) obligations - Providing for a dispute settlement mechanism - Promoting foreign direct investment (FDI) and providing certain protection to foreign investors • Protection in respect of expropriation, also MFN and non- discriminatory treatment