Abstract
The growth in the number of investment treaties and investment treaty arbitrations has led to a lively debate about the benefits, justification, and problems of this special form of protection for foreign investors. This chapter makes the positive case for understanding international investment law as an instrument for the depoliticization of conflicts that at times had led to fierce confrontations between home and host States of investors. Depoliticization means the transfer of such conflicts from the political arena of diplomatic protection to a judicial forum with objective, previously agreed standards and a pre-formulated dispute settlement process. First, this chapter addresses the goals of investment arbitration in this context. Second, it discusses the means provided for in the ICSID Convention and in investment protection treaties in their various forms to achieve these goals. Furthermore, it analyses how different investment protection instruments achieve different degrees of depoliticization. Third, it discusses whether investment treaties have been successful in providing judicial means to prevent investor-State conflicts developing into inter-State conflicts, which are dominated by power politics.
The paper was first published in the ICSID Review—Foreign Investment Law Journal, Volume 33, Issue 1, 1 February 2018, Pages 14–28, https://doi.org/10.1093/icsidreview/six026.
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Notes
- 1.
Lauterpacht (2011), p. 161.
- 2.
Lauterpacht (2011), p. 166.
- 3.
For a contribution looking at depoliticization from the perspective of whether the subjects before tribunals are of political importance see: Titi (2015).
- 4.
- 5.
Charter of the United Nations and Statute of the International Court of Justice (signed 26 June 1945, entered into force 24 October 1945) (UN Charter) see also n. 15, 16.
- 6.
Borchard (1927).
- 7.
- 8.
- 9.
- 10.
Convention on the Settlement of Investment Disputes between States and Nationals of Other States (opened for signature 18 March 1965, entered into force 14 October 1966) (ICSID Convention).
- 11.
Aron Broches, the General Counsel of the World Bank, pointed several times to the importance of depoliticization for the elaboration of the ICSID Convention.
- 12.
Broches (1972).
- 13.
Already Borchard E M (p. 305) has expressed the idea that arbitration would be advantageous for all three parties since it would be law and not politics that would determine the outcome: “Were this done, all three parties to the issue would be assured of the protection of law for the determination of its rights and for protection against unjust intervention, and the plaintiff state would be relieved from the pressure of politics inducing intervention, from the danger of war and from the charge of imperialisms and naked might.”
- 14.
Shihata (1986).
- 15.
Article 2, para. 4 of the UN Charter. “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state […].”
- 16.
Article 51 of the UN Charter. “Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken the measures necessary to maintain international peace and security.”
- 17.
Vandevelde (2009), p. 576.
- 18.
Vandevelde (2009), p. 577.
- 19.
Vandevelde (2009), p. 577 “[…] the 1983 model thus depoliticizes investment disputes and permits the U.S. government to conduct its foreign policy with considerably less interference from particular investors”; Vandevelde (2005–2006) “In providing the investor with a legal remedy that did not depend upon espousal, these BIT provisions depoliticized investment disputes. That is, they placed investment protection in the realm of law rather than politics.”
- 20.
Price (1999–2000).
- 21.
Maurer (2013).
- 22.
Republic of Ecuador v United States of America, PCA Case No 2012-5, Award (29 September 2012) para. 201 (quoting the US statement of defence).
- 23.
See Article 1 ILC Draft Articles on Diplomatic Protection, 2006, available at http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_8_2006.pdf.
- 24.
- 25.
Articles 14, 15 of the ILC Draft Articles on Diplomatic Protection (Maurer 2013).
- 26.
Borchard (1915), p. 354.
See also the finding of the Permanent Court of International Justice (PCIJ) in The Mavrommatis Palestine Concessions (Greece v Britain) Judgment (1924) P.C.I.J. Series A, no. 2, 12, which stated the following in this regard: “It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law.”
- 27.
Articles 1, 2 of the ILC Draft Articles on Diplomatic Protection, 2006 (Maurer 2013).
- 28.
Broches (1972), p. 344.
- 29.
Price (1999–2000), p. 427 also points to this fact “Investors also welcomed this development because it gave them the opportunity to seek redress without being held hostage to their own government’s political will or whim. The investor’s claim would be decided on the merits and would not be subsumed within a larger political or foreign relations dialogue between its government and the host government.”
- 30.
Article 27 ICSID Convention:
-
(1)
No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute.
-
(2)
Diplomatic protection, for the purposes of para. (1), shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.
-
(1)
- 31.
Banro American Resources, Inc. and Société Aurifère du Kivu et du Maniema S.A.R.L. v Democratic Republic of the Congo, ICSID Case No. ARB/98/7, Award (1 September 2000), para. 15.
- 32.
Banro American Resources, Inc. and Société Aurifère du Kivu et du Maniema S.A.R.L. v Democratic Republic of the Congo, ICSID Case No. ARB/98/7, Award (1 September 2000), para. 15.
- 33.
Banro American Resources, Inc. and Société Aurifère du Kivu et du Maniema S.A.R.L. v Democratic Republic of the Congo, ICSID Case No. ARB/98/7, Award (1 September 2000), para. 23.
- 34.
Banro American Resources, Inc. and Société Aurifère du Kivu et du Maniema S.A.R.L. v Democratic Republic of the Congo, ICSID Case No. ARB/98/7, Award (1 September 2000), para. 23.
- 35.
Banro American Resources, Inc. and Société Aurifère du Kivu et du Maniema S.A.R.L. v Democratic Republic of the Congo, ICSID Case No. ARB/98/7, Award (1 September 2000), paras 24, 25.
- 36.
Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy), Judgment, I.C.J. Reports 1989 (20 July 1989), para. 15.
- 37.
Article XXVI of the Treaty of Friendship, Commerce and Navigation Between the United States of America and The Italian Republic (signed 2 February 1948, entered into force 26 July 1949).
- 38.
Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments (signed 25 November 1959, entered into force 28 April, 1962).
Article 11:
-
(1)
In the event of disputes as to the interpretation or application of the present Treaty, the Parties shall enter into consultation for the purpose of finding a solution in a spirit of friendship.
-
(2)
If no such solution is forthcoming, the dispute shall be submitted
-
(a)
to the International Court of Justice if both Parties so agree or
-
(b)
if they do not so agree to an arbitration tribunal upon the request of either Party.
-
(a)
-
(1)
- 39.
Accordo tra il governo della repubblica italiana e il governo della repubblica del ciad per proteggere e favorire gli investimenti di capitali (signed and entered into force 11 June 1969) (Italy-Chad BIT) http://investmentpolicyhub.unctad.org/Download/TreatyFile/659.
- 40.
Article 7 Italy-Chad BIT:
Ogni controversia concernente gli investimenti, oggetto del presente Accordo, che potesse sorgere fra una delle Parti contraenti […] e una persona fisica o giuridica avente la nazionalità dell’altra Parte, sarà sottoposta alla giurisdizione del Centro Internazionale per il regolamento delle controversie relative agli investimenti, conformemente alla Convezione Internazionale di Washington del 18 marzo 1965. Ogni contestazione ed ogni controversia, fra le due Parti contraenti vertenti sull’interpretazione o sull’applicazione del presente Accordo, saranno regolate per le vie diplomatiche.
- 41.
The Mapping Project conducted by the UNCTAD Investment Policy Hub mentions that 2429 out of 2575 mapped treaties provide for both investor-State and interstate arbitration, 2558 out of 2575 mapped treaties provide for interstate arbitration and 2444 out of the 2575 mapped treaties provide for investor-State arbitration (http://investmentpolicyhub.unctad.org/IIA/mappedContent#iiaInnerMenu).
- 42.
Paul Peters mentions in a comparative study on BITs he conducted (Peters 1991), that out of the interstate arbitration clauses he mapped in 170 BITs most are very similar but not two of them identical.
Typical clauses are to be found in the UK Model BIT (2005) reprinted in Dolzer and Schreuer (2012) it reads:
Article 9. Disputes between the Contracting Parties:
-
(1)
Disputes between the Contracting Parties concerning the interpretation or application of this Agreement should, if possible, be settled through the diplomatic channel.
-
(2)
If a dispute between the Contracting Parties cannot thus be settled, it shall upon the request of either Contracting Party be submitted to an arbitral tribunal.
-
(3)
Such an arbitral tribunal shall be constituted for each individual case in the following way. Within two months of the receipt of the request for arbitration, each Contracting Party shall appoint one member of the tribunal. Those two members shall then select a national of a third State who on approval by the two Contracting Parties shall be appointed Chairman of the tribunal. The Chairman shall be appointed within two months from the date of appointment of the other two members. […]
Or the US Model BIT 2012. It reads:
Article 37. State-State Dispute Settlement:
-
1.
Subject to para. 5, any dispute between the Parties concerning the interpretation or application of this Treaty, that is not resolved through consultations or other diplomatic channels, shall be submitted on the request of either Party to arbitration for a binding decision or award by a tribunal in accordance with applicable rules of international law. In the absence of an agreement by the Parties to the contrary, the UNCITRAL Arbitration Rules shall govern, except as modified by the Parties or this Treaty.
(https://ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf).
-
(1)
- 43.
- 44.
Industria Nacional de Alimentos, S.A. and Indalsa Perú, S.A. (formerly Empresas Lucchetti, S.A. and Lucchetti Perú, S.A.) v Republic of Peru, ICSID Case No ARB/03/4, Award (7 February 2005) paras 7–9.
- 45.
Republic of Italy v Republic of Cuba, Interim Award (15 March 2005); Republic of Italyv Republic of Cuba, Final Award (15 January 2008).
- 46.
Republic of Ecuador v United States of America, PCA Case No 2012-5, Award (29 September 2012).
- 47.
Industria Nacional de Alimentos, S.A. and Indalsa Perú, S.A. (formerly Empresas Lucchetti, S.A. and Lucchetti Perú, S.A.) v Republic of Peru, ICSID Case No ARB/03/4, Award (7 February 2005), paras 7, 9.
- 48.
Schreuer (2007), pp. 350–351.
- 49.
Chevron Corporation and Texaco Petroleum Company v The Republic of Ecuador, PCA Case No 34877, Partial Award on the Merits (30 March 2010).
- 50.
Republic of EcuadorvUnited States of America, PCA Case No 2012-5, Award (29 September 2012) paras 5, 40–49; Republic of Ecuador v United States of America, PCA Case No 2012-5, Statement of Defense of Respondent United States of America (29 March 2012) 4.
- 51.
Republic of Ecuador v United States of America, PCA Case No 2012-5, Award (29 September 2012) paras 207, 228.
- 52.
On the issue of re-politicization in the EcuadorvUnited States case see: W. M. Reisman, Expert Opinion with Respect to Jurisdiction (24 April 2012) para. 24 “Likewise, in order to induce foreign investment, host states consented to arbitration directly by investors generally without requiring exhaustion of local remedies. The consequence of this agreement was thus to depoliticize the process of resolving disputes. In the absence of the BIT arrangement, foreign investment disputes would once again be taken up by states.”
C. Tomuschat, Expert Opinion on the Construction of Article VII (24 April 2012) para. 32: “The BIT aims to depoliticize investment disputes by pushing the home State of the investor back to the sidelines. Ecuador, by contrast, brings the contracting parties back to centre-stage.”
- 53.
Republic of Italy v Republic of Cuba, Interim Award (15 March 2005); Republic of Italy v Republic of Cuba, Final Award (15 January 2008). On the case see Potestà (2012b).
- 54.
Republic of Italy v Republic of Cuba, Interim Award (15 March 2005), paras 24–25.
- 55.
Accordo tra il governo della repubblica italiana e il governo della repubblica di cuba sulla promozione e protezione degli investimenti (signed 7 May 1993, entered into force 23 August 1995) (Italy-Cuba BIT) Article 9(2) “Se una controversia non potesse essere risolta entro sei mesi a partire dalla data in cui è stata iniziata per iscritto essa potrà essere sottoposta a scelta dell’investitore: […] b) Ad un Tribunale arbitrale secondo le disposizioni dei commi da 3 a 5 dell’Articolo 10.”
Translation: Agreement between the Government of the Italian Republic and the Government of the Republic of Cuba on the Promotion and Protection of Investment, (signed 7 May 1993, entered into force 23 August 1995) (Italy-Cuba BIT) Article 9(2). “If a dispute can not be resolved within six months from the date on which it was initiated in writing, it may be submitted to the investor’s choice: […] To an arbitration tribunal according to the provisions of paras 3 to 5 of Article 10.”
- 56.
Article 10(3) Italy-Cuba BIT. Regolamento delle Controversie tra le Parti Contraenti:
3. Il Tribunale Arbitrale verrà costituito nel modo seguente: entro due mesi dalla data di ricezione della richiesta di arbitrato, ogni Parte nominerà un membro del Tribunale. Questi due membri sceglieranno poi, quale Presidente, un cittadino di uno Stato terzo. Il Presidente sarà nominato entro tre mesi dalla data di nomina dei due membri predetti.
Translation: Article 10(3) Settlement of Disputes between the Contracting Parties Italy/Cube BIT 1993: The Arbitral Tribunal shall be constituted in the following manner: within two months from the date of receipt of the request for arbitration, each Party shall appoint a member of the Tribunal. These two members will choose, as President, a citizen of a third State. The President shall be appointed within three months from the date of appointment of the two aforementioned members.
- 57.
Republic of Italy v Republic of Cuba, Interim Award (15 March 2005), para. 47.
- 58.
Republic of Italy v Republic of Cuba, Interim Award (15 March 2005), paras 65, 67.
- 59.
Republic of Italy v Republic of Cuba, Final Award (15 January 2008), p. 103.
- 60.
Republic of Italy v Republic of Cuba, Interim Award (15 March 2005), para. 46.
- 61.
Article 27 of the ICSID Convention pursues two goals as the drafting history shows. On the one hand the host State shall be protected against multiple claims emanating in parallel from the home State and the investor and, on the other hand, it aims to depoliticize investment disputes: “As a corollary of the principle of allowing an investor direct and effective access to a foreign State without the intervention of his national State it was proposed—and this was an important innovation—that an investor’s national State would no longer be able to espouse a claim of its national. In this way it was sought to ensure that States would not be faced with having to deal with a multiplicity of claims and claimants. The Convention would therefore offer a means of settling directly, on the legal plane, investment disputes between the State and the foreign investor and insulate such disputes from the realm of politics and diplomacy.” (Summary Record of Proceedings, Addis Ababa Consultative Meetings of Legal Experts, December 16–20, 1963, in History of the ICSID Convention (1968) vol II-1 242).
- 62.
Article 27—Diplomatic Protection in Schreuer et al. (2009), p. 425, para. 33.
- 63.
Article 27—Diplomatic Protection in Schreuer et al. (2009), p. 425, para. 30.
- 64.
- 65.
The case Werner Schneider, acting in his capacity as insolvency administrator of Werner Schneider, acting in his capacity as insolvency administrator of Walter Bau Ag (In Liquidation)v Kingdom of Thailand, UNCITRAL (formerly Walter Bau AG (in liquidation)v Kingdom of Thailand), Award (1 July 2009) paras 5.54, 5.63, 5.77, 5.78, 5.85, 6.15, 6.19. 15.1 offers an example for this type of diplomatic involvement, that happened before the investor started the investor-State arbitration. The case that was not an ICSID but an UNCITRAL case and the Germany-Thailand BIT does not contain a clause similar to Article 27 ICSID Convention.
- 66.
Schreuer et al. (2009), para. 6.
- 67.
Republic of Italy v Republic of Cuba, Interim Award (15 March 2005), para. 65 “[…] L’absence dans l’Accord d’une disposition semblable à l’article 27 de la Convention de Washington de 1965 n’empêche pas l’application de ce principe par analogie.”
- 68.
Amerasinghe (2004), p. 275. “[…] [i]t would be reasonable to infer that, once the procedures directly involving the investor are invoked, the treaty does not permit the resort to diplomatic protection directly with the involvement in arbitration of the investor’s national state. Otherwise, the settlement procedures provided for would duplicate rather than simplify the procedures for the settlement of disputes which would not be a logically consistent result.”
- 69.
- 70.
Pohl J, Mashigo K, Nohen A (2012) Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey. 2 OECD Working Papers on International Investment https://doi.org/10.1787/5k8xb71nf628-en.
- 71.
Here are some random examples: Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Sierra Leone for the Promotion and Protection of Investments (signed 13 January 2000, entered into force 20 November 2001) (UK-Sierra Leone BIT), Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Slovenia for the Promotion and Protection of Investments (signed 3 July 1996, entered into force 27 March, 1999) (UK-Slovenia BIT) and the Agreement between the Government of the Republic of Korea and the Government of the United Kingdom of Great Britain and Northern Ireland for the Promotion and Protection of Investments (signed and entered into force 4 March, 1976) (UK-South Korea BIT) exclude any form of diplomatic protection but only after referral to arbitration.
See e.g. Article 8 (4) of the UK-Sierra Leone BIT: “Neither Contracting Party shall pursue through the diplomatic channel any dispute referred to the Centre unless:
-
(a)
the Secretary-General of the Centre, or a conciliation commission or an arbitral tribunal constituted by it, decides that the dispute is not within the jurisdiction of the Centre; or
-
(b)
the other Contracting Party should fail to abide by or to comply with any award rendered by an arbitral tribunal.”
The same provision is contained in Article 10(2) of the UK-Slovenia BIT or Article 8(2) of the UK-South Korea BIT.
Another slightly different example for such a provision is Article VII of the Treaty between the United States of America and the Republic of Turkey Concerning the Reciprocal Encouragement and Protection of Investments (signed 3 December 1985, entered into force 18 May 1990):
Article VII:
1. The Parties shall seek in good faith and in the spirit of cooperation a rapid and equitable solution to any disputes between them concerning the interpretation or application of this treaty. […] If such negotiations are unsuccessful, the dispute may be submitted, upon the request of either Party, to an arbitral tribunal for binding decision in accordance with the applicable rules of international law. […]
7. This Article shall not be applicable to a dispute which has been submitted to and is still before the Centre pursuant to Article VI.
A further variation can be found in Article 9(4) of the Agreement between the Hashemite Kingdom of Jordan and the Government of the Italian Republic on the Promotion and Protection of Investments (signed 21 July 1996, entered into force 17 January 2000):
4- Both Contracting Parties shall refrain from negotiating through diplomatic channels any matter relating to an arbitration procedure or judicial procedure underway until these procedures have been concluded, and one of the Contracting Parties has failed to comply with the ruling of the Center or the Court of Law within the period envisaged by the ruling, - or else within the period which can be determined on the basis of the international or domestic law provisions which can be applied to the case.
Article 9(4) of the Italy-Armenia BIT (2003) contains a nearly identical provision.
-
(a)
- 72.
- 73.
Provost C, Kennard, M (10 June 2015) The obscure legal system that lets corporations sue countries’ The Guardian https://www.theguardian.com/business/2015/jun/10/obscure-legal-system-lets-corportations-sue-states-ttip-icsid.
- 74.
UNCITRAL Arbitration Rules, as revised in 2010 (effective since 15 August 2010) https://www.italaw.com/sites/default/files/case-documents/italaw3293.pdf.
- 75.
1. Guaracachi America, Inc. (U.S.A.) & 2. Rurelec plc (United Kingdom) v Plurinational State of Bolivia, PCA Case No 2011-17, Award (31 January 2014).
- 76.
1. Guaracachi America, Inc. (U.S.A.) & 2. Rurelec plc (United Kingdom) v Plurinational State of Bolivia, PCA Case No 2011-17, Respondents Memorial on Jurisdiction (17 September 2012).
- 77.
1. Guaracachi America, Inc. (U.S.A.) & 2. Rurelec plc (United Kingdom) v Plurinational State of Bolivia, PCA Case No 2011-17, Respondents Memorial on the Merits (15 October 2012).
- 78.
Mason R, Nelson D (19 February 2011) David Cameron intervenes for Cairn and Vodafone in India, The Telegraph. http://www.telegraph.co.uk/finance/newsbysector/energy/8334832/David-Cameron-intervenes-for-Cairn-and-Vodafone-in-India.html.
- 79.
The UNCITRAL Arbitration Rules of 1976 (adopted 15 December 1976) are being applied in Cairn (n 81) https://www.italaw.com/sites/default/files/case-documents/italaw8841.pdf. Whether these or the revised version of 2010 (n 75) are being applied in Vodafone (n 82) is unknown.
- 80.
Cairn Energy PLC and Cairn UK Holdings Limited v The Republic of India, PCA Case No 2016-7.
- 81.
- 82.
Vodafone International Holdings BV v India, PCA Case No 2016-35.
- 83.
On the case see: Peterson LE (2 November 2016) President of the ICJ Nominates Chair for Vadafone v India Arbitration—and Then Rejects India’s Effort to Disqualify the Nominee. IAReporter https://www.iareporter.com/articles/president-of-icj-nominates-chair-for-vodafone-v-india-arbitration-and-then-rejects-indias-effort-to-disqualify-the-nominee/.
- 84.
Peterson LE (5 December 2012). As Repsol files arbitration against Argentina, row erupts over alleged “diplomatic protection” by Spain and the EU, IAReporter https://www.iareporter.com/articles/as-repsol-files-arbitration-against-argentina-row-erupts-over-alleged-diplomatic-protection-by-spain-and-the-eu/.
- 85.
Repsol, S.A. and Repsol Butano, S.A. v Argentine Republic, ICSID Case No ARB/12/38.
- 86.
- 87.
The OECD Declaration and Decisions on International Investment and Multinational Enterprises 2012, https://www.oecd.org/investment/investment-policy/ConsolidatedDeclarationTexts.pdf.
- 88.
So far only few investment protection treaties contain a rule analogue to Article 27 of the ICSID Convention. See p. 16.
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Kriebaum, U. (2019). Evaluating Social Benefits and Costs of Investment Treaties: Depoliticization of Investment Disputes. In: Fach Gómez, K., Gourgourinis, A., Titi, C. (eds) International Investment Law and the Law of Armed Conflict. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-10746-8_2
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