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INTERNATIONAL INSTITUTIONS AND DISPUTE SETTLEMENT: THE CASE OF ICSID
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Author(s):
NITESH KUMAR SRIVASTAVA, PROF. (DR.) R. L. KOUL
Vol - 8, Issue- 8 ,
Page(s) : 143 - 153
(2017 )
DOI : https://doi.org/10.32804/CASIRJ
Abstract
Disputes between States belong to the realm of Public International Law. These disputes are often resolved by two basic techniques of conflict management: diplomatic procedures and adjudication. For this purpose, Public International Law discusses matters as the law of international organisations, the law of treaties, human rights, humanitarian law, international courts, etc. However, where the State exercises a commercial function, either by itself or through a State entity and entersinto a business relationship with a private party, any disputes which arise are likely to be referred either to the courts of the State concerned or to international commercial arbitration. Almost invariably, the private party to such a contract will prefer arbitration as it is a ‘neutral’ process.
- Nitesh Kumar Srivastava is a PhD Scholar at Amity University NOIDA, Uttar Pradesh. This article is an outcome of his research that he is pursuing for PhD degree under the guidance of ProfR.L.Koul..
- Prof.R.L.Koul is a Professor at Amity University NOIDA,He is the guide of Nitesh Kumar Srivastava.
- Malcolm N Shaw, International Law, (Cambridge, New York, 5th ed, 2003).
- Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Aug 25, 1965, 4 ILM 524 (1965).
- www.worldbank.org/ICSID, visited on August 9, 2009.
- The three major international arbitrations arising out of the nationalisation by the Libyan Government of oil concession agreements with foreign corporations which still had many years to run are discussed in Ch.2 The Libyan Government declined to take part in the arbitrations and so its case went, if not unconsidered, at least unargued.
- Lord Denning in Rahimtoola v the Nizam of Hyderabad [1958] AC 379, 418.
- A considerable number of arbitrations involving States and State entities take place under the ICC Rules.
- A H ASoons (ed), Nova et VeteraIurisGentium, International Arbitration: Past and Prospects,(MartinusNijhoff Publishers, 1990).
- Convention on the Settlement of International Investment Disputes between States and Nationals of Other States, Washington, March 18, 1965, 575 UNTS, p 159. For comments on the work of ICSID, see Aron Broches, ‘The Experience of the International Centre for Settlement of Investment Disputes,’ in Seymour J Rubin and Richard W Nelson, (eds), International Disputes: Avoidance and Settlement (Studies in Transnational Legal Policy 1985), pp 75-97; Georges R Delaume, ‘ICSID Arbitration: Practical Considerations,’ 1 Journal ofInternational Arbitration (1985), pp 101-125.
- Aron Broches, ‘Awards Rendered Pursuant to the ICSID Convention: Binding Force, Finality, Recognition, Enforcement, Execution,’ 2 ICSID Review: Foreign Investment Journal (1987), pp 287-334; Mark B Feldman, ‘The Annulment Proceedings and the Finality of ICSID Arbitral Awards,’ Journal of International Arbitration, pp 85-110.
- Julian DM Lew and LoukasAMistelis, et al, Comparative International Commercial Arbitration, (Kluwer Law International, The Netherlands, 2003).
- Convention on the Settlement of Investment Disputes between States and Nationals of other States, done at Washington, March 18, 1965. United Nations Treaty Series (1966), Vol 575, p 160
- Sir Elihu Lauterpacht, in his foreword to Christoph Schreuer, The ICSID Convention: A commentary (Cambridge University Press, 2001), ppxi-xii.
- See generally Schreuer, The ICSID Convention: A Commentary (CUP 2001).
- Art 2(b) of the Additional Facility Rules authorizes proceedings for the settlement of disputes that are not within the Centre’s jurisdiction because they do not arise directly out of an investment. This is usually read to refer to disputes that arise from transactions other than investments. But a dispute that arises from an investment, though only indirectly, would also be covered by the wording of this provision. Therefore, where the connection between the investment and the dispute appears too remote to satisfy the Convention’s requirement of directness, the Additional Facility could serve as an alternative method of dispute settlement. See Fedax v Venezuela, Decision on Jurisdiction, 11 June 1997, 37 ILM 1378, 1384 (1998).
- See Nigel Blackaby, Public Interest and Investment Treaty Arbitration, 1(2) Oil, Gas &Energy Law Intelligence (March 2003), available at <http://www.gasandoil.com/ogel/articles/welcome.asp?article _56.htm> visited on August 22, 2009.
- See U.S Government in Methanex Corporation v United States, 4 INT'L ARB L REV n-3 (2001).
- A list of the cases filed can be found at http://www.worldbank.org/icsid/cases/cases.htmvisited on August 25, 2009.
- There are around 1500 different Bilateral and Multilateral Investment agreements which refer disputes to ICSID.
- 1 ICSID Reports, p 377.
- Supra note 1.
- Article 1120 of the NAFTA treaty, 1992 and Article 26(4) of the European Energy Charter,
- 1995.
- 119 ILR 615.
- The International Center for the Settlement of Investment Disputes (ICSID), Bretton Woods Project, 2009 available at <http://www.brettonwoodsproject.org/art-564868> visited on August 25, 2009.
- Dominique Grisay, International Arbitration: the ICSID Convention: a convenient solutionfor companies in conflict with states, The Bulletin Volume 6 Issue 1 available at<http://www.imakenews. com/iln/e_article000763642.cfm?x=b11,0,w> visited on August 24, 2009.
- ibid
- http://economictimes.indiatimes.com/News/Economy/Foreign_Trade/ New_Delhi_plans_to_join_Investment_Disputes_Convention/articleshow/3478075.cmsvisited on August 29, 2009.
- Christoph Schreuer, The ICSID Convention: A Commentary, available at <http://www.dundee.ac.uk/ cepmlp/journal/html/schreuer.html> visited on August 27, 2009.
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