Paul Idornigie SAN C.Arb

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Annulment, Review and Enforcement of ICSID Awards

Introduction

The increasing importance of international investment has been accompanied by the rapid development of a new field of international law that defines the obligations of host states towards foreign investors and creates procedures for resolving disputes in connection with those obligations.   Investor-state arbitration (also referred to as investment treaty arbitration or investor-state dispute settlement (ISDS)) examines the international treaties (often referred to as International Investment Agreements [IIAs] or Treaties with Investment Protection (TIP)[1] that give investors a direct right to arbitration of claims without reference to their home governments.  It also includes analysis of the substantive law of investment protection, and  of recent investor-state arbitral jurisprudence.

Investor-state arbitration traces the evolution and rapid development to the International Centre for the Settlement of Investment Disputes (ICSID)  in 1965 and the more than 3,324 TIPs, most of which have originated in the last twenty years. This development has led to far greater certainty for foreign investors in dealing with their host countries and has incentivized growth in international trade and commerce. Through arbitration, investors who have been negatively affected by the acts of a host country, such as, for example, the expropriation of property, now have a fair means of redress.[2]

In the TIPs there is usually provision for state-to-state dispute resolution mechanism as well as investor-state dispute settlement mechanism.  At the beginning these provisions were in the interest of the capital exporting countries as the respondents in most disputes were essentially capital importing countries.  However, lately the distinction between capital importing and capital exporting countries has become blurred.  In consequence, the capital importing countries have raised concerns about the efficacy of ISDS and are asking for reforms.

Other than arbitration under ICSID, there are usually provisions for arbitration under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, the International Chamber of Commerce Arbitration Rules, domestic or other multi-lateral treaties and regional arbitral institutions.  If the mechanism chosen is arbitration under ICSID, the requirements of Article 25 of ICSID must be complied with.  Generally the arbitral proceedings end in an arbitral award.

In this presentation, the focus is how to annul, review or enforce ICSID awards.

Evolution of Investor-State Arbitration

We have always had trade between the capital exporting and exporting countries.  The critical question has been how to balance and protect the investment of foreign nationals vis-a-vis the interest of the host state.  However, a development in the latter part of the 20th century has fundamentally altered this.  This was done by way of diplomatic protection from the home state[3].  In which case, the home state must agree to submit the arbitration of the dispute to a claim commission.  This required the prior intervention of the home state.

There are various versions of the origin of bilateral investment treaties.[4]  However, until the seminal work of the Argentine jurist and diplomat, Carlos Calvo in 1868,[5] an individual or a corporation who wished to assert a claim against a foreign state for breach of customary international law could not do so directly.  Instead, the individual or corporation concerned had to rely upon his/its government taking up the claim on its behalf.  This worked against the colonies because in the case of the major trading countries, influential individuals or corporations  convinced their governments to send a small contingent or warships to moor off the coast of the offending state until reparation was forthcoming – the so-called “gunboat diplomacy”.[6]

[1] International agreements with investment protections include tree trade agreements (such as the North-American Free Trade Agreement (NAFTA available at  <https://ustr.gov/trade-agreements/free-trade-agreements/north-american-free-trade-agreement-nafta> accessed 6 August, 2018), the Dominican Republic-Central America-United States Free Trade Agreement (available at <https://www.cbp.gov/trade/free-trade-agreements/cafta-dr>  accessed 6 August, 2018) and the Energy Charter Treaty (ECT available at <https://energycharter.org/> accessed 6 August, 2018).

[2] See generally, Christopher Dugan, Don Wallace, Noah Rubins, and Borzu Sabah,  Investor-State Arbitration (Oxford University Press, 2008).  See also Paul Oboarenegbe Idornigie, Commercial Arbitration Law and Practice in Nigeria (LawLords Publications, 2015) 324-370.

[3] See Gus Van Harten, Investment Treaty Arbitration and Public Law (Oxford University Press, 2008)  9 and 18.  See also B Kingsbury “Sovereignty and Inequality’ (1998) 9 EJIL 599, 601 (noting that state sovereignty is the ‘means by which people can express and be deemed to have expressed, consent to the application of international legal norms and to international institutional competences’) and Idornigie (n 3) 326

[4] Harten (n 3) 3 and 12

[5]Derecho internacional terorico y practico de Europa y America”, Paris 1868

[6] See M Hood Gunboat Diplomacy 1895-1905 (George Allen & Unwin, 1975) 187-8.  Thus when the Venevuelan Government announced that it would not repay its debts to European creditors, a naval armada was dispatched by Germany, Great Britain and Italy to blockade Caracas and bombarded coastal facilities.

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