Biting the Bullet or Redefining ‘Consent’ in Investor-State Arbitration? Pre-Arbitration Requirements After BG Group v Argentina

2015 ◽  
Vol 16 (4) ◽  
pp. 695-726
Author(s):  
Konstanze von Papp
Keyword(s):  
International Law ◽  
Traditional Approach ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Group V ◽  
Public International Law ◽  
Investment Treaty ◽  
Alternative Solutions ◽  
Investment Treaty Arbitration ◽  
Consensual Approach

A purely consensual approach to international arbitration has its limits even in commercial arbitration. In investment treaty arbitration, the traditional approach to finding ‘consent’ to arbitrate encounters difficulties if there are any pre-arbitration requirements that have not been satisfied. This will be illustrated by the case of BG Group v Republic of Argentina. Drawing a line between purely ‘procedural’ pre-arbitration requirements and those that are strict conditions on a host state’s consent to arbitrate is difficult, if not impossible. This article suggests alternative solutions, taking into account the need to appreciate domestic arbitration laws as well as public international law concerns. ‘Biting the bullet’ would mean accepting the lack of consent between host state and investor. A doctrinally clearer approach to jurisdictional issues could then be found by drawing an analogy to non-signatory issues in commercial arbitration.

scholarly journals Through the looking glass: The UNCITRAL Rules on Transparency and what they reveal about theories of investment treaty arbitration

2021 ◽  
Author(s):  
◽  
Johanna McDavitt
Keyword(s):  
International Law ◽  
Public Interest ◽  
Commercial Arbitration ◽  
Public International Law ◽  
The Public ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Theoretical Conception ◽  
Looking Glass ◽  
Investment Treaty Arbitration

<p>This paper aims to use the transparency debate within investment arbitration, and specifically the discussions of Working Group II when preparing the UNCITRAL Rules on Transparency, as a lens to examine how the international community conceptualises investment arbitration. It will argue that investment arbitration is no longer viewed as a private system of dispute resolution akin to international commercial arbitration. Rather, the public interest, public international law, and regulatory nature of investment arbitration is increasingly coming to the fore. Accordingly, the consent of the parties is no longer at the heart of arbitral authority. This paper aims to identify what alternate theoretical conception of investment arbitration is driving transparency initiatives in investment arbitration.</p>

scholarly journals Through the looking glass: The UNCITRAL Rules on Transparency and what they reveal about theories of investment treaty arbitration

2021 ◽  
Author(s):  
◽  
Johanna McDavitt
Keyword(s):  
International Law ◽  
Public Interest ◽  
Commercial Arbitration ◽  
Public International Law ◽  
The Public ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Theoretical Conception ◽  
Looking Glass ◽  
Investment Treaty Arbitration

<p>This paper aims to use the transparency debate within investment arbitration, and specifically the discussions of Working Group II when preparing the UNCITRAL Rules on Transparency, as a lens to examine how the international community conceptualises investment arbitration. It will argue that investment arbitration is no longer viewed as a private system of dispute resolution akin to international commercial arbitration. Rather, the public interest, public international law, and regulatory nature of investment arbitration is increasingly coming to the fore. Accordingly, the consent of the parties is no longer at the heart of arbitral authority. This paper aims to identify what alternate theoretical conception of investment arbitration is driving transparency initiatives in investment arbitration.</p>

Part III Public International Law Disputes, Climate Disputes, and Sustainable Development in the Energy Sector, 17 Climate Disputes and Sustainable Development in the Energy Sector: Bridging the Enforceability Gap

2018 ◽  
Author(s):  
Magnusson Annette
Keyword(s):  
Sustainable Development ◽  
Solar Energy ◽  
International Law ◽  
Energy Sector ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Public International Law ◽  
Energy Needs ◽  
Energy Plant ◽  
New Instruments

This chapter provides an overview of energy-related sustainability objectives. It also provides a list of instruments aimed at their enforcement. Today, not many avenues are available to use international arbitration to enforce sustainability objectives. The chapter analyzes whether and how international arbitration can offer support for desirable developments towards meeting sustainable energy needs for the future by encouraging new instruments and other innovations. It also acknowledges the importance of what might be called ‘indirect’ enforcement of sustainability objectives, via legal instruments other than those defining the sustainability objectives as such (eg commercial arbitration enforcing the construction of a solar energy plant).

Substance and procedure in international arbitration

2020 ◽  
Vol 36 (1) ◽  
pp. 3-66
Author(s):  
Saar A Pauker
Keyword(s):  
International Law ◽  
Private International Law ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
National Courts ◽  
Investment Treaty ◽  
Basic Theme ◽  
Material Points

Abstract The distinction between substance and procedure in private international law has been subject to extensive debates among national courts and scholarly writings. The basic theme that procedural issues are governed by the lex fori, and substantive issues are subject to the lex causae, is widely accepted, although the boundaries between substance and procedure are not always clear. This article examines the application of the distinction between substance and procedure in the area of international arbitration, as regards both commercial cases and investment treaty disputes. It is argued that the distinction between substance and procedure has significant ramifications in international arbitration. The central (though not the only) aim of this distinction refers to the determination of the rules to be applied to borderline issues, such as evidentiary matters, interest, and limitation rules. Arbitral tribunals should have a considerable level of discretion in drawing the distinction. Specified points of guidance are suggested for common grayzone questions. Although the general principles concerning the substance/procedure distinction are similar in investment treaty arbitration and international commercial arbitration, material points of difference, such as the key role of public international law, may somewhat narrow the investment treaty tribunals’ discretion in respect of drawing the distinction.

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