Turkey: Principle Of Good Faith In Determining The Juristicdion Of ICSID And Commentary On The Phoenix Case

ABSTRACT

Since the jurisdiction of ICSID, which was established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, does not cover all kind of disputes arising from international investments, in order to resolve a dispute it is required to meet with some of the criteria regarding jurisdiction. Such criteria are classified as (i) condition of consent, (ii) jurisdiction ratione personae and (iii) jurisdiction ratione materiae. Within this scope, one of the most important dispute issues arising from determining the jurisdiction ratione materiae is the scope of the term "investment". Since such term is not defined under Convention on the Settlement of Investment Disputes between states and Nationals of Other States, whether the commercial activities in the concrete case constitute an investment which falls within the jurisdiction of ISCID is determined through the instrumentality of criteria which were set out by international investment treaties, the doctrine and precedent. During the determination of jurisdiction process, together with the generally accepted criteria for an investment which have been set out by the Salini case, the presence of an investment under the principle of good faith is also taken into consideration by the tribunals as an additional criterion. As such, the Phoenix case is one of the most important cases on the principle of good faith. Despite the fact that the investment criteria were fulfilled in the present case, the arbitral tribunal concluded that principal of good faith had been violated and decided that it had no jurisdiction due to the absence of a protected investment.

I. INTRODUCTION

INTERNATIONAL CENTER FOR SETTLEMENT OF INVESTMENT Disputes ("ICSID"), which has been established under Convention on the Settlement of Investment Disputes between States and Nationals of Other States ("ICSID Convention") which was entered into force in the year of 1996, aims to resolve the disputes between foreign investors and host states by arbitration. However not all kind of disputes are covered under the jurisdiction of ICSID, therefore in order for a dispute to be resolved under ICSID, some criteria as to the jurisdiction is required to be fulfilled. The jurisdiction criteria which need to be fulfilled under Article 25 of the ICSID Convention are classified as (i) condition of consent, (ii) jurisdiction ratione personae and (iii) jurisdiction ratione materiae. Nevertheless, it is observed that several problems occur in terms of the aforesaid jurisdiction criteria during the determination of jurisdiction of ICSID. Since the tribunals in ICSID arbitration have been vested with the authority to determine their jurisdiction for examining the dispute in the present case (competence-competence rule), the tribunals determine whether the criteria mentioned above are present in the concrete case by examining the jurisdiction.

The required conditions for presence of jurisdiction ratione materiae, are (i) a legal dispute, (ii) the dispute arising from an investment transaction and (iii) a direct relationship between the relevant investment and the dispute. As these conditions would be analyzed in details in the following sections, one of the most important issues arising from establishment of jurisdiction ratione materiae is the scope of investment. Since the definition of investment is not found under the ICSID Convention, it is determined whether there is an investment which falls within the jurisdiction of ICSID in the present case through the criteria which were set out by international investment treaties, the doctrine and precedent. In this context, in addition to the generally accepted criteria for investment in practice, the presence of an investment under the principle of good faith is taken into consideration as an additional criterion by the arbitral tribunals during the examination of jurisdiction. As such, the Phoenix case is one of the most important cases on the principle of good faith.

Within this framework, occurrence of ICSID arbitration, trial phases and its practice around the world will be discussed under the first section of our study. In the second section, Salini test will be examined in terms of the criteria taken into consideration during the determination of jurisdiction of ICSID and especially jurisdiction rationa materiae. In the last section of our study, principle of good faith will be discussed within the framework of the Phoenix case.

II. ICSID ARBITRATION

A. Establishment of ICSID

It is argued that the establishment of a process for an impartial settlement of investment disputes and founding a legal basis for this process to support the flow of international private investments will be beneficial to strengthen the international investments. In this way, it was foreseen that setting foreign investors free from fear of political risks, is possible by splitting matter of disputes from the local jurisdiction and political pressures.¹ By taking abovementioned reasons into consideration, with the purpose of adopting measures for easing and improving the flow of international capital to the developing countries, a movement was started by the World Bank to develop proper instruments for the settlement of disputes arising from foreign investments,² and consequently, Convention on the Settlement of Investment Disputes between States and Nationals of Other States which is also called as Washington Convention entered into force in 14 October 1966. Turkey had signed the ICSID Convention on 24 June 1987 and officially became a party on 2 April 1989. Pursuant to the second paragraph of Article 1 of the ICSID Convention, International Center for Settlement of Investment Disputes aims to provide facilities for conciliation and arbitration of investment disputes between contracting states and nationals of other contracting states.

B. ICSID Practice Around the World

From the year of 1966 to the present, 767 arbitration cases were brought before ICSID in total. 259 of such cases are still in progress while 495 cases were concluded. Additionally, there is no information published by ICSID as to other 13 cases. Statistically, approximately 65% of the ICSID cases were concluded and when the awards are considered, it is observed that 180 cases were concluded in favor of the host country whereas 132 cases were concluded in favor of the investor.

Under the 495 concluded cases, 12 of them were decided as not in favor of any of the parties therefore there is no damage suffered by the parties although there is liability. Additionally, it is possible for the parties to reach a settlement by themselves during the arbitration process and therefore the parties settled in 121 cases and ended the proceedings with consensus. Lastly, it is observed that the judgement of nolle prosequi was reached in 50 cases.³

C. Phases of ICSID Proceedings

In order to start an arbitration process before ICSID, the application must be submitted in writing to the General Secretariat of ICSID. The documents in the application must clearly state (i) the addresses of all parties, (ii) parties' consent regarding the arbitration, and (iii) the dispute. As the first phase, the General Secretariat examines the application in the framework of the above-mentioned elements to determine whether the dispute is within the jurisdiction of ICSID, and decides to accept the application in the presence of these elements. Following the referred decision, an arbitral tribunal is formed according to the procedural rules or the agreement between the parties.⁴

The arbitral tribunal is entitled to decide whether the dispute is within the jurisdiction of ICSID. Article 25 of the ICSID Convention⁵ explains the fundamental jurisdiction of ICSID. As understood from the content of the specified article, the preconditions for the presence of the jurisdiction of ICSID on a dispute are; jurisdiction ratione personae, jurisdiction ratione materiae and the existing consent of the parties. Designation of jurisdiction is going to be discussed in detail under the second section.

If the dispute is decided by the arbitral tribunal to be within the jurisdiction of ICSID, the dispute is carried out to the merits phase. Otherwise, the arbitration process ends in favor of the defendant country with the decision of lack of jurisdiction.

Following the completion of the trial, the dispute is concluded on the merits by the award of the arbitral tribunal. After this stage, under the ICSID Convention, there is no court of appeals to which the parties could apply against the award and local courts do not have any authority over such award.⁶ However, if one of the parties seeks the annulment of the award by claiming one or more of the reasons for annulment under Article 52 of the ICSID Convention, an ad hoc committee is formed and such tribunal is entitled to annul the award.

III. DETERMINATION OF JURISDICTION

In order for an arbitral tribunal to examine a dispute on its merits, firstly it must be determined that whether ICSID has jurisdiction over the dispute. The issue of jurisdiction can be examined by the arbitral tribunal ex officio or upon the objection of one of the parties. At this stage, it is necessary to raise an objection to the jurisdiction and draw the attention of the arbitral tribunal on the jurisdiction.⁷

The issue of jurisdiction is regulated under Article 25 of the ICSID Convention and such article focuses on three fundamental elements: (i) consent of the parties, (ii) jurisdiction ratione personae and (iii) jurisdiction ratione materiae. In this section, these three conditions will be examined in detail.

A. Consent of the Parties

Article 25 of the ICSID Convention binds the jurisdiction of ICSID to the condition of written consent of both parties. Consent for future disputes can be granted via an arbitration clause in a contract or an independent arbitration agreement. In addition, the parties can give their consent before or after the dispute.⁸ In other words, the parties are able to present their consents through correspondences after the occurrence of the dispute and to recognize the jurisdiction of ICSID over the dispute. The condition of consent is also deemed to have been fulfilled through a provision, regarding the arbitrating future disputes, in a contract between the investor and the host country where the investment has been made. In this way, the parties are deemed to consent to settle the disputes through conciliation or arbitration before ICSID.⁹ Such a provision may also be incorporated in a bilateral investment treaty between the host state and another state of which the investor is a national. For instance, the PSEG/Konya Ilgın case,¹⁰ which is the first ICSID case against Turkey, was brought on basis of the Treaty Concerning the Reciprocal Encouragement and Protection of Investments between Turkey and the United States.¹¹ To summarize, most of the regional investment treaties and bilateral investment treaties contain provisions for the settlement of disputes through arbitration. Finally, it is also possible that the consent of a contracting state may be granted through the laws on encouragement of investment.¹²

B. Jurisdiction Ratione Personae

The definitions of the terms "investor" and "host state" are directly related to the jurisdiction ratione personae because of the condition that the dispute to be settled should arise between the investor and the host state, as per the ICSID Convention. Therefore, it would be useful to examine the definitions given under the ICSID Convention. Pursuant to Article 25, the investor, whether a natural or juridical person, must be national of a country which is a party to the ICSID Convention. Furthermore, the investor must not be a national of the host state.

If an individual has a dual citizenship, even if there is no effective citizenship since one of the citizenships is in the host state, it is considered that the investor cannot fulfil the "foreign investor" condition.¹³ The concept of effective citizenship is used to describe the country with which the persons with dual citizenship are more closely related.

In terms of juridical person, it is important to examine the Article 25 in detail. By virtue of its wording, paragraph (b) of Article 25/2¹⁴ ensures that foreign investments carried out by means of a locally incorporated companies are not excluded from the scope of ICSID. To overcome the issue of juridical person's nationality, in the determination thereof, ICSID takes the place of registry of the company or the workplace as a basis.¹⁵ In this case, how bilateral investment treaties define the juridical person investor gains great importance. In many cases, the arbitral tribunal determined the nationality of the juridical person investor by prioritizing the definitions in bilateral investment treaties.¹⁶

In some bilateral treaties, measures are taken to prevent the investment from shifting to a different country for profit purposes; a real economic relationship is sought between the relevant state and the company. In those agreements, a strong bond with financial essence is sought between the company and the state of which the citizenship was claimed, and this bond is assessed by the operations carried out in that state or the effects of the citizens of the relevant state on the company.¹⁷

C. Jurisdiction Ratione Materiae and Salini Test

Pursuant to the Article 25 of the ICSID Convention, the jurisdiction of ICSID extends to any legal dispute arising directly out of an investment. For this reason, ICSID's jurisdiction over a case requires three elements in terms of ratione materiae; namely, (i) the dispute needs to be a legal dispute, (ii) the dispute must arise out of an investment, and (iii) there must be a direct relationship between the dispute and the investment in question.

By way of interpretation of the paragraph 1 of Article 25 of the ICSID Convention, it is inferred that a dispute can be considered as a legal dispute to establish jurisdiction of ICSID if it includes a legal right or responsibility, or includes compensation for a breach of legal responsibility. For this reason, political, economic, financial or commercial disputes are excluded from the scope of ICSID adjudication.¹⁸ Other elements are that the dispute must arise directly from an investment and there must be a direct link between the investment and the legal dispute. The word "direct" stated under the Article is interpreted by the arbitral tribunals as that the ICSID's jurisdiction exists where the dispute is directly arisen from investment.¹⁹ In this framework, it is important to determine whether there is an investment, and to define investment relating to that.

To prevent restriction of competence of ICSID, it appears that investment is not defined under the ICSID Convention. For this reason, the criteria which were set out by bilateral or multilateral investment treaties, the doctrine and precedents are important, when the existence of an investment is determined by the arbitral tribunals during the proceedings. In this context, as stated in the Salini case which is regarded as a precedent in terms of investment disputes, an investment infers: contribution of money or assets, a certain duration, an element of risk and a contribution to the economic development of the host State of the investment.²⁰ Additionally, it is seen that the criteria such as that the investment serving the public interest and the investment providing know-how are emphasized.²¹ In this respect, it is generally accepted in other ICSID adjudications that such criteria must exist for a transaction in order to be considered as an investment.²² In addition, it appears that the above-mentioned elements and the additional criteria such as the investor making a commitment which could be considered as important are adopted in the doctrine.²³ It important to point out at this stage that the examination of the existence of an investment by adapting the criteria which were set out in the Salini case to the present case is called as "Salini test" in ICSID practice.

In case of that the criteria stipulated by the Salini test are consistent with the present case, it is possible to refer to an investment under ICSID. Although the arbitral tribunals are free to take these criteria into account, it would not be wrong to say that the Salini test is well established in ICSID practice.²⁴ However, a protected investment must also exist for a dispute to be within the jurisdiction of ICSID, in addition to the condition of an existing investment. In other words, even if the investment subjected to the dispute fulfils the above-mentioned criteria, the investment must also be examined in the context of good faith principle.

IV. GOOD FAITH PRINCIPLE AND PHOENIX CASE

Principle of good faith, which is one of the basic principles of law, is also essential regarding the protection of international investments. In order to protect the transactions, which have all of the elements of an investment, in international platforms; there must be an investment made pursuant to the good faith principle. It is seen that the arbitral tribunals brought up this issue in many previous cases.²⁵ Undoubtedly, the Phoenix case is one of the most notable cases relating good faith. Because the arbitral tribunal concluded with a general determination to express its duty as "ensuring that only investments that are made in compliance with the international principle of good faith and do not attempt to misuse the system are protected" in the decision.²⁶

In the present case, a company in Israel was established with the aim of asserting certain claims in international law which cannot be claimed under domestic law, and this company acquired two other companies in the Czech Republic. The arbitral tribunal concluded that the claimant did not invest in order to develop economic activity, but to invoke an international judicial process against the host state.²⁷ In this context, by ruling that the related investment was not an investment made within the framework of good faith and protected under the ICSID system, the tribunal decided that it had no jurisdiction based on abusing of the system. The following determination made by the arbitral tribunal draws attention due to the importance attributed to the good faith principle:

When the decision given by the arbitral tribunal is examined, it is seen that the Salini test was applied in order to establish whether there is an investment in the present case. In this context, it is determined that the four essential criteria of the Salini test are (i) contribution of money or assets, (ii) a certain duration, (iii) an element of risk and (iv) a contribution to the economic development of the host State where the investment were fulfilled.²⁹ In addition, an investment made in accordance with the laws of the host country is another criteria which was fulfilled in the present case. However, it was concluded by the arbitral tribunal that an investment made under the principle of good faith was accepted as an additional criteria, and the present case did not fulfill this. In other words, the Salini test was taken one step further by the arbitral tribunal of the Phoenix case whereby good faith was also accepted as one of the criteria which must be included in an investment.³⁰

The matters such as timing of the investment and the claims, acquisition of the companies which were party to the ongoing disputes in domestic law and yet already suffered losses, and the claimant company having no economic operation in the related market were taken into consideration by the arbitral tribunal, and then, it was decided that the present case constituted a misuse of the system.

The Phoenix case, which is precedent for the similar cases, also came up in some cases which Turkey was a party. For instance, as the arbitral tribunal in the case of Europe Cement stated, the principle of good faith is a valid international legal principle regarding the interpretation and application of the obligations of the parties in international investment treaties, and this subject is widely accepted in investment arbitration.³¹ In this context, according to the opinion of the arbitral tribunal, as in the Phoenix case, a claim that is based on the purchase of an investment solely for the purpose of commencing litigation is an abuse of process, then surely a claim based on the false assertion of ownership of an investment is equally an abuse of process.³²

The case of Alapli Elektrik, which Turkey was a party, is also one of the cases which the principle of good faith was at the forefront. In this case, dissenting arbitrator asserted that a ruling on the lack of jurisdiction should have been made since the contribution element under Salini test was not fulfilled and accordingly it is impossible to find the existence of an investment. Another arbitrator stated that there might be an investment because the claimant had the shares of the Turkish company which was operating the project. However, by drawing attention to the timing of share transfer, the arbitrator focused on whether the investment is a protected investment. According to the opinion of the said arbitrator, it is clear that the investment was made in the time when the dispute existing with the public authority had been known by the Turkish companies who are the sponsors of the project, and only to attain the international competence of ICSID. As a result, it is argued that an investment which was not made within good faith cannot benefit from international protection and the arbitral tribunal is not competent in this dispute.³³ In spite of the dissenting opinion of the third arbitrator, the case concluded in favor of Turkey with the majority vote.

The case of Inceysa Vallisoletana S.L. v. Republic of El Salvador is also one of the decisions referring to the principle of good faith in international law. Since the "applicable law" clause in the bilateral investment treaties to be applied to the merits of the dispute in this case referred to the general principles and rules of international law, the arbitral tribunal decided that international law must be applied before domestic law.³⁴ Due to this, it is examined whether the fraudulent behaviours of the claimant company was against to the generally accepted principles of international law including the principle of good faith, before examining the whether they are against domestic law.³⁵ As a result, the arbitral tribunal concluded that the claimant obtained various benefits from the respondent through its fraudulent behaviors and false statements, and that was against to the generally accepted principles of international law including the principle of good faith, the principle of "no one can be heard to invoke his own turpitude" (nemo auditor propriam turpitudinem allegans), international public order and prohibition of unjust enrichment.³⁶

The principle of good faith has been the object of analysis in various cases concerning the dispute between foreign investor and the respondent state and it is likely to be relevant to other similar cases in the future. Although it is claimed in the doctrine that a broad interpretation of the jurisdiction of ICSID made by the arbitral tribunals, and the cases were tried to be taken into the scope of jurisdiction as much as possible,³⁷ it is seen that there is a very strict view on good faith. In this context, the following determination of the arbitral tribunal in the Hamester case is likely to constitute a precedent for future cases:

V. CONCLUSION

ICSID, which was established in 1996 with the purpose of settlement of disputes arising between foreign investors and host states through arbitration, hosted 767 cases until today, the 495 of which were resolved. When the arbitration proceedings before ICSID are taken into consideration, the lack of jurisdiction ruling is one of the circumstances which ends the arbitration process in favor of the respondent state. For this reason, determination of jurisdiction is one of the most important phases of the arbitration process.

To establish jurisdiction of ICSID on a dispute under the Article 25 of the ICSID Convention, (i) condition of consent, (ii) jurisdiction ratione personae and (iii) jurisdiction ratione materiae must be fulfilled. Jurisdiction rationae materia, which is the subject matter of our study, is basically based on the determination whether there is an investment. In this framework, since the investment is not defined under ICSID Convention, it is striven for determining what kinds of commercial activities constitute investment through the criteria which were set out by investment treaties, the doctrine and precedents.

In addition to the investment criteria in Salini test, which is the most frequently used method by arbitral tribunals to determine whether activities in the present case constitute an investment, it is seen that principle of good faith is also accepted as an additional criteria in most cases, particularly in the case of Phoenix. The arbitral tribunal defined its duty as ensuring that only investments that are made in compliance with the international principle of good faith and do not attempt to misuse the system are protected, and in this context, it stated that investments which are against to the principles of international law, particularly principle of good faith, is not to be protected. From this point of view, even if the all investment criteria in Salini test were fulfilled in the present case, the lack of jurisdiction decision was rendered due to violation of the principle of good faith. For this reason, by means of both the Phoenix case and other precedents in this respect, we can reach the conclusion that a new element, "an investment made in the framework of good faith principle", or briefly "principle of good faith" was added to the Salini test.

Footnotes

1 Christopher Schreuer, The ICSID Convention – A Commentary, Cambridge University Press, 2001, p. 6.

2 Dikran Zenginkuzucu, Devlet ve Yabancı Yatırımcılar Arasındaki Uyuşmazlıkların Çözümünde Uluslararası Yatırım Uyuşmazlıklarının Çözümü Merkez (ICSID)'nin Kuruluşu ve İşlevi, Legal Yayıncılık 2012, p. 77.

3 http://investmentpolicyhub.unctad.org/ISDS, Access Date: 28.06.2017.

4 Zenginkuzucu, p. 114.

5 ICSID Convention, Article 25/1: The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.

6 Zenginkuzucu, p. 138.

7 Ziya Akıncı, Milletlerarası Tahkim, Vedat Kitapçılık, 2016, p.46.

8 Süleyman Dost, Yabancı Yatırım Uyuşmazlıkları ve ICSID Tahkimi, Asil Yayın, 2006, p. 161.

9 AMCO v. Indonesia, Introductory Note. ICSID Review – FILJ,, 1995, p. 160.

10 PSEG Global Inc. and Konya Ilgin Elektrik Uretim ve Ticaret Limited Sirketi v Republic of Turkey, ICSID Case No. ARB/02/5.

11 İnci Ataman Figanmeşe, "Son On Yıl İçinde Türkiye'nin Taraf Olduğu ICSID Davaları", Uluslararası Tahkim Kongresi Tebliğler Kitabı, Adalet Yayınevi, Ankara 2012, p. 21.

12 Şule Akyüz, "The Jurisdiction of Icsid: the Application of the Article 25 of Convention on the Settlement of Investment Disputes Between States and Nationals of Other States", Ankara Üniversitesi Hukuk Fakültesi Dergisi, Ankara 2003, Volume: 52, Issue: 3, p. 338.

13 Champion Trading Company, Ameritrade International, Inc. v. Arab Republic of Egypt, ICSID Case No. ARB/02/9.

14 ICSID Convention, Article 25/2: "National of another Contracting State" means:

15 Zenginkuzucu, p. 91.

16 Tokios Tokelès v. Ukraine, ICSID Case No. ARB/02/18.

17 Zenginkuzucu, p.94.

18 Dost, p. 156.

19 Fedax v. Venezuella, ICSID Case No: ARB/96/3, Jurisdiction, para. 21-26.

20 Salini Costruttori SpA and Italstrade SpA v. Morocco (ICSID Case No: ARB/00/4), Decision on Jurisdiction, para. 52.

21 Salini, para. 57.

22 Check for the similar decisions: Bayındır Insaat Turizm Ticaret ve Sanayi ve A.Ş. v. Islamic Republic of Pakistan (ICSID Case No: ARB/03/29), Joy Mining Machinery Limited v. Egypt (ICSID Case No. ARB/03/11), Jan de Nul N.V. v. Arab Republic of Egypt (ICSID Case No: ARB/04/13).

23 Mehmet Can Açıkalın, "Uluslararası Yatırım Uyuşmazlıklarının Çözüm Merkezi'nin (ICSID) Yargılama Yetkisine Dair Bir İnceleme: Saba Fakes v. Turkey", Prof. Dr. Ata Sakmar'a Armağan, Galatasaray Üniversitesi Hukuk Fakültesi Dergisi, 2011/1, p. 41-42.

24 Alex Grabowski, "The Definition of Investment under the ICSID Convention: A Defense of Salini", Chicago Journal of International Law: Vol. 15, No:1, p. 308.

25 Check for the similar decisions: Fraport v. Philippines (ARB/03/25), Cementownia v. Turkey (ARB(AF)/06/02); Hamester v Ghana (ARB/07/24); Amco Asia Corporations and Others v. Republic of Indonesia, (ARB/81/1); Plama Consortium Limited v. Republic of Bulgaria, (ARB/03/24); Inceysa Vallisoletana S.L. v. Republic of El Salvador (ARB/03/26).

26 Phoenix Action Ltd. v. Czech Republic, ICSID Case No: ARB/06/05, Award of 15 April 2009, para. 113.

27 Phoenix, para. 113-145.

28 Phoenix, para. 106.

29 PLC Arbitration, Bad Faith Transaction Is Not An Investment, (Last Access: 02.07.2017), https://uk.practicallaw.thomsonreuters.com.

30 Grabowski, p. 300.

31 Europe Cement Investment & Trade S.A. v. Republic of Turkey, ICSID Case No. ARB(AF)07/2, para. 171.

32 Europe Cement Investment, para. 175.

33 Alapli Elektrik B.V. v. Republic of Turkey, ICSID Case No. ARB/08/13, Excerpts of Award dated July 16, 2012, para. 416-417.

34 Inceysa Vallisoletana v El Salvador (Award), ICSID Case No ARB/03/26, 2 August 2006, para. 224.

35 Stephan W. Schill, "Good Faith Limitations On Protected Investments And Corporate Structuring", Amsterdam Law School Legal Studies Research Paper No. 2017-16, p. 7.

36 Schill, p. 7; Inceysa, para. 230-257.

37 Akyüz, p. 359.

38 Gustav FW Hamester GmbH & Co KG v Ghana (Award), ICSID Case No ARB/07/24, 18 June 2010, para. 123-124.

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