United States: ICSID Arbitrators - The World's Policemen?

Over the past thirty years, foreign investors who have suffered losses as a result of the actions of the host state where their investments were made have increasingly resorted to investment treaty arbitrations to seek to recover their losses. As readers will know, such proceedings are brought under a network of bilateral investment treaties (“BITs”) that spans the globe. 

Through BITs, both State parties to the relevant treaty frequently agree to the submission of disputes between one state party and investors having the nationality of the other State party to arbitration before an international arbitral tribunal. The tribunal will apply principles of international law to determine whether the host state has breached its obligations to protect the investment: key principles include fair and equitable treatment of investors, non-discrimination as between foreign investors and domestic businesses (or those from a ‘most favoured nation’), and a prohibition on expropriation, or nationalisation, of assets without effective compensation. 

The International Centre for the Settlement of Investment Disputes (“ICSID”) established under the Washington Convention of 1965, oversees and administers investment treaty arbitrations. ICSID provides a procedural framework and arbitration rules, and also offers a panel of qualified arbitrators from which appointments can be made.

Arbitral tribunals appointed under BITs or the ICSID framework wield considerable power. They can determine that sovereign States must pay very significant sums to private investors. Of course, the State parties to the relevant treaties will have voluntarily submitted to the jurisdiction of the tribunal, by giving their consent to arbitration to their (sovereign) counterparty to the treaty. Private investors benefit by virtue of their nationality, and must have made a qualifying investment in the territory State in question.

But even before an award is rendered, ICSID tribunals can make wide-ranging orders to protect the integrity of the arbitral process, or the rights of the parties on an interim basis. In this article, we look at how ICSID arbitrators may even order States to refrain from pursuing criminal proceedings against persons within their territory while an arbitration is on foot, in effect adjudicating the legality (or at least the permissibility) of prosecutions under the national laws of a sovereign state. This is a remarkable exception to a State’s ability to police its own territory. It is worth pausing to reflect on it.

Provisional measures

ICSID tribunals make orders preventing, restraining or staying criminal prosecutions or proceedings as ‘provisional measures’. Both the ICSID Convention and the ICSID Arbitration Rules provide for this remedy. Article 47 of the ICSID Convention states that:

Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party.

Rule 39 of the ICSID Arbitration Rules is similarly concerned with the ‘preservation of rights’. 

The ICSID Convention simply states that arbitrators can order “any” measures that preserve the “rights” of the parties. Neither the ICSID Convention nor the ICSID Arbitration Rules provide further guidance as to what kind of ‘rights’ may be preserved. The existence or nature of such rights may well be hotly contested in the early stages of arbitral proceedings, which is when applications for provisional measures are likely to be made. As we will see, ICSID jurisprudence shows that tribunals interpret the notion of ‘rights’ expansively, just as they do the reference to “any” provisional measures.

States often contest that an ICSID tribunal even has jurisdiction over the substantive dispute. Arbitrators will, however, readily award provisional measures before deciding any jurisdictional objections. This follows from Article 39(1) of the ICSID Arbitration Rules, which empowers a tribunal to award provisional measures “… at any time after the institution of the proceeding …”. Giving priority to applications for provisional measures means exposing respondents to orders made before the tribunal has determined whether the claimant really is a qualifying investor. It also means that tribunals will order provisional measures without undertaking a full review of the underlying facts. 

In Caratube International Oil Company LLP and Devincci Salah Hourani v Republic of Kazakhstan (ICSID Case No. ARB/13/13), the tribunal addressed this point, stressing that:

… the applicant’s burden of proof is that it must establish the requirements with sufficient likelihood, without however having to actually prove the facts underlying them. Moreover, the Tribunal’s assessment is necessarily made on the basis of the record as it presently stands; any conclusion reached in this decision could be reviewed if relevant circumstances were to change and would in any event not be binding on the Tribunal ...

The corollary of making the remedy of provisional measures available on this basis is that the claimant must convince the tribunal that the measures applied for are both ‘urgent’ (such that the issue cannot wait until the award on the merits) as well as ‘necessary’. It is implicit in these requirements that the applicant must show a risk of substantial and irreparable harm, in the sense that it could not be repaired by a subsequent award of damages. 

A number of tribunals have referred to the amended UNCITRAL Model Law (2006) when it comes to the test for awarding such measures (see for instance Burlington Resources Inc v Ecuador (ICSID Case No. ARB/08/5). Article 17(A) of the Model Law requires:

(a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted.

The UNCITRAL Model Law goes further than looking at the harm that the applicant wishes to prevent. Under Article 17(B), the tribunal must also be satisfied that there is a reasonable possibility of the requesting party succeeding on the merits of the underlying claim. In contrast, it appears that (at least some) ICSID tribunals will be much more reluctant to consider the apparent strength of the claim when balancing the rights and interests of the parties: for instance, Article 17(B) was not referred to in the decision in Burlington

Along similar lines, in EuroGas Inc and Belmont Resources Inc v Slovak Republic (ICSID Case No ARB/14/14) (Procedural Order No. 3), the tribunal, when deciding an application for provisional measures, cited earlier arbitral pronouncements and accepted that it could not “… examine in depth the claims and arguments on the merits of the case” (paragraph 70). The EuroGas arbitrators noted that it was necessary, and also sufficient, that the facts alleged by the claimant established the tribunal’s jurisdiction “at first sight”, but that these facts would not (and could not) be verified at that stage. On the facts, the EuroGas tribunal was persuaded that the claimant had set out a coherent prima facie argument that there was jurisdiction. The arbitrators therefore went on to consider whether the requirements for granting provisional measures were met (necessity and urgency). One may question whether there should have been at least some review of the merits of the underlying claim, even if only on a prima facie basis, or at ‘first sight’. If ICSID tribunals did that, orders for provisional measures may very well appear stronger.

What rights can be preserved?

The tribunal in EuroGas may have declined to look at the merits of the underlying claim (a reluctance in keeping with decisions by other ICSID panels) because of the nature of the rights that ICSID arbitrators will protect by granting provisional measures. Tribunals distinguish between substantive rights, so those that form part of the underlying claim, and procedural rights: the latter can be self-standing and independent of the underlying claim. As a matter of strict logic, if procedural rights are self-standing and deserving of protection, then they can also exist in respect of a claim that is weak or even bound to fail, always recalling that the tribunal has not yet found that the claim has no merit at the time of the application for provisional measures. While that premise can be criticised as favouring the claimant overmuch, procedural rights worthy of preservation in their own right are today firmly established in ICSID jurisprudence.

Professor Schreuer, one of the leading authorities on the interpretation of the ICSID Convention, describes why tribunals award provisional measures as follows (“The ICSID Convention: A Commentary, atpage 746):

[t]he purpose of provisional measures is to induce behavior by the parties that is conducive to a successful outcome of the proceedings such as securing discovery of evidence, preserving the parties’ rights, preventing self-help, safeguarding the awards’ eventual implementation and generally keeping the peace. They have to be taken at a time when the outcome of a dispute is still uncertain. Therefore, the Tribunal has to strike a careful balance between the urgency of a request for provisional measures and the need not to prejudge merits of the case.

Preserving or securing evidence is one of the most obvious forms that an order for provisional measures might take. An early example of this is found in Agip S.p.A. v Congo (ICSID Case No. ARB/77/1). The Government of Congo had nationalized Agip’s Congolese subsidiary, and had occupied the local offices. The tribunal ordered the Government to preserve all the documents located on the premises, to produce a list of what records existed and to present documents to the claimant on request. 

Right to protect the integrity of the arbitration and prevent aggravation of the dispute

Provisional measures can also be granted to protect intangible, procedural rights, such as a party’s entitlement to have the dispute resolved by the tribunal without undue or improper interference. As will be seen, provisional measures with regard to criminal proceedings are granted in order to protect such procedural rights.

In 2006, the tribunal in Biwater Gauff (Tanzania) Ltd v Tanzania (ICSID Case No. ARB/05/22) made a number of orders dealing with applications for provisional measures. In Procedural Order No. 3, the arbitrators noted it was settled that tribunals could order provisional measures to prevent any conduct that might harm or prejudice the integrity of the arbitral proceedings, or aggravate or exacerbate the dispute, in line with fundamental notions of fairness and due process. The tribunal’s power to protect the arbitral process itself is also recognised in Article 17 of the Model Law, which sets out the circumstances in which interim measures may be granted. Arbitrators can:

(b) Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself.

In this context, the Biwater tribunal further explained that provisional measures could be available to ensure that the arbitration was conducted in an orderly fashion and that there was a level playing field between the parties. They also stated that any attempts to conduct a trial by media, or put external pressure on parties, witnesses, experts or other participants, might be controlled by suitable orders for provisional measures. 

When criminal proceedings endanger the rights of the claimant

On the other side of the equation is the State’s sovereign freedom to uphold and enforce its national laws, and to prosecute those it suspects of having committed a crime in its territory - even if the suspected perpetrators happen to be claimants in an ICSID arbitration. Indeed, some ICSID claims have previously been dismissed on grounds that included fraud and forgery by the claimants in seeking to establish and advance a claim (see for instance Cementownia “Nowa Huta” SA v Republic of Turkey (ICSID (AF)06/2)). 

That a State should, as a matter of principle, be able to prosecute even an ICSID claimant if they are suspected of having committed fraud, whether or not the fraud is connected to the investment which is the subject matter of the arbitration, is uncontroversial. ICSID tribunals have affirmed that (EuroGas v Slovak Republic):

… that the right and duty to conduct criminal prosecutions is a prerogative of any sovereign State and that only exceptional circumstances may therefore justify that an arbitral tribunal order provisional measures which interfere with criminal proceedings.

In practice, arbitral tribunals nonetheless take the view that there are limits to this prerogative, and that they can set those limits. The formulation that has been increasingly adopted is that ‘a particularly high threshold must be overcome’ before a tribunal can interfere with criminal proceedings through provisional measures (Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia (ICSID Case No. ARB/12/14), at paragraph 72). Before looking at the kind of (exceptional) circumstances in which this high threshold might be overcome, it is worth identifying the jurisdictional or legal basis for orders interfering with the enforcement of national criminal law.

Article 26 of the ICSID Convention states that:

Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy.

This confers exclusive jurisdiction on an ICSID tribunal, and precludes a local or administrative proceedings with respect to the matters that have been referred to ICSID arbitration. This exclusive jurisdiction is, however, limited to civil proceedings between the same parties, with the same subject matter, as was stated in Lao Holdings N.V. v The Lao People’s Democratic Republic (ICSID Case No. ARB(AF)/12/6). 

It is clear, therefore, that Article 26 of the ICSID Convention does not provide a legal basis for provisional measures controlling criminal proceedings. The ICSID Convention was intended to deal with investment disputes: indeed, it was not intended to deal specifically with malicious prosecution, wrongful arrest, or other abuses in the administration of a State’s national criminal justice system. Such conduct could of course amount to expropriation or discriminatory, unfair and inequitable treatment of investors, and thus be in breach of a BIT if it led to the loss of the investment. Obviously, investors would need to discharge the usual burden of proof to establish such a claim on the merits.

What is more, the tribunal in Lao Holdings expressly stated that (at paragraph 21):

Neither the ICSID Convention nor the BIT imposes a prohibition on a State that enjoins it from exercising criminal jurisdiction over [the ordinary laws of general application prohibiting bribery, corruption, money laundering and embezzlement]. In particular, they do not exempt suspected criminals from investigation or prosecution by virtue of their being investors. The Tribunal rejects any suggestion that ordinary domestic criminal law of general application was intended to be or is constrained by the initiation of ICSID proceedings under the BIT.

Having said that, the tribunal then nevertheless went on to find that, on the facts before it, Laos ought to be “constrained” as to how it enforced the ‘ordinary domestic criminal law of general application’. The arbitrators acknowledged that although Laos had the sovereign power to prosecute crimes, and the power to investigate whether the claimants had made their investments in compliance with the general laws against bribery and corruption, these prosecutorial powers “… of course must be exercised in good faith and with due respect for Claimants’ rights”.

In Churchill Mining v Indonesia, the tribunal noted that (paragraph 84):

In any event, ICSID arbitration does not confer “automatic immunity” from criminal proceedings, which fall outside of the jurisdiction of ICSID and this Tribunal.

Read in isolation, this statement clearly does not reflect arbitral practice: ICSID tribunals do assume jurisdiction over criminal proceedings by ordering provisional measures (and the tribunal in Churchill itself would have been prepared to intervene in Indonesia’s criminal justice system if there had been exceptional circumstances). But saying that criminal proceedings are ‘beyond the jurisdiction of ICSID arbitrators’ is, technically speaking, correct.

What do ICSID tribunals rely on as the jurisdictional basis for restraining criminal proceedings?

The consensus that appears from a number of awards is that where criminal proceedings are closely connected with the arbitration, are specifically aimed at interfering with it, or are designed to harass and intimidate the claimant or its witnesses, then they endanger the integrity of the arbitral process, or infringe the claimant’s right not to have the dispute aggravated. These rights, which the relevant decisions say are being protected or preserved under Article 41 of the ICSID Convention, are unwritten. They are the result of jurisprudence created by arbitral tribunals. 

In Eurogas, the tribunal (citing the earlier decision in Churchill) held that (at paragraph 83):

An allegation that the status quo has been altered or that the dispute has been aggravated needs to be buttressed by concrete instances of intimidation or harassment.

From this, it appears that it is objectionable conduct (harassment and intimidation) that would allow an ICSID tribunal to intervene. However, it needs to borne in mind that the allegedly objectionable conduct relates to the exercise of the State’s sovereign prerogative, a matter which “falls outside the jurisdiction of ICSID …” (to quote the tribunal in Churchill). Misconduct alone does not appear to be a sufficient jurisdictional basis - even though it is plainly desirable that tribunals should be able to prevent harassment or malicious prosecution.

In Quiborax SA, Non Metallic Minerals SA v Bolivia (ICSID Case No ARB/06/2), the tribunal noted that Bolivia’s sovereign power to prosecute conduct that might be criminal under national law had to be exercised in ‘good faith’ and “…respecting Claimants’ rights, including their prima facie right to pursue this arbitration.” This seems to impose two requirements: the State must act in good faith, and (additionally) it must respect the right of the claimants to bring a ‘prima facie’ case before an ICSID tribunal. 

Turning to the first requirement, the principle of good faith is deeply ingrained in public international law. BITs are treaties, or ‘agreements’ between sovereign States. They are to be construed in accordance with public international law, as enshrined in the Vienna Convention on the Law of Treaties. Article 26 of the Vienna Convention, entitled “Pacta sunt servanda”, provides that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”. Article 31 states that a “… treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”. This applies to every BIT. 

The Special Rapporteur commenting on the drafting of the Vienna Convention made it clear that (International Law Commission, “Report of the International Law Commission Covering its 16th Session, 727th Meeting, 20 May 1964”):

… the intended meaning [of Article 26] was that a treaty must be applied and observed not merely according to its letter, but in good faith. It was the duty of the parties to the treaty not only to observe the letter of the law, but also to abstain from acts which would inevitably affect their ability to perform the treaty.

More recently, the International Court of Justice has interpreted Article 26 of the Vienna Convention as meaning that (Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Merits) [1997] ICJ Rep 7, 79):

… the purpose of the Treaty, and the intentions of the Parties in concluding it, … should prevail over its literal application. The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.

If a State purposefully set out to sabotage an ICSID arbitration through national criminal proceedings or prosecutions, then that would be in bad faith, and would make it impossible to honour the promise given (sovereign to sovereign) under the applicable BIT or the ICSID Convention: to allow investors to refer disputes relating to qualifying investments to an international tribunal for resolution.

The Vienna Convention and the principle of good faith would allow ICSID tribunals to put forward a solid jurisdictional basis for interfering with the sovereign right to conduct criminal proceedings: by entering into the relevant BIT, the State conceded and agreed that it would not use its sovereign powers so as to undermine or frustrate the arbitration agreement with investors. If more regard were paid to these principles of public international law in the analysis set out in ICSID decisions, they might be seen to have more legitimacy than measures based on the rights of non-aggravation of the dispute, or the tribunal’s inherent jurisdiction to protect the arbitral process.

The second requirement referred to by the tribunal in Quiborax is the claimant’s prima facie right to pursue the claim. The tribunal elaborated on this right by referring to an earlier decision in Plama Consortium Limited v Bulgaria (ICSID Case No. ARB/03/24) (at paragraph 40) which noted that provisional measures could protect the claimants’:

… ability to have [their] claims and requests for relief in the arbitration fairly considered and decided by the arbitral tribunal.

One purpose of the BIT is obviously to allow investors to refer disputes to arbitration, and (in line with the principle of good faith) States should not frustrate that purpose. However, the reference to a prima facie case suggests that the tribunal will not investigate the merits - as noted, when provisional measures are being applied for, tribunals tend to consider only the question of jurisdiction on a prima facie basis. 

When do States cross the line?

In Quiborax v Bolivia, the Bolivian authorities began to audit certain companies associated with the claimant and the investment in respect of which the arbitration had been commenced. Thereafter, the State prosecutor commenced criminal proceedings against a number of persons closely associated with the claimant and the arbitration, including one of the individual claimants, his business partner and legal counsel: the gist of the alleged crimes was that the share certificates by which the claimants sought to prove their ownership of the company that had held the investment were forged. The Bolivian authorities then also seized a range of company records, and began to interview (or interrogate) potential witnesses that were thought to give evidence in the arbitration.

The tribunal found that Bolivia’s conduct merited provisional measures protecting the claimants, and endangered the integrity of the arbitral process. Bolivia had referred to the ICSID proceedings as harmful to the State’s interests by their very existence:

… the very nature of these criminal proceedings is bound to reduce their willingness to cooperate in the ICSID proceeding. Given that the existence of this ICSID arbitration has been characterized within the criminal proceedings as a harm to Bolivia, it is unlikely that the persons charged will feel free to participate as witnesses in this arbitration.

The claimants had been deprived of evidence, in the form of corporate records that been seized, and because witnesses had been discouraged from giving evidence. Measures to protect the claimant were both necessary and urgent, as they could not wait for the final award: without the evidence, the final award could not fairly deal with the claimants’ case.

Similarly, in Lao Holdings, the tribunal noted a very close and direct relationship between the criminal proceedings and the arbitration. The tribunal found that the primary purpose of the criminal investigations was for the State to secure evidence that could be used against the claimants in the arbitration. Laos also sought to pursue an onerous and intrusive investigation of a number of witnesses and potential witnesses at a time when the claimant was heavily engaged in final preparations for the hearing. The tribunal concluded that the integrity of the arbitral process was threatened, and refused to permit criminal investigations that were directly related to the arbitration.

In both these cases, the tribunals were satisfied that the claimants had established the required high threshold, and had shown that exceptional circumstances existed that justified the tribunal intervening in the sovereign affairs of the respondent State. 

Drawing the threads together

Drawing the threads together, provisional measures restraining criminal proceedings might be granted where:

  • There is a strong and direct link between the criminal proceedings and the ICSID arbitration.
  • The State’s power to institute criminal proceedings is used to collect evidence for use in the arbitration which will undermine the integrity of the arbitral process.
  • The tribunal is satisfied that the criminal proceedings have a chilling effect on potential witnesses in the arbitration.
  • There are concrete instances of intimidation or harassment (as referred to in Churchill Mining).

Provisional measures will only be granted where the requirements of urgency and necessity are met. This has not troubled tribunals greatly, as the risk of the claimant being unable to present its case is seen as sufficiently serious to merit protective measures straightaway. Of course, the State could always continue with criminal proceedings after the award has been rendered (so the State’s ability to enforce its national law is not subject to the same immediate threat). 

In conclusion, the fact that ICSID tribunals have intervened where States have been guilty of misconduct or have acted in bad faith with direct regard to the arbitration proceedings is to be commended. However, future awards might perhaps seek to set out the jurisdictional basis more fully by reference to the principle of good faith in public international law, which would help to meet any criticism that tribunals meddle in the sovereign affairs of States without justification. A final point that merits further consideration is whether tribunals should also satisfy themselves that a claimant seeking provisional measures aimed at preserving the right to present its case, or protecting the arbitral process itself, actually has a good case, at least on a prima facie basis. It is suggested that tribunals would usually have sufficient information on the record to form a view at the time when applications for provisional measures are being made. Again, if that were done, critics of investment arbitration would find it more difficult to allege pro-investor bias.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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