The Power V Rules Conundrum In The WTO & Investor-state Dispute Settlement Systems

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It is a remarkable fact that the American Journal of International Law was founded by a group of publicists who believed that international law could abolish or at least substantially diminish ...
India International Law
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Introduction

It is a remarkable fact that the American Journal of International Law was founded by a group of publicists who believed that international law could abolish or at least substantially diminish the role of power in world affairs.1 The classical legal thinkers believed that power and coercion could become far less prominent in world affairs through the development of international law2 arguing that international institutions fostered agreement because they allowed the discovery of harmony and could at the least provide for a neutral, apolitical venue to settle international disputes.3 The realists considered that international law is usually an independent variable or a meaningful intervening variable that affects behavior, defines opportunities and incentives that re-channel or reconfigure the behavior of powerful actors.4

Nonetheless, power has, is and will be omnipresent in the international sphere and as has been remarked, it has its privileges, and one is, the ability to control international negotiations and dispute settlement.

International diplomacy therefore has not been immune from its effects. Of the two techniques involved in international diplomacy, one is the power-oriented technique where settlement takes place by negotiation and agreement with reference to relative power status of the parties. On the other hand, lies the rule-oriented technique where the settlement takes place by negotiation or decision with reference to norms and rules to which the parties have previously agreed.5

A mixture of both can be observed in international institutions and legal systems6 including in the legal regimes pertaining to dispute settlement in international trade and international investment. To decipher whether a shift has taken place from a power-based to a rules-based dispute settlement system, what is better, than to consider the evolution of dispute settlement from the early days of the GATT and FCN treaties to that under the World Trade Organization (WTO) and Bilateral Investment Treaties (BIT) or International Investment Agreements (IIAs) or like thereof.

The early days

International trade and the GATT as an institution

The General Agreement on Tariffs and Trade 1947 (GATT 1947) was flawed to start with. It was never conceived as an institution but was supposed to be placed within the institutional setting of the International Trade Organization (ITO), the charter of which called for rigorous dispute settlement procedure (contemplating the effective use of arbitration) and even appeal to the International Court of Justice (ICJ).7 With the failure of the United States to get Congressional approval for the ITO charter, the GATT was left to fend for its own and to rely on the skeletal provisions on dispute settlement in its text including a hastily put together GATT Secretariat.

Articles XXII and XXIII of the GATT 1947 became the two main provisions around which early GATT disputes revolved. However, it was Article XXIII that was at play most frequently and that only provided an outline as to how disputes were to be dealt with, without establishing any formal procedures for handling them.

It thus fell on the GATT member States (called Contracting Parties then) to improvise, and they did. Dispute settlement under the GATT shifted from the working party model to the panel of experts model around 1955, a move that saw the appointees to the panel work in their own capacity instead of being representatives of any government.8 This was the earliest indication of neutral third-party adjudication promoting a rules-based system. Moreover, as Prof. Jackson argued, a number of panel reports issued during the first several decades of the GATT contained reasoning that resembled opinions of a court of law including the citing of precedents.9

However, disenchantment towards the system started to crop up with the European Union (European Communities then) and Japan starting to show interest in negotiating solutions to disputes rather than adjudicating them before a panel.10 Adding to it was the issue of the ability of a member State to 'block' the creation of a panel by not agreeing to its formation. Similarly, even after having litigated, a member State could 'block' the adoption of the panel report, which gave the losing party the ability to veto an adverse ruling.11 The underlying notion was that all GATT actions, even the adoption of a panel report, had to be done by positive consensus.

Moreover, panels were not necessarily obliged to decide. Panels could, if they wished, hold that they did not know how to interpret a particular provision, or how to apply a particular provision in the circumstances presented.12 Taken together, the confidence in the dispute settlement system was seriously undermined.

Diplomatic protection of investment

Diplomatic protection envisaged that an injury to a state's national was an injury to the state itself, for which it could claim reparation from any responsible state. The Permanent Court of International Justice (PCIJ) confirmed the principle as 'an elementary principle of international law".13 Diplomatic protection involved consular action, negotiation, mediation, judicial and arbitral proceedings, reprisals, severance of diplomatic relations, economic pressure and the use of force.14

During this time, the security of person and property of a national thus inevitably became a concern of their government. That concern manifested itself in the vigorous assertion of diplomatic protection and in the enhanced activity of arbitral tribunals. Often the arbitrations occurred under the pressure of actual or threatened military force by the aggrieved states.15

Powerful states had a free hand to use diplomatic protection as means to settle investment disputes and frequently resorted to the use of 'gunboat diplomacy'. France intervened in Mexico in 1838 and 1861, the United Kingdom threatened naval intervention in the 1836 Sicilian sulphur monopoly dispute, the Anglo-French forces blocked the Montevideo harbour in 1850. Italy sent a vessel to Colombia to rescue an Italian national in 1885 and later sent its fleet to enforce an arbitral award regarding the property of an Italian citizen and the embargo of Venezuelan ports by Great Britain, Germany and Italy in 1902-03. These are few instances that reflect the extensive use of 'gunboat diplomacy'.16

The Calvo doctrine came about in response to the frequent use of diplomatic protection and accompanying use of force. The Calvo doctrine was premised on the following:17

  1. that equality, sovereignty and independence are paramount rights of states and being so, they have the right to expect non-interference from other states, and
  2. that aliens have to abide by the local law of the state where they reside without invoking diplomatic protection of their governments in the prosecution of claims arising out of contracts, insurrection, civil war or mob violence.

Such was the force of the Calvo doctrine that it gave birth to an heir, the Calvo clause. One of the earliest known applications of this clause was in the Grell contract, which led to the Orinoco Steamship Company dispute.18 At its logical extreme therefore, the Calvo doctrine sought to abolish the principle of diplomatic protection. Close on its heels came the Hague Convention II of 1907, respecting the Limitation of the Employment of Force for the Recovery of Contract Debts (Drago-Porter Convention).19 However, the Drago-Porter Convention, still retained the use of force as legal means of exercising diplomatic protection when a state failed to accept an offer of arbitration or any resulting award.20

Winds of change

The WTO Dispute Settlement Understanding

Coming back to the trade front, in 1986, a ministerial meeting opened in Punta Del Este, Uruguay. A key area for discussion was to find out whether the difficulties experienced with GATT panels were principally the fault of procedures or the rules they were trying to enforce, and in that process take steps to strengthen it.21

The United States led group believed that the chief purpose of dispute resolution was to determine 'right' and 'wrong', to deliver a legal judgment to which the losing party had to comply.22 The European Union led group saw dispute settlement as an extension of conciliation under Article XIII of the GATT 1947 with the aim, less to reach legal judgments than to overcome the particular legal problem.23

In a positive development, by the end of 1991, negotiators had resolved the crucial questions of what kind of agreement should be required to set up a panel, how to adopt a panel report and to accept a report from the Appellate Body. This was done by retaining the consensus rule but turning it on its head i.e., the so-called negative consensus, i.e., all the member states had to agree not to do a certain act.24

Thus, with the establishment of the WTO in 1995, changes, some far reaching, were introduced under the new Dispute Settlement Understanding (DSU) indicating that the dispute settlement system not only moved towards rule integrity but also created detailed trappings of judicial behavior. Some of the key changes included:

  1. establishing a panel and publishing, a panel report which was adopted (subject to being appealed) automatically unless the Dispute Settlement Body (DSB) decided by consensus not to adopt it.25 In contrast, in the erstwhile GATT system, consensus had the opposite meaning, as the establishment of a panel or the adoption would be declined if one member state objected to it.
  2. a judiciary type standing Appellate Body26, the crown jewel consisting of seven experts in law empowered to review, amend or reverse a panel's legal findings as well as conclusions. This was an improvement over the old system where, a losing party would be motivated to block the adoption of a panel report in the absence of an appeal mechanism.
  3. unlike the fragmented Tokyo Round Codes, the DSU extended to all the covered agreements27 as enumerated under Appendix 1 of the DSU in contrast to the multiple dispute settlement procedures under the GATT. The WTO, and all of its agreements, was a single package that members had to join on an all or nothing basis including the DSU, which applied to all covered agreements.
  4. fixing timelines for each step. This went a long way to enable members to not only foresee the time and costs of dispute settlement, but also help speed up the process and enhance efficiency.
  5. improving the participation and surveillance mechanism for implementation of decisions that was virtually non-existent under the GATT 1947.28 This ensured that DSB recommendations (based on adopted panel/Appellate Body reports) were implemented.
  6. with regards to enforcement and implementation, the DSU offered two options for dealing with non-compliance.29 The first, compensation, usually in the form of a tariff increase against the offending member. Second, the DSB could impose discriminatory countermeasures against the offending member under other WTO agreements that had nothing to do with the dispute so long as the monetary value of cross-retaliation was not greater than the harm caused by the WTO-violation.

The DSU was therefore instrumental in paving the way for a rules-based dispute settlement system under the WTO.

FCN Treaties, early BITs, ICSID and dispute settlement

The first forms of bilateral treaties containing rules on investment protection were the friendship, commerce and navigation treaties (FCN Treaties) concluded by the United States. While these treaties contained provisions protecting against expropriation, requiring full protection and security, fair and equitable treatment, their primary purpose was to establish closer commercial and political relations between the contracting parties.30 The post-war FCNs guaranteed equitable treatment and the most constant protection and security to property of foreign nationals and companies, which could not be taken without payment of just compensation. Rules were thus put in place on how to regulate the conduct of states.

However, dispute resolution provisions in FCN Treaties conferring jurisdiction on the ICJ covered disputes involving the interpretation or application of the treaty which meant that an investor did not have a standing to bring a claim directly against the host state. Moreover, it did not relieve investors of the need to exhaust local remedies and to persuade their home state to espouse their claim before pursuing a remedy under international law.31

The specific development of truly investment focused BITs, which are sometimes referred to as the 1st generation BITs, was in response to the uncertainties and inadequacies of the customary international law, of state responsibility for injuries to aliens and their property.32 The Germany-Pakistan BIT of 1959 is considered to be the first BIT specifically designed for investment protection. However, for the purposes of dispute settlement it only provided for state-to-state dispute settlement before the ICJ if the parties agreed or before an arbitral tribunal upon the request of one of the parties.33

In 1961, Aron Broches, the General Counsel of the World Bank proposed to create a mechanism for the impartial settlement of international investment disputes. Consequently, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 1965 (the ICSID Convention) came into existence. The aim of the ICSID Convention was to provide a forum for conflict resolution in a framework which carefully sought to balance the interests and requirements of all the parties involved, and attempted, in particular, to 'depoliticize' the settlement of investment disputes.34

The ICSID Convention provided a legal and organizational framework for the arbitration of disputes between contracting States and investors who qualified as nationals of other contracting States. Investor-state disputes were allowed to be arbitrated without interference from domestic political or judicial organ in the same manner as a dispute between states that could be made subject to international adjudication by an international court or tribunal.35

That leads to the question as to why the ICSID Convention was so unique in the scheme of promoting rule-integrity.

  1. For starters, it permitted an investor (natural or juridical) read with definition in the relevant BIT to bring a direct claim against a host state in international proceedings.
  2. The ICSID Convention provided that, where the parties have consented to ICSID arbitration, the consent operates to exclude any other forum or remedy.36
  3. The ICSID Convention prohibited the use of diplomatic protection once a claim was submitted, except in cases where there was a failure to comply with the award.37
  4. Where a state had consented to arbitration, it could not unilaterally withdraw from the same nor require that there be an exhaustion of local remedies unless this had been made an express condition of its consent to arbitrate.38
  5. The de-localization of the dispute meant that the arbitration and consequent award were subject solely to the ICSID Convention rather than national law. Awards made by ICSID tribunals became binding on the parties and could only be annulled by an ad hoc committee39 under limited grounds. This was designed to prevent national courts from reviewing the merits of ICSID awards.
  6. Finally, ICSID awards could be automatically recognized before the courts of the Member States "as binding and ... as if it were a final judgment of a court in that State."40 Furthermore, the responding state was prevented from invoking its public policy (ordre public) against the enforcement of an ICSID award.41

It is abundantly clear that, unlike investment protection in the early 20th century and under the 1st generation BITs, the substantive right conferred on an investor to bring a claim along with the procedural safeguards not only during the conduct of the arbitration but also at the time of enforcement, showed a marked shift in the desire to create a rules-based system for resolving investment disputes.

Evaluating the systems

WTO DSU – mapping its track record

In seeking to ascertain whether the DSU has indeed succeeded in creating a rules- based dispute settlement system without relevance to relative power status of the parties, one of the indicators would be to analyze the frequency of usage of the dispute settlement mechanism. After all, "a tribunal that is used is more successful than a tribunal that is not used."42

As of December 2021, WTO members referred 607 disputes to the DSB, not that all required formal rulings to resolve them.43 The first five years of the DSU witnessed the United States and the European Union making extensive use of the system. Though the system was indeed widely used, the conspicuous absence of developing countries resorting to the DSU was evident. The 2000-2004 period saw a decline in the usage of the system. However, this period witnessed a sharp increase in developing country usage of the system.44 Since 2000, developing countries have been the complainants in nearly two thirds of all complaints. Also, significant to note in this regard was the evolution of the role of the United States from being the principal complainant to becoming the principal respondent.45

Another critical factor in evaluating the success of a rules-based system that has been designed by sovereign states has to take into account the willingness of the states to play by the rules and accept decisions. As of December 2020, compliance panels have been established in 51 disputes.46 In 33 of these disputes, the compliance panel's report was appealed. Overall, there has been a positive record of Members complying with adverse rulings, which has been instrumental to the success of the WTO dispute settlement system.47

ISDS – mapping its track record

Unlike the WTO system, which is highly centralized, the investor-state dispute settlement (ISDS) system is fragmented. There is no multilateral instrument by virtue of which substantive minimum standards have been defined. Neither is there a centralized dispute settlement mechanism. Even for ICSID arbitration, tribunals are established ad hoc and, on a case-to-case basis.48 And by no means is the ICSID Convention the only means for resolving investment disputes.

That said, it is safe to assert that the massive proliferation of BITs/IIAs, which seek to include ISDS mechanism, be it under ICSID or otherwise (for instance, pursuant to the United Nations Commission on International Trade Law (UNCITRAL) Rules), indicate the desire to create a rules-based dispute settlement system. This is because ISDS creates a neutral forum that offers investors the possibility of a fair hearing before international tribunals that are unencumbered by domestic political considerations and able to focus on the legal issues in the dispute.49

Furthermore, the tendency to include ISDS in BITs/IIAs can be interpreted to signify the intent of states to move away from seeking recourse to diplomatic protection, which, as discussed above, included elements of power-based settlement. Such has been the influence of BITs/IIAs that the ICJ noted that "the role of diplomatic protection has somewhat faded, as in practice recourse is only made to it in rare cases where treaty régimes do not exist or have proved inoperative".50 ISDS thus continues to remain a regular feature in BIT/IIAs (93% of the BITs have ISDS51) and is viewed by many states as a cornerstone of investment protection. It serves as a procedural enforcement mechanism for the core substantive provisions of a treaty.52

Another key indicator, qua the confidence that the ISDS system reposes on an investor for resolving disputes in a neutral manner lies in the fact that it has seen heavy usage. The total count of known ISDS cases reached 1,190 at the end of 2021.53 The number of cases has increased rapidly, especially over the last ten years. ICSID registered a record 66 new cases in 2021 under the ICSID Convention while 20 cases were administered under 'non-ICSID' arbitral rules, including 14 cases that applied the UNCITRAL rules.54

As for the decisions in ISDS cases, 38% of the concluded cases were decided in favour of the state while 28% were decided in favour of the investor, with monetary compensation awarded. 19% of the cases were settled and in most of such cases, the settlement terms remained confidential. Looking at cases post 2000, instances of non-compliance have increased and in 40% or more cases where a state lost, enforcement proceedings had to be initiated and several disputes required the involvement of the investor's home State.55 Concerns remain over cases initiated against Argentina, Venezuela, Russia, Ecuador and Egypt and to some extent India.

Conclusion: backsliding of rule integrity and the return of power?

It is undeniable that the trade dispute settlement system with the advent of the WTO has seen a considerable shift from the trappings of a power-based to a rules-based system. Yet, any organization is a sum total of its whole i.e., as a member driven system, shortfalls, as they arise, perhaps have to be attributed to the collective will of the members. In that context, events, some recent and some not so, could be interpreted to indicate the gradual return of the trappings of power in the settlement of international trade disputes.

One need not look further than at the paralyzed Appellate Body which has been inquorate since 2019 and unable to function. This has led to a string of so-called appeals "into the void" by a losing member state of an adverse panel report. In the absence of a fully functioning Appellate Body, the losing member state is free to continue with a WTO-inconsistent measure in the name of exercising its right to appeal. This has had a chilling effect on the system with only 5 requests for consultations filed in 2020 and 9 in 2021 complaining about WTO-inconsistent measures.

In addition, the rise in the use of the national security exception clause has somewhat depleted confidence in a system already under stress. Although to the credibility of the WTO panels who have repeatedly ruled that national security exceptions are justiciable, the frequent use of the exception in recent times could in practice start a race to the bottom if unchecked.

Lastly, transparency issues regarding mutually agreed solutions under the WTO dispute settlement mechanism remain. In the absence of a clear and concise definition of a mutually agreed solution under Article 3.7 of the DSU, the problem concerns the practice where member states seek to conclude amongst themselves specific "deals", the legal nature or "DSU classification" of which remains unclear.56 Therefore, by engaging in sui generis systems of settlement, contents of which are often confidential and may end up adding or diminishing treaty obligations, one could argue that the use of power seeps in through the backdoor.

As for the ISDS system, non-compliance with arbitral awards poses a serious risk to the rules-based dispute settlement system. States at the receiving end of adverse arbitral awards have started to re-think their approach to international investment and ISDS altogether which has prompted observations regarding the potential revival of the Calvo doctrine.57 Venezuela, Bolivia and Ecuador have denounced the ICSID Convention and several BITs while their new constitutions contain provisions unfriendly to international arbitration. India has terminated majority of its BITs and has started renegotiating.

Equally concerning is the inconsistency in ISDS arbitral decisions which tend to chip away at the legitimacy of a rules-based dispute settlement system. Inconsistency in decision making has generally arisen in58: (a) different tribunals coming to differing conclusions about the same standard in the same treaty59; (b) different tribunals constituted under different treaties coming to differing conclusions involving the same facts, related parties and similar substantive rights60; and (c) different tribunals constituted under different treaties considering disputes involving similar commercial situation and substantive rights but coming to different conclusions.61

Consistency of decisions after all increase predictability. And predictability allows both states and investors to orient their behavior in greater confidence, with more certainty about the consequences of their actions.62 Consistency, then, would legitimize the exercise of law-making powers by ISDS arbitrators, no matter how bitter this, as a statement, is for a state to swallow. As has been succinctly put by Prof. Kaufmann-Kohler, it as an arbitrator's "moral obligation to follow precedents so as to foster a normative environment that is predictable"63. After all predictability and security lies at the heart of the international trading and investment systems.

Based on the above, while it may be safe to posit that dispute settlement in international trade and international investment are built on structures and systems having at its core, elaborate legal regimes for dispute settlement based on rules, off late, the systems are under significant stress. This, is turn has led to the visible emergence of power dynamics in settling disputes although this is not greatly alarming at this point.

All said and done, the success or failure of any dispute settlement system, be it the WTO or ICSID or ad hoc in the ISDS sphere, the interpretative exercise at play concerns international agreements, which are in the final analysis, agreements among sovereign states and thus compliance and enforcement depends ultimately on the willingness of member states to play by the rules and to accept decisions, even adverse ones.

Footnotes

1 Richard H. Steinberg & Jonathan M. Zasloff, "Power and International Law", 100 AJIL 64 (2006).

2 Richard L. McCormick, From Realignment to Reform: Political Change in New York State: 1893-1910, (1st Ed., Cornell University Press, 1981), p. 112.

3 Richard Olney, "The Development of International Law", 1 AJIL 418 (1907), p. 327. See also, L. Oppenheim, "The Science of International Law: Its Task and Method", 2 AJIL 313 (1908), p. 320.

4 Ibid 1, p. 76.

5 John H. Jackson, The World Trading System, (2nd Ed., The MIT Press, Cambridge and London, 1997), p.108.

6 Ibid 5, pp. 109-110.

7 Charter of the ITO, Chapter VIII, Articles 92-97. Final Act and Related Documents, Interim Commission for the International Trade Organization, New York, 1948. (https://www.wto.org/english/docs_e/legal_e/havana_e.pdf ).

8 Ibid 5, p. 63.

9 Ibid 5, p. 61.

10 Robert E. Hudec, Adjudication of International Trade Disputes (Great Britain, Trade Policy Research Centre, 1978), 22.

11 For example, see European Economic Community — Production Aids Granted on Canned Peaches, Canned Pears, Canned Fruit Cocktail and Dried Grapes, GATT Panel Report, L/5778, 20 February 1985, unadopted.

12 For example, see European Economic Community — Subsidies on Export of Wheat Flour, GATT Panel Report, SCM/42, 21 March 1983, unadopted.

13 The Mavrommatis Palestine Concessions (1924) PCIJ Ser. A, No. 2 at 12.

14 Sachet Singh & Sooraj Sharma, "Investor-State Dispute Settlement Mechanism: The Quest for a Workable Roadmap", Merkourios - International and European Law: General Issue 2013 - Vol. 29/76, p. 90.

15 H.J. Steiner & D.F. Vagts, Transnational Legal Problems: Materials and Text, 2nd edn (Mineola, N.Y.: Foundation Press, 1976), 357.

16 Alexis Mourre, "Perspectives of International Arbitration in Latin America", American Review of International Arbitration, Volume 17, No. 4, p. 597 (2006). See also, infra 32, p. 9.

17 Carlos Calvo, Le Droit Internattonal Theorique et Pratique, 5th edition, (Paris, 1896), Vol, sec. 256, pp. 231-232.

18 Lionel Morgan Summers, "The Calvo Clause", Virginia Law Review, Vol. 19, No. 5 (Mar., 1933), pp. 459-484.

19 Article 1, Paragraph 1.

20 Article 1, Paragraph 2.

21 John Croome, Reshaping the World Trading System: A History of the Uruguay Round, (World Trade Organization, 1995), p. 147.

22 Ibid 21, p. 149.

23 Ibid 21, p.149.

24 Ibid 21, p. 324.

25 Articles 6 and 16, DSU.

26 Article 17, DSU.

27 Article 1, DSU.

28 Article 21, DSU.

29 Article 22, DSU.

30 Stephan W. Schill, The Multilateralization of International Investment Law, (Cambridge University Press, 2009), pp. 29-30.

31 Kenneth J. Vandevelde, "A Brief History of International Investment Agreements", 12 U.C. Davis J. Int'l L & Pol"y, 2005, 157 at p. 165.

32 Andrew Newcombe & Lluis Paradell, Law and Practice of Investment Treaties: Standards of Treatment, (Kluwer Law International, The Netherlands, 2009), 8, p. 41.

33 Article 11(2), Germany-Pakistan BIT. (Germany - Pakistan BIT (1959) | International Investment Agreements Navigator | UNCTAD Investment Policy Hub).

34 Convention on the Settlement of Investment Disputes betwveen States and Nationals of Other States, Mar. 18, 1965, 17 U.S.T. 1270. World Bank Executive Directors' Report, 4 ILM 524 (1965), para. 13. See also, Ibrahim F.I. Shihata, "Towards a Greater Depoliticization of Investment Disputes: The Roles of ICSID and MIGA", ICSID Review—Foreign Investment Law Journal, Vol. 1, No. 1, 1-15 (1986).

35 Ibid 32, p. 28.

36 Article 26, ICSID Convention.

37 Article 27(1), ICSID Convention.

38 Articles 25(1) & 26, ICSID Convention.

39 Article 52, ICSID Convention.

40 Article 54(1), ICSID Convention.

41 Ibid 30, p. 46. Note that this mechanism differs from enforcement under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the New York Convention), which in Article V permits the award debtor to invoke public policy as a ground for resisting enforcement before the courts of the state where an application for enforcement has been made.

42 Eric A. Posner & John C. Yoo, A Theory of International Adjudication, 40 (Feb. 2004) (U. Chi. L. Sch., John M. Olin Law & Econ. Working Paper Series No. 206), (http://www.law.uchicago.edu/files/files/206-eap-jy.tribunals.pdf)

43 "Dispute settlement activity – some figures", (https://www.wto.org/english/tratop_e/dispu_e/dispustats_e.htm)

44 William J. Davey, "The WTO Dispute Settlement System at 18: Effective at Controlling the Major Players?", EUI Working Paper RSCAS 2013/29, European University Institute, Robert Schuman Centre for Advanced Studies, pp. 2-3.

45 William J. Davey, "The WTO Dispute Settlement System: The First Ten Years", 8 Journal of International Economic Law 17, (2005).

46 Ibid 43.

47 Bruce Wilson, "Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings: The Record to Date", 10 (2) Journal of International Economic Law 397, (2009).

48 El Paso Energy International Co. v, Argentina, ICSID Case No. ARB/03/IS Decision on Jurisdiction, 27 April 2006, para. 39.

49 Investor State Dispute Settlement, UNCTAD Series on Issues in International Investment Agreements II, (New York, Geneva, 2014), p. 24, (http://unctad.org/en/PublicationsLibrary/diaeia2013d2_en.pdf)

50 Republic of Guinea v. Republic of Congo, Preliminary Objections, Judgment of 24 May 2007, p. 613.

51 Elvire Fabry & Giorgio Garbasso, "ISDS in the TTIP – The Devil is in the Details", Policy Paper 122, 16 January 2015, p. 4 (http://www.institutdelors.eu/media/ttipisds-fabrygarbasso-nejdi-jan15.pdf?pdf=ok)

52 Ibid 49, p. 20.

53 IIA Issue Note, Facts on Investor-State Arbitrations in 2021, UNCTAD, July 2022.

54 2021 Caseload Statistics, ICSID, February 2022, ( https://icsid.worldbank.org/news-and-events/comunicados/icsid-releases-2021-caseload-
statistics#:~:text=Moreover%2C%201.5%25%20percent%20of%20cases,of%20the%20parties%20to%20act.&text
=ICSID%20tracks%20the%20gender%20and,of%20investor%2DState%20dispute%20settlement
.)

55 Emmanuel Gaillard & Ilija Mitrev Penushliski, "State Compliance with Investment Awards", ICSID Review, Vol. 35, No. 3 (2020), pp. 540-594.

56 Marceau, Gabrielle Z. & Hamaoui, Jeniffer A., "Implementation of recommendations and rulings in the WTO system", in Boisson de Chazournes, Laurence; Kohen, Marcelo G.; Viñuales, Jorge E. (eds.), Diplomatic and Judicial Means of Dispute Settlement. (Leiden, M. Nijhoff, 2013), pp. 187-211.

57 Wenhua Shan, "From North-South Divide to Private-Public Debate: Revival of the Calvo Doctrine and the Changing Landscape in International Investment Law", 27 Nw. J. Int'l L. & Bus. 631, (2006-2007).

58 Susan D. Frank, "The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent Decisions", 73 Fordham L. Rev. 1521 (2005), p. 1546.

59 See SD Myers v. Canada, Partial Award, 13 November 2000, Metaclad Corporation v. Mexico, Award, ICSID Case No. ARB (AF)/97/1, 30 August 2000 and Pope & Talbot Inc. v. Canada, Awards on the Merits of Phase 2, 10 April 2001.

60 See Ronald S. Lauder v. The Czech Republic under the Czech Republic-USA BIT, 1992 and CME Czech Republic B.V. (The Netherlands) v. The Czech Republic under the Netherlands – Czech Republic BIT, 1991.

61 See SGS v. Pakistan, ICSID Case No. ARB/01/13, Decision on Jurisdiction, 6 August 2003 and SGS v. Philippines, ICSID Case No. ARB/02/6, Decision on Jurisdiction, 29 January 2004 and BIVAC v Paraguay, ICSID Case No. ARB/07/9, Decision on Jurisdiction, 29 May 2009.

62 Thomas Schultz, "Against Consistency in Investment Arbitration" in Zachary Douglas, Joost Pauwelyn & Jorge Vinuales, The Foundations of International Investment Law: Bringing Theory into Practice, (Oxford University Press, 2014), pp. 297-316.

63 Gabrielle Kaufmann-Kohler, "Arbitral Precedent: Dream, Necessity or Excuse", Arbitration International, Vol. 23(3) 357 (2007), p. 374.

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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