The Extent of Review of the Applicable Law in Investment Treaty Arbitration - Chapter 9 - Annulment of ICSID Awards

Emmanuel Gaillard, Chairman of the IAI, is acknowledged as one of the world's leading experts on international arbitration. He has written extensively on all aspects of international arbitration law, in French and in English. He is a co-author of Fouchard Gaillard Goldman On International Commercial Arbitration, the leading and most exhaustive publication in this field. Emmanuel Gaillard teaches International Arbitration and Private International Law at the University of Paris XII. He has acted as arbitrator, counsel and expert in over 250 international arbitration proceedings and Chair of Shearman & Sterling LLP International Arbitration practice.

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Originally from: Annulment of ICSID Awards

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The considerable increase in the number of arbitral proceedings initiated on the basis of investment treaties is one of the most striking features of ICSID arbitration today. In 1993, a single new case was registered by the Centre on the basis of a bilateral investment treaty (“BIT”). In 1997, out of ten new cases, five were based on BITs, and five on an arbitration agreement contained in a contract. In 2002, sixteen out of nineteen new cases were based on a BIT. In 2003, interestingly, all of the thirty new cases were based on BITs.

This evolution has affected ICSID arbitration in a spectacular way, both in terms of the jurisdiction of the Centre and the law applicable to the investment dispute. As regards jurisdiction, it will often be the case that an investor has entered into a contract with the host State whereby the parties have provided that the local courts have exclusive jurisdiction over disputes arising from the performance of the contract. In such cases, the jurisdiction of the local courts based on the contract may coexist with the jurisdiction of an ICSID tribunal constituted pursuant to the applicable BIT, although the nature of this coexistence has been the subject of differing interpretations in recent ICSID cases such as Salini v. Morocco, SGS v. Pakistan, and SGS v. Philippines.