Jurisdiction in Investment Treaty Arbitration - IAI Series No. 8
About the IAI Series on International Arbitration:
The IAI (International Arbitration Institute) Series on International Arbitration is a publication focusing on topical questions of international arbitration discussed at conferences organized by the IAI.
About the Book:
This book is based on the Conference organized by the IAI in Paris on Jurisdiction in Treaty Investment Arbitration. At this Conference, distinguished speakers active in the area of investment treaty arbitration shared their experience and perspective on the three grounds of challenge to the jurisdiction of arbitral tribunals in investment treaty arbitration.
The Three Parts of this volume are organized according to the three jurisdictional thresholds that a claimant must cross in order to reach the merits phase of an investment treaty arbitration.
Part I is devoted to Jurisdiction ratione materiae, i.e., the notion of ‘investment’. What constitutes an investment? Is there an economic definition of an investment? Is there a legal definition of an investment? What requirements are found in investment treaties? The various aspects of this crucial concept are covered, respectively, by an economist (Boaz Moselle), by international arbitration specialists, be they academics, arbitrators or practitioners (Pierre-Marie Dupuy, Judge Stephen M. Schwebel and Stanimir Alexandrov, Michael Polkinghorne, Sven-Michael Volkmer, and Margaret Clare Ryan), and by State representatives experienced in the negotiation and drafting of investment treaties (Christophe Douaire de Bondy and Megan Clifford for Canada, Roberto Echandi Gurdián for Costa Rica and Jae-Hoon Kim for the Republic of Korea).
Part II focuses on Jurisdiction ratione personae, namely the definition of the protected investor. Doak Bishop reports on whether there is a standard definition of an ‘investor’ in investment treaties; Yas Banifatemi discusses the issue of control under denial of benefits clauses, and Professor Geneviève Bastid-Burdeau analyses whether there are specific standards of jurisdiction when defining the defendant State.
Part III and last part of the volume is dedicated to Jurisdiction ratione temporis: what is covered in time by the relevant treaty? Veijo Heiskanen examines whether there is a distinction between jurisdiction ratione temporis and substantive protection ratione temporis. Zachary Douglas then focuses on the determination of the critical date in investment treaty arbitration.
The volume also includes the proceedings of the animated debates that followed each session of the Conference.
This conference was the first to gather together economists, academics, arbitrators, practitioners and State negotiators in relation to investment treaty arbitration. This volume is required reading for all those involved in the study and practice of investment treaty arbitration.
About the IAI:
The International Arbitration Institute (IAI) is an organization created under the auspices of the Comité Français de l'Arbitrage (CFA) with the purpose of fostering exchanges in the field of international arbitration. It currently has over 600 members on a worldwide basis. Its activities include the organization of international conferences, as well as the publication of a Directory of Members, which is the most highly regarded freely accessible source of information on international arbitration specialists.
PDF of Title Page, TOC, and Introduction
TABLE OF CONTENTS
Introduction............................................. Emmanuel Gaillard
Part I - Jurisdiction Ratione Materiae: The Notion of Investment
Economics and the Meaning of ‘Investment’........... Boaz Moselle
Is There a Legal Definition of ‘Investment’?..........Stanimir Alexandrov
About the Definition of an International Investment – The Requirement of a Contribution to the Economic
Development of the Host State..........Pierre-Marie Dupuy
Does the Consent of the Contracting Parties Govern the Requirement of an ‘Investment’ as Specified in Article 25 of the
ICSID Convention?..............Stephen M. Schwebel
The Legality Requirement in Investment Arbitration......... Michael Polkinghorne and Sven-Michael Volkmer
Is There a “Nationality” of Investment? Origin of Funds and Territorial Link to
the Host State.....................Margaret Clare Ryan
Determining State Intention when Negotiating and Entering into Investment Treaties – A Canadian
Perspective........ Megan Clifford and Christophe Douaire de Bondy
Determining State Intention when Negotiating and Entering into Investment Treaties – A Developing Country Perspective......... Roberto Echandi-Gurdián
Determining State Intention when Negotiating and Entering into Investment Treaties –
A South Korean Perspective............. Jae-Hoon Kim
Jurisdiction Ratione Materiae Discussion
Part II - Jurisdiction Ratione Personae
Jurisdiction Ratione Personae – Is There a Standard Definition of an ‘Investor’ in Investment Treaties?...................Doak Bishop and Margrete Stevens
Taking Into Account Control Under Denial of Benefits Clauses ......................Yas Banifatemi
Defining the Respondent State in Investment Treaty Arbitration: Are There Specific Standards of Jurisdiction?...............Geneviève Bastid-Burdeau
Jurisdiction Ratione Personae Discussion
Part III - Jurisdiction Ratione Temporis
Entretemps: Is There a Distinction Between Jurisdiction Ratione Temporis and Substantive Protection Ratione Temporis? .................Veijo Heiskanen
When Does an Investment Treaty Claim Arise? An Excursus on the Anatomy of the Cause of Action.................Zachary Douglas
Jurisdiction Ratione Temporis Discussion
Annex 1 - ICSID Case No. ARB/00/4, Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, Decision on Jurisdiction, 16 July 2001
Annex 2 - ICSID Case No. ARB/06/5, Phoenix Action, Ltd. v. The Czech Republic, Award, 15 April 2009
Annex 3 - ICSID Case No. ARB/05/10, Malaysian Historical Salvors Sdn Bhd v. The Government of Malaysia, Decision on the Application for Annulment, 16 April 2009
Annex 4 - ICSID Case No. ARB/07/20, Saba Fakes v. Republic of Turkey, Award, 14 July 2010
Annex 5 - Cross-references in Investment Arbitration Case Law – The Notion of Investment under Article 25(1) of the ICSID Convention
Annex 6 - List of Participants to the IAI Conference Held in Paris on 14 October 2010
Annex 7 - Table of Authorities
Annex 8 - Table of Abbreviations
EDITORS
Emmanuel Gaillard is acknowledged as one of the world leading experts on international arbitration. He has acted as arbitrator, counsel and expert in hundreds of international arbitrations. A Professor of Law in France, and a Visiting Professor of Law at Yale Law School, he heads Shearman & Sterling’s International Arbitration practice. He has written extensively on all aspects of international arbitration law, in English and in French.
Yas Banifatemi is a Partner in Shearman & Sterling’s International Arbitration Group and leads the firm’s Public International Law Practice. A PhD in Public International Law, she teaches International Investment Law at Université Panthéon-Sorbonne (Paris I) and is a Visiting Lecturer at Yale Law School. She has authored numerous articles on issues of investment arbitration and international law.
CONTRIBUTORS
Stanimir Alexandrov
Yas Banifatemi
Geneviève Bastid-Burdeau
Doak Bishop
Megan Clifford
Christophe Douaire de Bondy
Zachary Douglas
Pierre-Marie Dupuy
Roberto Echandi-Gurdián
Emmanuel Gaillard
Veijo Heiskanen
Jae-Hoon Kim
Boaz Moselle
Michael Polkinghorne
Margaret Clare Ryan
Stephen M. Schwebel
Margrete Stevens
Sven-Michael Volkmer
EDITORS
Emmanuel Gaillard is acknowledged as one of the world leading experts on international arbitration. He has acted as arbitrator, counsel and expert in hundreds of international arbitrations. A Professor of Law in France, and a Visiting Professor of Law at Yale Law School, he heads Shearman & Sterling’s International Arbitration practice. He has written extensively on all aspects of international arbitration law, in English and in French.
Yas Banifatemi is a Partner in Shearman & Sterling’s International Arbitration Group and leads the firm’s Public International Law Practice. A PhD in Public International Law, she teaches International Investment Law at Université Panthéon-Sorbonne (Paris I) and is a Visiting Lecturer at Yale Law School. She has authored numerous articles on issues of investment arbitration and international law.
CONTRIBUTORS
Stanimir Alexandrov
Yas Banifatemi
Geneviève Bastid-Burdeau
Doak Bishop
Megan Clifford
Christophe Douaire de Bondy
Zachary Douglas
Pierre-Marie Dupuy
Roberto Echandi-Gurdián
Emmanuel Gaillard
Veijo Heiskanen
Jae-Hoon Kim
Boaz Moselle
Michael Polkinghorne
Margaret Clare Ryan
Stephen M. Schwebel
Margrete Stevens
Sven-Michael Volkmer
PDF of Title Page, TOC, and Introduction
TABLE OF CONTENTS
Introduction............................................. Emmanuel Gaillard
Part I - Jurisdiction Ratione Materiae: The Notion of Investment
Economics and the Meaning of ‘Investment’........... Boaz Moselle
Is There a Legal Definition of ‘Investment’?..........Stanimir Alexandrov
About the Definition of an International Investment – The Requirement of a Contribution to the Economic
Development of the Host State..........Pierre-Marie Dupuy
Does the Consent of the Contracting Parties Govern the Requirement of an ‘Investment’ as Specified in Article 25 of the
ICSID Convention?..............Stephen M. Schwebel
The Legality Requirement in Investment Arbitration......... Michael Polkinghorne and Sven-Michael Volkmer
Is There a “Nationality” of Investment? Origin of Funds and Territorial Link to
the Host State.....................Margaret Clare Ryan
Determining State Intention when Negotiating and Entering into Investment Treaties – A Canadian
Perspective........ Megan Clifford and Christophe Douaire de Bondy
Determining State Intention when Negotiating and Entering into Investment Treaties – A Developing Country Perspective......... Roberto Echandi-Gurdián
Determining State Intention when Negotiating and Entering into Investment Treaties –
A South Korean Perspective............. Jae-Hoon Kim
Jurisdiction Ratione Materiae Discussion
Part II - Jurisdiction Ratione Personae
Jurisdiction Ratione Personae – Is There a Standard Definition of an ‘Investor’ in Investment Treaties?...................Doak Bishop and Margrete Stevens
Taking Into Account Control Under Denial of Benefits Clauses ......................Yas Banifatemi
Defining the Respondent State in Investment Treaty Arbitration: Are There Specific Standards of Jurisdiction?...............Geneviève Bastid-Burdeau
Jurisdiction Ratione Personae Discussion
Part III - Jurisdiction Ratione Temporis
Entretemps: Is There a Distinction Between Jurisdiction Ratione Temporis and Substantive Protection Ratione Temporis? .................Veijo Heiskanen
When Does an Investment Treaty Claim Arise? An Excursus on the Anatomy of the Cause of Action.................Zachary Douglas
Jurisdiction Ratione Temporis Discussion
Annex 1 - ICSID Case No. ARB/00/4, Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, Decision on Jurisdiction, 16 July 2001
Annex 2 - ICSID Case No. ARB/06/5, Phoenix Action, Ltd. v. The Czech Republic, Award, 15 April 2009
Annex 3 - ICSID Case No. ARB/05/10, Malaysian Historical Salvors Sdn Bhd v. The Government of Malaysia, Decision on the Application for Annulment, 16 April 2009
Annex 4 - ICSID Case No. ARB/07/20, Saba Fakes v. Republic of Turkey, Award, 14 July 2010
Annex 5 - Cross-references in Investment Arbitration Case Law – The Notion of Investment under Article 25(1) of the ICSID Convention
Annex 6 - List of Participants to the IAI Conference Held in Paris on 14 October 2010
Annex 7 - Table of Authorities
Annex 8 - Table of Abbreviations