{"title":"The Dilemma of Consent to International Arbitration in Investment Agreements without a Forum","authors":"Fernando Tupa","doi":"10.1163/24055778-12340012","DOIUrl":"https://doi.org/10.1163/24055778-12340012","url":null,"abstract":"\u0000This monograph addresses the sometimes overlooked yet fundamental principle that consent to international arbitration is forum-specific, and explores its significance and practical consequences in investment arbitration. This monograph contends that if there is no arbitral forum mentioned in the relevant dispute settlement provision of an investment agreement, the forum specified therein becomes unavailable for some reason, or a subsequent agreement on a forum is required between the parties to the dispute, there is only consent “in principle” to international arbitration in the investment agreement. Such expression of “consent” is unenforceable and ineffective, which means that a foreign investor would not be entitled to unilaterally initiate an investment claim against the host State under said agreement absent a subsequent agreement between the foreign investor and the host State on an arbitral forum. This monograph also shows that there is an explicit requirement of a forum-specific consent in the arbitral rules of the often-used arbitral institutions. In addition, the most-favored nation clause in investment agreements could not be applied to overcome the lack of forum in dispute settlement provisions. Finally, this monograph proposes possible avenues to tackle the absence of an agreed-upon forum in an investor-State dispute settlement provision, draws some conclusions and warns against the dangerous consequences of ignoring this basic principle.","PeriodicalId":448859,"journal":{"name":"Brill Research Perspectives in International Investment Law and Arbitration","volume":"16 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114015691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Resurgence of the Unified Arab Investment Agreement and the Organisation for Islamic Cooperation Investment Agreement","authors":"M. Wahab, K. Duggal","doi":"10.1163/24055778-12340011","DOIUrl":"https://doi.org/10.1163/24055778-12340011","url":null,"abstract":"\u0000 Multilateral investment treaties (MIT s) are international legal instruments whose purpose is to, inter alia, facilitate social and economic cooperation on regional and/or global scales. While there is abundant literature and decisions on MIT s generally, there has been scant analysis of such instruments executed in the Arab and Muslim-majority worlds.\u0000 This book discusses two such instruments: the Unified Agreement for the Investment of Arab Capital in the Arab States and the Organisation of Islamic Cooperation Agreement for Promotion, Protection and Guarantee of Investments Among Member States. These investment agreements are among the oldest MIT s in the modern world. The UAA was approved at the 11th Arab Summit Conference held in Amman, Jordan, in November 1980. The OIC Agreement was opened for signature on June 1–5, 1981 and entered into force on February 25, 1988. It is only recently, however, that these two long-dormant treaties have acquired special significance. This book provides a comprehensive, critical review of these two treaties that remain to be fully tested and utilized.","PeriodicalId":448859,"journal":{"name":"Brill Research Perspectives in International Investment Law and Arbitration","volume":"46 10","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132149875","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Threading the Sovereign’s Needle","authors":"A. Leventhal","doi":"10.1163/24055778-12340010","DOIUrl":"https://doi.org/10.1163/24055778-12340010","url":null,"abstract":"\u0000An investor-State tribunal enjoys significant authority once a dispute is referred to it. Among a tribunal’s unquestioned powers is the power to order interim relief—including with respect to the most sovereign of a State’s conduct: its enforcement of its criminal law. In exercising these powers, an investor-State tribunal goes beyond the role traditionally assigned to it—i.e. to award damages for prejudice caused by a treaty breach—and dictates sovereign conduct. While the applicable treaty, arbitral rules, or law of the seat may not offer specific instructions, arbitral tribunals deciding on such interim relief requests can rely on a significant body of case law. That case law reflects a coherent approach to a thorny question, even though outcomes may vary. This article will deconstruct that coherent approach—from the foundations of the tribunal’s authority to order interim relief in respect to pendant criminal proceedings, to the rights that such relief may protect, to the requirements for ordering such relief, as well the effect of such relief and its duration in addition to any recourse for non-compliance.","PeriodicalId":448859,"journal":{"name":"Brill Research Perspectives in International Investment Law and Arbitration","volume":"155 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128267605","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Principles of Evidence in Public International Law as Applied by Investor-State Tribunals: Burden and Standards of Proof","authors":"K. Duggal, W. Cai","doi":"10.1163/24055778-12340005","DOIUrl":"https://doi.org/10.1163/24055778-12340005","url":null,"abstract":"Principles of Evidence in Public International Law as Applied by Investor-State Tribunals explores the fundamental principles of evidence and how these principles relating to burden of proof and standards of proof are derived.By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally. Each principle is analyzed through historical and modern lenses to provide clarity and cohesion in understanding how fundamental principles of evidence will affect evidentiary dispositions of parties in investment arbitration and public international law cases.","PeriodicalId":448859,"journal":{"name":"Brill Research Perspectives in International Investment Law and Arbitration","volume":"136 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122747858","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}