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Jul 12, 2007

Unresolved Issues in Investment Arbitration


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Partner Yas Banifatemi (Paris-International Arbitration) has published an article “Unresolved Issues in Investment Arbitration,” in Modern Law For Global Commerce – Proceedings of the Congress of the United Nations Commission on International Trade Law Held on the Occasion of the Fortieth Session of the Commission, Vienna, 9-12 July 2007, at 416 (United Nations publication No. V.09-8930, 2011). The following is an excerpt.

“The rapid proliferation of investor-State arbitrations during the last decade has inevitably given rise to the development of diverging views on a number of issues in the arbitral case law and in legal writings. The most hotly debated and yet unresolved issues in investment arbitration today concern in particular the level of protection afforded to investors and related questions of arbitral jurisdiction. For example, the effect of most-favored-nation clauses or the effect of the so-called umbrella clauses on the jurisdiction of arbitral tribunals are questions that have yet to yield a consistent case law. The impact of these international law mechanisms, which are well-known in treaty law, on the protection afforded to investors is therefore a central topic when addressing today’s unresolved issues in investment arbitration. A related question, perhaps more enduring, is the extent to which arbitrators having to decide similar questions, in particular when such questions arise under the same investment treaty or similarly drafted investment treaties, must give weight to decisions previously rendered by other tribunals and whether a precedent system exists in investment arbitration. […] A further question inevitably arises in relation to the forefront role of the International Centre for Settlement of Investment Disputes (“ICSID” or “Centre”) established by the Washington Convention of 1965 in the development of investment arbitration: in light of ICSID’s undeniable success during the last decade, will other arbitration fora grow to compete with ICSID arbitration in investor-State disputes?”

View the full article, Unresolved Issues in Investment Arbitration