Evaluating Social Benefits and Costs of Investment Treaties: Depoliticization of Investment Disputes

Evaluating Social Benefits and Costs of Investment Treaties: Depoliticization of Investment Disputes Abstract The growth in the number of investment treaties and investment treaty arbitrations has led to a lively debate about the benefits, justification, and problems of this special form of protection for foreign investors. This paper makes the positive case for understanding international investment law as an instrument for the depoliticization of conflicts that at times had led to fierce confrontations between home and host States of investors. Depoliticization means the transfer of such conflicts from the political arena of diplomatic protection to a judicial forum with objective, previously agreed standards and a pre-formulated dispute settlement process. First, this article addresses the goals of investment arbitration in this context. Second, it discusses the means provided for in the ICSID Convention and in investment protection treaties in their various forms to achieve these goals. Furthermore, it analyses how different investment protection instruments achieve different degrees of depoliticization. Third, it discusses whether investment treaties have been successful in providing judicial means to prevent investor-State conflicts developing into inter-State conflicts, which are dominated by power politics. Before entering into a discussion of whether depoliticization is a benefit emanating from investment treaties, it is useful to explain the concept of depoliticization as used here. Merriam-Webster’s Dictionary defines depoliticize as: ‘to remove the political character of; take out of the realm of politics’. First known use: 1937. Similarly, the Oxford English Dictionary speaks of: ‘Remove from political activity or influence.’ Hersch Lauterpacht aptly stated ‘… as a rule, every international dispute is of a political character, if by that is meant that it is of importance to the State in question’.2 But as he said some pages later ‘… it is equally easy to show that all international disputes are, irrespective of their gravity, disputes of a legal character in the sense that, so long as the rule of law is recognized, they are capable of an answer by the application of legal rules’.3 The fact that a dispute is of importance to the State in question does not mean that the best way to solve the dispute is by political means. This paper does not argue that the disputes that are before investment tribunals do not often concern questions of political importance to the host State or even to both the home and the host State.4 Rather, the focus is on whether it is beneficial to ‘depoliticize’ investment disputes in the sense of transferring them from the political arena of diplomatic protection to a judicial forum with objective, previously agreed standards and a pre-formulated dispute settlement process. This will be looked at from three aspects: goals; means; and achievements. I. GOALS There was a time when conflicts about the treatment of foreign investors were the cause of fierce confrontation between home and host States of investors. In the late 19th and early 20th century this led to numerous military interventions, often by European States in Latin America. Diplomatic protection was often accompanied by ‘gunboat diplomacy’.5 Borchard has vividly described the situation in which the home State, the host State and the investor might end up in a typical diplomatic protection scenario before the adoption of the UN Charter:6 the investor was in the hands of its home State and its fortune depended on whether he had the nationality of a strong or a weak State; the host State was confronted with coercion exercised by another State after a unilateral determination by that State’s government that its citizen’s rights had been violated. The weaker the host State, the more exposed it is to arbitrary determinations of the claiming State. While strong States can violate aliens’ rights with impunity, weak states have to pay even unjust claims. The claiming State makes ex parte determinations on the validity of the claim and is exposed to domestic political influences. This can lead to the espousal of claims with which the State does not fully identify or, on the other hand, to valid claims not being followed up. Politics rather than the rule of law govern the case: A cursory examination of the existing practice will demonstrate the inefficiency, if not, indeed, the unfairness of the system. … Under this system all three parties to the issue, the individual, the defendant nation, and the claimant nation, are in a precarious and unhappy condition. Politics rather than law governs the outcome of the case. … the complaining state is likely to constitute itself plaintiff, judge, and sheriff at one and the same time. … all three parties to the issue … are exposed to the disturbing interference of politics as a determining factor. This does not make for the growth of law or for peace. … Under the existing system the issue is determined by the ex parte views of the strong state, whether plaintiff or defendant.7 Even after the use of force as a means to enforce public international law had been prohibited, disputes about foreign investments had at times the potential to turn into military conflicts. In 1956 the dispute arising from the nationalization of the Suez Canal led to a military invasion in Egypt by the United Kingdom (UK) and France.8 Also the Cuba crisis had its root cause in nationalizations of US investors by Cuba.9 The USA–Iran conflict started out as a conflict between the Anglo-Iran Oil Company and Iran, before it turned into a conflict between the UK and Iran after the nationalization of Anglo-Iranian Oil Company and later between the USA and Iran because of widespread nationalizations and expropriations of US companies after the Iranian Revolution.10 With this legacy in mind, the idea of depoliticization played a prominent role in the drafting of the ICSID Convention.11 The goal was to replace diplomatic protection, which was rightly perceived as being dominated by political considerations, by a direct judicial remedy for investors. Aron Broches, the General Counsel of the World Bank, explicitly pointed to this motive in his Hague Lecture on the ICSID Convention: [E]ven in those countries in which foreign private investment is welcome in principle, the terms and conditions on which it operates have given rise to controversy between the host countries and the private investors and these controversies have on occasion, and there are a number of obvious recent examples, involved the national governments of the investors as well. It is beyond doubt that fear of political risk operates as a deterrent to the flow of private foreign capital to developing countries. The World Bank therefore considered it appropriate to explore whether it could make a contribution to an improvement in the investment climate, by reducing the likelihood of unresolved conflicts between host countries and investors, and in particular by doing so in a manner which would eliminate the risk of a confrontation of the host country and the national State of the investor.12 This would have advantages for all three protagonists of investment protection: host States, home States and investors.13 The idea was that depoliticization protects host States by saving them from diplomatic protection including gunboat diplomacy. Ibrahim Shihata, the long-serving Secretary-General of ICSID, pointed to this advantage when he described depoliticization as one of the main features of the ICSID Convention: The International Centre for the Settlement of Investment Disputes (…) was created by the Convention on the Settlement of Investment Disputes (…) to provide a forum for conflict resolution in a framework which carefully balances the interests and requirements of all the parties involved, and attempts in particular to ‘depoliticize’ the settlement of investment disputes.14 Some of the conflicts mentioned above had occurred shortly before the ICSID Convention had been negotiated and must have inspired the drafters of the ICSID Convention. Certainly, the adoption of the UN Charter with its prohibition of the use of force and the threat to use force15 except in self-defence16 brought about an important change in the legal framework concerning the means available to respond to violations of investors’ rights. But even without the threat of violence, being sued by an investor is a far lesser evil than being pressurized by a powerful country on behalf of its national. But depoliticization also relieves home States of an unpleasant burden. As Kenneth Vandevelde, a US investment treaty negotiator, explained, the USA sought the inclusion of investor-state arbitration in investment protection treaties to ‘provide investors with a remedy that would not depend upon the involvement of the investor’s government in the dispute’.17 He describes this dependence as unsatisfactory for both the investor and the government since it complicates or even impedes US foreign policy interests.18 In this context Vandevelde repeatedly and explicitly mentions depoliticization as a goal of BITs and explains that this would relieve foreign policy from pressure by national investors.19 In the same vein Daniel Price, one of the US negotiators of NAFTA and US BITs explained in an article that providing for direct access of investors to the litigation forum would relieve the home State and its foreign policy from the burden to step in for the investor: ‘By allowing the investor to litigate its claim directly, the investor’s sovereign could distance itself from the dispute.’20 This picture is confirmed by Noel Maurer who has shown in his book, The Empire Trap, using the USA as an example, how democratic governments were unable to escape the domestic pressure to exercise diplomatic protection in a number of investment conflicts even if this was against their overall foreign policy interest.21 The US government has acknowledged depoliticization as the principal rationale for the establishment of investor-State dispute settlement. In a recent Permanent Court of Arbitration (PCA) investment arbitration, the Ecuador v United States case, the US government explicitly mentioned the goal of depoliticization. It referred to it as: ‘… a principal rationale for investor-State dispute mechanisms, which is to depoliticize investment disputes and permit neutral and binding arbitration between the State and the investor’.22 For an investor, diplomatic protection means it needs to petition the home State to pursue the claim on its behalf.23 As a precondition for the exercise of diplomatic protection by the home State, the investor has to have the nationality of this State24 and has to exhaust local remedies in the host State of the investment.25 If the home State is prepared to exercise diplomatic protection, it is generally assumed that it asserts its own right to protect its subject vis-à-vis the injuring State after the subject was unable to obtain redress in the host State.26 Therefore, in the context of diplomatic protection a primary conflict between an individual and the host State concerning an obligation towards the injured person is transformed into an inter-State conflict. In the inter-State conflict, only the home State is a party and in full control of the claim.27 Whether the home State is willing to pursue the investor’s claim depends on many factors. Big players are more likely than small companies to obtain diplomatic protection. The relative political strength of the home and host State will enter into the equation as well as various foreign policy considerations of the home State. Moreover, diplomatic protection entails the loss of control over the process of pursuing the claim since the investor does not have control over any of these factors and is totally in the hands of its home State concerning whether and how a claim will be pursued. Broches hinted at these disadvantages of diplomatic protection, when he explained the essential features of the ICSID Convention from the investors’ perspective: If the investor feels aggrieved by actions of the host government and has found no redress through the exercise of local remedies, he may seek the protection of his national government. Even if the investor’s government is willing to give that protection and if the investor has not been required, as a condition of entry, to waive diplomatic protection, there is no guarantee that the host government will be willing to submit the dispute to the jurisdiction of an international arbitral or other tribunal. Moreover, the investor’s government may in fact not be willing to take up a meritorious claim of the investor because it fears that to do so would be regarded as an unfriendly act by the host government and interfere with bilateral relations on other matters. This political element is likely to weigh particularly heavily if the merits of the investor’s case are not wholly clear in his government’s view, thus withholding from the investor any opportunity to have his case judged by an impartial tribunal.28 Therefore, by providing the investor with direct access to an international dispute settlement forum the investor is no longer subjected to the political considerations of its home State29 and the dispute between a private party and a State is not transformed into an inter-State dispute. The goal of depoliticizing investment disputes incorporated in Article 27 of the ICSID Convention,30 was of great importance for the Tribunal in Banro v Democratic Republic of Congo when it declined jurisdiction.31 The investor was a Canadian corporation with a US subsidiary. The claim arose from an investment contract between the company and Congo referring to the ICSID Convention. But unlike the USA, Canada was not a party to the ICSID Convention at the time of the claim. Therefore, Banro Resources assigned the claim to its US subsidiary, Banro American, which filed an ICSID claim. The Tribunal underlined that depoliticization had been one of the main objectives for the adoption of the ICSID Convention: One of the main objectives of the mechanism instituted by the Washington Convention was to put an end to international tension and crises, leading sometimes to the use of force, generated in the past by the diplomatic protection accorded to an investor by the State of which it was a national. Conversely, the investor never enjoyed the assurance of being able to benefit from the protection of its Government, since, as a rule, diplomatic protection is accorded at the discretion of the Government; the extent to which an investor benefited or did not benefit from the protection of its Government depended on the political situation and political relations between the two Governments. The Washington Convention introduced mechanisms to remedy this dual drawback that brings the private investor face to face with the host State and which avoid political confrontation between the host State and the State of which the investor is a national.32 The Tribunal found that Canada had diplomatically supported the Banro Resources’ case. This was not illegal since Canada had not been a party to the ICSID Convention at the relevant time.33 However, the Tribunal inferred from the object and purpose of the ICSID Convention, relying also on the drafting history, that it would be against one of the main objectives of the Convention were it to allow the company to ask for diplomatic protection of Canada and thereafter to rely on its US nationality to submit a dispute under the investor-State dispute settlement clause: The Banro Group, however, was not free to submit to the Democratic Republic of the Congo both diplomatic intervention on the part of the Canadian Government, availing itself of its parent company, Banro Resource, and an arbitration proceeding before an ICSID tribunal by availing itself of the American nationality of one of its subsidiaries, Banro America.34 Since the Tribunal found that this defeated the object of the ICSID Convention it declined jurisdiction.35 II. MEANS There are several ways to transfer investment disputes from the political arena of diplomatic protection to a judicial forum with objective, previously agreed standards and a pre-formulated dispute settlement process. They achieve different degrees of depoliticization. Treaties of Friendship, Commerce and Navigation (FCN) and especially older FTAs or BITs often contain dispute settlement clauses that only provide for the jurisdiction of the International Court of Justice (ICJ) and/or an inter-State arbitral tribunal. A prominent example for an FCN treaty providing for ICJ jurisdiction is the Treaty between the USA and Italy which formed the basis for the famous ELSI36 case.37 The first BIT, the treaty signed between Germany and Pakistan in 1959 in its Article 11 provided for the jurisdiction of the ICJ if both Parties agreed to this forum. In the absence of such an agreement it provided for the establishment of an inter-State arbitral tribunal.38 In these treaties, the dispute is clearly before a judicial forum but not completely depoliticized, since the basis for the legal proceedings is still diplomatic protection. It was only in 1969 that the first BIT, which was signed after the ICSID Convention, the treaty between Italy and Chad,39 had entered into force, provided for investor-State arbitration. This treaty provided only for investor-State arbitration and reserved disputes between the State parties for regulation by diplomatic means.40 Nearly all modern BITs or investment chapters in FTAs provide for two forms of arbitration: investor-State and State-State.41 Under the investor-State arbitration clause, investors can institute arbitration proceedings for an alleged violation of investment protection standards. The State-State arbitration clauses provide that each of the State parties can bring a case against the other State party in case of a dispute concerning the interpretation and/or application of the Treaty.42 So far inter-State arbitration clauses have been invoked only in a very limited number of cases:43Peru v Chile,44Italy v Cuba45 and Ecuador v United States.46 The Peru v Chile and the Ecuador v United States cases were prompted by investor-State arbitrations. Peru attempted to use the inter-State arbitration process in response to the investment claim brought by Lucchetti, a Chilean investor, while the investor-State arbitration was still pending. It unsuccessfully requested the suspension of the investor-State proceedings as a consequence of the introduction of an inter-State arbitration.47 The inter-State case was not subsequently pursued.48 The Ecuador v United States case was launched by Ecuador in response to the award on the merits in the Chevron v Ecuador case49 before that award had been enforced.50 The Tribunal declined jurisdiction by majority since it denied the existence of a dispute with some implications or consequences for the relations between the Parties on an inter-State level.51 Both cases show, that depoliticization is not fully achieved under the inter-State arbitration model. The claimant States tried to influence the outcomes of pending and decided cases by having another tribunal decide the case on the assumption that this tribunal’s decision would have an effect on the investor-State cases.52 However, the attempts to repoliticize the cases failed since both inter-State arbitrations did not reach the intended goals to transfer the investor-State disputes back into inter-State arbitrations. In the Italy v Cuba case53 Italy brought diplomatic protection claims as well as claims in its own name arguing that it had ‘double standing’.54 The case is unusual since the Italy-Cuba BIT provides for investor-State and inter-State arbitration but in a rather peculiar way. Article 9 of the BIT, which provides for investor-State arbitrations, refers such arbitrations to the rules of the inter-State arbitration.55 This means, for example, that the two States will establish the arbitral tribunal and appoint the arbitrators.56 Therefore, the BIT relied at least partly on the system of diplomatic protection requiring the intervention of the home State of the investor for the establishment of an arbitral tribunal. Cuba argued that because of the possibility for investor-State arbitration in the BIT, Italy was prevented from bringing a diplomatic protection claim.57 The Tribunal rejected the argument since the investors had neither brought the case before an arbitral tribunal nor given their advance consent.58 The Tribunal rejected all the diplomatic protection claims either on jurisdictional grounds or on the merits. As a consequence, it also rejected the claims Italy pursued in its own name.59 The Italy v Cuba case was a classic example for the traditional regime of diplomatic protection, which requires the political intervention of the home State of the investor. In fact, Cuba accused Italy of politicizing the case by exercising diplomatic protection.60 Therefore, in cases relying on an inter-State arbitration clause the depoliticization is partly achieved with the transfer of the dispute to a neutral forum. But a dispute that originally existed between an investor and a State is still transformed into an inter-State dispute with all the potential negative side effects. Only in the investor-State arbitration setting can the depoliticization of the dispute be fully realized. This goal can be achieved in different ways. As has already been mention it was an explicit goal of the States negotiating the ICSID Convention to depoliticize investment disputes. For this purpose they adopted Articles 27 of the ICSID Convention:61 Article 27 No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute. Diplomatic protection, for the purposes of paragraph (1), shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute. Article 27 of the ICSID Convention prohibits any recourse to diplomatic protection as soon as there is an agreement between an investor and the host State to submit a case to ICSID arbitration. This effect is activated only when both parties have perfected consent. This requires the investor’s acceptance of the host State’s offer in written form.62 Furthermore, the right to exercise diplomatic protection revives when an award is not honoured. Therefore, diplomatic protection of an investor by its home State is not totally banned. But the possibility to exercise diplomatic protection is suspended from the moment of consent between the investor and the host State until an award is not honoured by a host State.63 Therefore, we are in the presence of a duality of procedural rights (investor/home State) established usually by two different arbitration clauses. The State-track to espouse the claim is suspended once the investor has perfected the host State’s offer of consent to arbitration. Until the investor perfects consent, both the investor and the home State can exercise their right to start an arbitration independently. This is in line with the double nature of investment rights guaranteeing substantive and procedural rights at the same time to the home State and to the investor and providing for their independent invocation.64 Given the home State’s independent possibility to act, the complete depoliticization of an investment dispute will only be achieved if an investor has perfected consent before his home State has espoused his claim. Furthermore, the ban of the exercise of diplomatic protection as soon as consent between the investor and the host State is perfected does not mean that diplomatic involvement is excluded altogether. This is highlighted by paragraph 2 of Article 27 of the ICSID Convention. It provides that informal diplomatic exchanges for the purpose of facilitating a settlement of a dispute are permitted.65 While Article 27 of the ICSID Convention does not ban diplomatic exchanges to facilitate the settlement of an investment dispute, its clear intention is to prevent the outbreak of an inter-State conflict. Article 64 of the ICSID Convention provides a further possibility for inter-State claims in the context of investment arbitration. It establishes the jurisdiction of the ICJ for disagreements on the interpretation or the application of the ICSID Convention. During the negotiation process this provision raised concerns with regard to the depoliticization achieved by Article 27 of the ICSID Convention. In this context, the Report of the Executive Directors explicitly states that Article 64 must not be used to undermine this goal enshrined in Article 27 of the ICSID Convention: 45. … Nor does it empower a State to institute proceedings before the Court in respect of a dispute which one of its nationals and another Contracting State have consented to submit or have submitted to arbitration, since such proceedings would contravene the provisions of Article 27, unless the other Contracting State had failed to abide by and comply with the award rendered in that dispute. Therefore, the depoliticization goal has high priority in the investment dispute settlement system of the ICSID Convention. It will be achieved once the investor perfects consent, but it is not absolute since until this point in time both avenues can be pursued. Furthermore, the ICSID Convention does not exclude the possibility for an investor to bring an investor-State claim after the home State has started to exercise diplomatic protection. A violation of Article 27 by the home State of an investor will not lead to a loss of jurisdiction of the investor-State tribunal. But the inter-State tribunal or the ICJ will have to decline jurisdiction in the diplomatic protection case.66 Furthermore, the host State will be able to rely on Article 64 of the ICSID Convention, bring the case before the ICJ and invoke a violation of Article 27 of the ICSID Convention. Outside the ICSID system, arbitration rules, which were as a rule not specifically drafted for investor-State arbitration, do not deal with the issue of diplomatic protection and therefore, do not contain an explicit prohibition of the espousal of claims by the home State as soon as an investor consented to investor-State arbitration. No consensus exists whether a customary law provision analogous to Article 27 of the ICSID Convention applicable to investment arbitration in general exists. The Italy v Cuba Tribunal deciding a case not based on the ICSID Convention found that Article 27 ICSID Convention was applicable by analogy.67 Amerasinghe argues that it would be reasonable to infer that a claim may not be espoused by the home State if an investor-State arbitration is on the way since otherwise procedures would be duplicated.68 Paparinskis and Potestà both hold the opinion that there is no State practice supporting the existence of a customary law norm analogous to Article 27 of the ICSID Convention and refer to the materials of the ICSID Convention where Article 27 was presented as an innovation rather than a codification of existing customary international law.69 Paparinskis rightly observes that absence of the exercise of diplomatic protection in investor-state disputes will not be enough to prove the existence of such a norm under customary international law. Rather, positive proof that the exercise of diplomatic protection is prohibited despite the absence of an explicit norm to this regard would be necessary. According to an OECD study of 2012 around 21 percent of international investment protection treaties contain a provision that is similar to the one provided for in Article 27 of the ICSID Convention.70 The scope of these provisions varies slightly.71 Their common goal is to block or limit diplomatic protection in case of a pending investor-State dispute.72 Therefore, by means of these clauses an espousal of claims by the home State of an investor is prevented once an investor-State case is pending and the complete depoliticization of the dispute can be achieved. In conclusion, the current set-up of investment arbitration provides for different degrees of depoliticization. All treaties have in common that they shift the disputes from the purely political arena to a judicial system of dispute settlement. In the case of inter-State dispute settlement the cases are partly depoliticized since they will be decided by arbitral tribunals or the ICJ and are therefore judicialized. But an investor-State dispute will still be transformed into an inter-State dispute and some cases will involve classical diplomatic protection (others will concern issue of declaratory relief or pure treaty interpretation). A full depoliticization will only be obligatory in case of the presence of consent to investor–State arbitration under the ICSID Convention or a treaty that contains a provision analogous to Article 27 of the ICSID Convention or even stricter than this provision. A full repoliticization is provided for by the current system once a State does not comply with awards, since then under all of the treaty options, the right of the home State to exercise diplomatic protection revives. III. ACHIEVEMENTS It is difficult to measure achievements. Negative proof is difficult if not impossible to furnish. We cannot prove conflicts or military interventions that never materialized. But it is possible to say that the number of inter-State conflicts in the context of investment disputes has decreased substantially since the introduction of investment arbitration. Numerous US negotiators have pointed out that the government does not want to get involved in investor-State disputes. Home States can point to the alternative forum and ward off demands to exercise diplomatic protection. The fact that only very few inter-State cases have been brought so far compared to the much larger number of investor-State arbitrations also indicates that by and large these disputes have been depoliticized. Some cases are mentioned in the media, where allegedly home-States have exercised diplomatic protection despite a pending investment dispute. One of them was the case Rurelec v Bolivia.73 The case was arbitrated pursuant to the UNCITRAL rules,74 administered by the PCA and based on a BIT that does not contain a provision similar to Article 27 of the ICSID Convention.75 Therefore, the case operated under an only partially depoliticized setting of investor-State arbitration since there was no prohibition of diplomatic protection even during a pending arbitration case. Furthermore, nowhere in the Respondent’s memorial on jurisdiction,76 memorial on the merits77 or in the award is there any complaint about an exercise of diplomatic protection by the home-State. Nor was there any indication that such protection would have been carried out in a way that would lead to a conflict with the host State. The Telegraph of 19 February 2011 mentions two cases in which the British government allegedly exercised diplomatic protection on behalf of Cairn and Vodafone in India in an article called ‘David Cameron intervenes for Cairn and Vodafone in India’.78 Here, the picture is the same. The cases were arbitrated under the UK–India BIT and the Netherlands–India BIT under the UNCITRAL rules,79 administered by the PCA. Neither of the two BITs contains a clause prohibiting the exercise of diplomatic protection by the home State of the investor at any given point in time. In the Cairn v India80 case, a notice of claim was filed on 13 March 2015, long after the article alleging the undue exercise of diplomatic protection had been published.81 So far no decision on jurisdiction or merits has been adopted by the Tribunal. In the Vodafone v India82 case, it took until November 2016 until a tribunal was constituted and apparently no decision on jurisdiction or the merits has been taken that could indicate whether India has raised the issue of diplomatic protection.83 So far there is only one ICSID arbitration where reports have emerged concerning complaints by a host State about the improper exercise of diplomatic protection by a home-State during the waiting period provided for by the applicable investment protection treaty albeit not in the form of an espousal of claim. The IAReporter84 commented on the Repsol v Argentina85 arbitration that had in the meantime been discontinued.86 It was reported that Spain and the EU had urged the membership of the OECD to find that Argentina’s treatment of Repsol was not in compliance with its National Treatment obligations under the OECD Declaration on International Investment and Multinational Enterprises.87 According to the reports, there was some discussion among the Member States whether these actions by Spain were an impermissible form of diplomatic protection. Argentina took that position in view of the pending Repsol case and Article 27 of the ICSID Convention. No information on the details of the discussion or its outcome are available. But the case shows that it is possible to legitimately resist diplomatic protection efforts by a State and that these arguments are taken seriously by the other States. These exceptional cases only underline the principal finding that the depoliticization goal that had been considered a critical feature of the ICSID Convention by its drafters and has been implemented through its Article 27 was achieved. It is doubtful whether the rule enshrined in Article 27 of the ICSID Convention has achieved customary international law status. Therefore, it would be advisable if States were to include in a systematic manner analogous clauses in their investment protection treaties to guarantee the full depolitizication also outside the scope of application of the ICSID Convention.88 But even outside the ICSID Convention, the mere existence of BITs and other IIAs has achieved a measure of depoliticization of investment disputes, since there will always be an option to pursue these disputes before an arbitral tribunal. Footnotes 2 Hersch Lauterpacht, The Function of Law in the International Community (republished OUP 2011) 161. 3 ibid 166. 4 For a contribution looking at depoliticization from the perspective of whether the subjects before tribunals are of political importance see: Catharine Titi, ‘Are Investment Tribunals Adjudicating Political Disputes? Some Reflections on the Repoliticization of Investment Disputes and (New) Forms of Diplomatic Protection’ (2015) 32 J Intl Arb 261–88. 5 See eg Edwin M Borchard, ‘Limitations on Coercive Protection’ (1927) 21 AJIL 303; Miriam Hood, Gunboat Diplomacy, 1895–1905: Great Power Pressure in Venezuela (AS Barnes 1975); Charles Lipson, Standing Guard, Protecting Foreign Capital in the Nineteenth and Twentieth Centuries (University of California Press 1985); Noel Maurer, The Empire Trap: The Rise and Fall of US Intervention to Protect American Property Overseas, 1893–2013 (Princeton University Press 2013); O Thomas Johnson Jr and Jonathan Gimblett, ‘From Gunboats to BITs: The Evolution of Modern International Investment Law’ (2012) YB Intl Invest L & Poly 2010–2011 649, 650–57. 6 Charter of the United Nations and Statute of the International Court of Justice (signed 26 June 1945, entered into force 24 October 1945) (UN Charter). See below (n 16 and n 17). 7 Borchard (n 5) 303ff. 8 See eg Thomas T F Huang, ‘Some International and Legal Aspects of the Suez Canal Question’ (1957) 51 AJIL 277; Maurizio Arcari, ‘Suez Canal’, The Max Planck Encyclopedia of Public International Law (2013) vol IX, 675. 9 See eg Leland L Johnson, ‘US Business Interest in Cuba and the Rise of Castro’ (1965) 17 World Politics 440; Andreas F Lowenfeld, ‘Cuba’, The Max Planck Encyclopedia of Public International Law (2013) vol II, 886. 10 See eg Brendan F Brown, ‘The Juridical Implications of the Anglo-Iranian Oil Company Case’ (1952) Washington Univ LQ 384; Alexander Orakhelashvili, ‘Anglo-Iranian Oil Company Case’, The Max Planck Encyclopedia of Public International Law (2013) vol I, 396; Sunday’s Pahuja and Caitlin Storr, ‘Rethinking Iran and International Law: The Anglo-Iranian Oil Company Case Revisited’ in James Crawford, Abdul Koroma and Said Mahmoudi (eds), The International Legal Order: Current Needs and Possible Responses, Essays in Honour of Djamchid Momtaz (Brill 2017) 53. 11 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (opened for signature 18 March 1965, entered into force 14 October 1966) (ICSID Convention). Aron Broches, the General Counsel of the World Bank, pointed several times to the importance of depoliticization for the elaboration of the ICSID Convention. 12 Aron Broches, ‘The Convention on the Settlement of Investment Disputes between States and Nationals of Other States’ (1972) 136 RdC 331, 43–44. 13 Borchard (n 5) 305 has expressed the idea that arbitration would be advantageous for all three parties since it would be law and not politics that would determine the outcome: ‘Were this done, all three parties to the issue would be assured of the protection of law for the determination of its rights and for protection against unjust intervention, and the plaintiff state would be relieved from the pressure of politics inducing intervention, from the danger of war and from the charge of imperialisms and naked might.’ 14 Ibrahim Shihata, ‘Towards a Greater Depoliticization of Investment Disputes: The Roles of ICSID and MIGA’ (1986) 1(1) ICSID Rev—FILJ 1, 4. 15 UN Charter (n 6) art 2, para 4: ‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state … .’ 16 UN Charter (n 6) art 51: ‘Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken the measures necessary to maintain international peace and security.’ 17 Kenneth J Vandevelde, US International Investment Agreements (OUP 2009) 576. 18 ibid 577. 19 ibid 577 ‘… the 1983 model thus depoliticizes investment disputes and permits the U.S. government to conduct its foreign policy with considerably less interference from particular investors.’; Kenneth J Vandevelde ‘A Brief History of International Investment Agreements’ (2005–2006) 12 Univ California Davis J Intl L Poly 157, 175—‘In providing the investor with a legal remedy that did not depend upon espousal, these BIT provisions depoliticized investment disputes. That is, they placed investment protection in the realm of law rather than politics.’ 20 Daniel M Price, ‘Some Observations on Chapter Eleven of NAFTA’ (1999–2000) 23 Hastings Intl Comp L Rev 421, 427. 21 Noel Maurer, The Empire Trap: The Rise and Fall of U.S. Intervention to Protect American Property Overseas, 1893–2013 (Princeton University Press 2013). 22 Republic of Ecuador v United States of America, UNCITRAL, PCA Case No 2012-5, Award (29 September 2012) para 201 (quoting the US Statement of Defense). 23 See International Law Commission (ILC), ‘Draft Articles on Diplomatic Protection’ UN Doc A/61/10 (2006) art 1 <http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_8_2006.pdf> accessed 6 September 2017. 24 ibid arts 3-13. See eg Guy IF Leigh, ‘Nationality and Diplomatic Protection’ (1971) 20 ICLQ 453; for an analysis of the law on diplomatic protection of corporations and shareholders see John Dugard, Fourth Report on Diplomatic Protection [55th session of the ILC (2003)]. 25 ILC Draft Articles on Diplomatic Protection (n 23) arts 14, 15. 26 Edwin Borchard, The Diplomatic Protection of Citizens Abroad; or the Law of International Claims (Banks Law Publishing 1915) 354. See also the finding of the Permanent Court of International Justice (PCIJ) in The Mavrommatis Palestine Concessions (Greece v Britain) Judgment (1924) PCIJ Series A, no 2, 12, which stated the following in this regard: ‘It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of international law.’ 27 ILC Draft Articles on Diplomatic Protection (n 23) arts 1, 2. 28 Broches (n 12) 344. 29 Price (n 20) 427 also points to this fact: ‘Investors also welcomed this development because it gave them the opportunity to seek redress without being held hostage to their own government’s political will or whim. The investor’s claim would be decided on the merits and would not be subsumed within a larger political or foreign relations dialogue between its government and the host government.’ 30 ICSID Convention (n 11) art 27: No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute. Diplomatic protection, for the purposes of paragraph (1), shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute. 31 Banro American Resources, Inc and Société Aurifère du Kivu et du Maniema SARL v Democratic Republic of the Congo, ICSID Case No ARB/98/7, Award (1 September 2000) para 15. 32 ibid (n 31) para 15. 33 ibid (n 31) para 23. 34 ibid. 35 ibid (n 31) paras 24, 25. 36 Elettronica Sicula SpA (ELSI) (United States of America v Italy) Judgment, ICJ Rep 1989 (20 July 1989) 15. 37 Treaty of Friendship, Commerce and Navigation Between the United States of America and the Italian Republic (signed 2 February 1948, entered into force 26 July 1949) art XXVI. 38 Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments (signed 25 November 1959, entered into force 28 April 1962) (Germany-Pakistan BIT): ‘Article 11 In the event of disputes as to the interpretation or application of the present Treaty, the Parties shall enter into consultation for the purpose of finding a solution in a spirit of friendship. If no such solution is forthcoming, the dispute shall be submitted to the International Court of Justice if both Parties so agree or if they do not so agree to an arbitration tribunal upon the request of either Party.’ 39 Agreement between the Government of the Italian Republic and the Government of the Republic of Chad concerning the Encouragement and Reciprocal Protection of Investments (signed and entered into force 11 June 1969) (Italy–Chad BIT) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/659> accessed 5 September 2017. 40 Italy–Chad BIT (n 39) art 7: ‘Ogni controversia concernente gli investimenti, oggetto del presente Accordo, che potesse sorgere fra una delle Parti contraenti (…) e una persona fisica o giuridica avente la nazionalità dell’altra Parte, sarà sottoposta alla giurisdizione del Centro Internazionale per il regolamento delle controversie relative agli investimenti, conformemente alla Convezione Internazionale di Washington del 18 marzo 1965. Ogni contestazione ed ogni controversia, fra le due Parti contraenti vertenti sull’interpretazione o sull’applicazione del presente Accordo, saranno regolate per le vie diplomatiche.’ 41 The Mapping Project conducted by the UNCTAD Investment Policy Hub mentions that 2429 out of 2575 mapped treaties provide for both investor-State and inter-State arbitration, 2558 out of 2575 mapped treaties provide for inter-State arbitration and 2444 out of the 2575 mapped treaties provide for investor-State arbitration, UNCTAD Investment Policy Hub, ‘International Investment Agreements, Mapping of IIA Content’ <http://investmentpolicyhub.unctad.org/IIA/mappedContent#iiaInnerMenu> accessed 3 September 2017. 42 Paul Peters mentions in a comparative study on BITs he conducted that out of the inter-State arbitration clauses he mapped in 170 BITs, most are very similar but no two are identical. See Paul Peters, ‘Dispute Settlement Arrangements in Investment Treaties’ (1991) 22 Netherlands YB Intl L 91, 102. Typical clauses are to be found in the UK Model BIT (2005) reprinted in Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (2nd edn OUP 2012). It reads: ‘Article 9 Disputes between the Contracting Parties Disputes between the Contracting Parties concerning the interpretation or application of this Agreement should, if possible, be settled through the diplomatic channel. If a dispute between the Contracting Parties cannot thus be settled, it shall upon the request of either Contracting Party be submitted to an arbitral tribunal. Such an arbitral tribunal shall be constituted for each individual case in the following way. Within two months of the receipt of the request for arbitration, each Contracting Party shall appoint one member of the tribunal. Those two members shall then select a national of a third State who on approval by the two Contracting Parties shall be appointed Chairman of the tribunal. The Chairman shall be appointed within two months from the date of appointment of the other two members. …’ Or the US Model BIT (2012). It reads: ‘Article 37: State-State Dispute Settlement Subject to paragraph 5, any dispute between the Parties concerning the interpretation or application of this Treaty, that is not resolved through consultations or other diplomatic channels, shall be submitted on the request of either Party to arbitration for a binding decision or award by a tribunal in accordance with applicable rules of international law. In the absence of an agreement by the Parties to the contrary, the UNCITRAL Arbitration Rules shall govern, except as modified by the Parties or this Treaty.’ <https://ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf> accessed 2 September 2017. 43 On the issue of interstate investment arbitrations see Christoph Schreuer, ‘Investment Protection and International Relations’ in August Reinisch and Ursula Kriebaum (eds) The Law of International Relations—Liber Amicorum Hanspeter Neuhold (Eleven International Pub 2007) 345, 348–52; Michele Potestà, ‘State-to-State Dispute Settlement pursuant to Bilateral Investment Treaties: Is there Potential?’ in Nerina Boschiero, Tullio Scovazzi, Cesare Pitea and Chiara Ragni (eds) International Courts and the Development of International Law – Essays in Honour of Tullio Treves (Asser Press 2012) 753; Anthea Roberts ‘State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority’ (2014) 55 Harvard Intl LJ 1; Clovis J Trevino, ‘State-to-State Investment Treaty Arbitration and the Interplay with Investor-State Arbitration Under the Same Treaty’ (2014) 5 JIDS 199. 44 Industria Nacional de Alimentos, SA and Indalsa Perú, SA (formerly Empresas Lucchetti, SA and Lucchetti Perú, SA) v Republic of Peru, ICSID Case No ARB/03/4, Award (7 February 2005) paras 7–9. 45 Republic of Italy v Republic of Cuba, Interim Award (15 March 2005); Republic of Italy v Republic of Cuba, Final Award (15 January 2008). 46 Ecuador v United States (n 22). 47 Lucchetti v Peru (n 44) paras 7, 9. 48 Schreuer (n 43) 350–51. 49 Chevron Corporation and Texaco Petroleum Company v The Republic of Ecuador, UNCITRAL, PCA Case No 34877, Partial Award on the Merits (30 March 2010). 50 Ecuador v United States (n 22) paras 5, 40–49; Republic of Ecuador v United States of America, PCA Case No 2012-5, Statement of Defense (29 March 2012) 4. 51 Ecuador v United States (n 22) paras 207, 228. 52 On the issue of re-politicization in the Ecuador v United States case see: W Michael Reisman, Expert Opinion with Respect to Jurisdiction (24 April 2012) para 24 ‘Likewise, in order to induce foreign investment, host states consented to arbitration directly by investors generally without requiring exhaustion of local remedies. The consequence of this agreement was thus to depoliticize the process of resolving disputes. In the absence of the BIT arrangement, foreign investment disputes would once again be taken up by states.’ Ecuador v United States, Christian Tomuschat, Expert Opinion on the Construction of Article VII (24 April 2012) para 32: ‘The BIT aims to depoliticize investment disputes by pushing the home State of the investor back to the sidelines. Ecuador, by contrast, brings the contracting parties back to centre-stage.’ 53 Italy v Cuba, Interim Award (n 45); Italy v Cuba Final Award (n 45). On the case see Michele Potestà, ‘Republic of Italy v. Republic of Cuba’ (2012) 106 AJIL 341. 54 Italy v Cuba, Interim Award (n 45) paras 24–25. 55 Agreement between the Government of the Italian Republic and the Government of the Republic of Cuba concerning the Encouragement and Reciprocal Protection of Investments (signed 7 May 1993, entered into force 23 August 1995) (Italy–Cuba BIT) art 9(2) ‘Se una controversia non potesse essere risolta entro sei mesi a partire dalla data in cui è stata iniziata per iscritto essa potrà essere sottoposta a scelta dell’investitore: … b) Ad un Tribunale arbitrale secondo le disposizioni dei commi da 3 a 5 dell’Articolo 10.’ 56 ibid art 10(3): Regolamento delle Controversie tra le Parti Contraenti Italy/Cuba BIT 1993: ‘3. Il Tribunale Arbitrale verrà costituito nel modo seguente: entro due mesi dalla data di ricezione della richiesta di arbitrato, ogni Parte nominerà un membro del Tribunale. Questi due membri sceglieranno poi, quale Presidente, un cittadino di uno Stato terzo. Il Presidente sarà nominato entro tre mesi dalla data di nomina dei due membri predetti.’ 57 Italy v Cuba, Interim Award (n 45) para 47. 58 Italy v Cuba, Interim Award (n 45) paras 65, 67. 59 Italy v Cuba, Final Award (n 45) 103. 60 Italy v Cuba, Interim Award (n 45) para 46. 61 Article 27 of the ICSID Convention pursues two goals as the drafting history shows. On the one hand the host State shall be protected against multiple claims emanating in parallel from the home State and the investor and on the other hand it aims to depoliticize investment disputes: ‘As a corollary of the principle of allowing an investor direct and effective access to a foreign State without the intervention of his national State it was proposed—and this was an important innovation—that an investor’s national State would no longer be able to espouse a claim of its national. In this way it was sought to ensure that States would not be faced with having to deal with a multiplicity of claims and claimants. The Convention would therefore offer a means of settling directly, on the legal plane, investment disputes between the State and the foreign investor and insulate such disputes from the realm of politics and diplomacy.’ [Summary Record of Proceedings, Addis Ababa Consultative Meetings of Legal Experts, 16–20 December 1963, in History of the ICSID Convention (1968) vol II-1 242]. 62 ‘Article 27—Diplomatic Protection’ in Christoph Schreuer, Loretta Malintoppi, August Reinisch and Anthony Sinclair, The ICSID Convention: A Commentary (2nd edn, CUP 2009) 425, para 33. 63 ibid para 30. 64 On the double nature of these rights see Ursula Kriebaum, ‘The Nature of Investment Disciplines’ in Zachary Douglas, Joost Pauwelyn and Jorge E Vinuales (eds), The Foundations of International Investment Law, Bringing Theory into Practice (OUP 2014) 45, 49–50. In a similar vein speaking of investment treaties as creating rights for both investors and homes States, Roberts (n 43) 37. 65 The case Werner Schneider, acting in his capacity as insolvency administrator of Walter Bau AG (In Liquidation) v The Kingdom of Thailand (formerly Walter Bau AG (in liquidation) v The Kingdom of Thailand), UNCITRAL, Award (1 July 2009) paras 5.54, 5.63, 5.77, 5.78, 5.85, 6.15, 6.19. 15.1 offers an example for this type of diplomatic involvement, that happened before the investor initiated the investor-State arbitration. That case was not an ICSID but an UNCITRAL case and the Germany–Thailand BIT does not contain a clause similar to Article 27 ICSID Convention. 66 Schreuer, Malintoppi, Reinisch and Sinclair (n 62) para 6. 67 Italy v Cuba, Interim Award (n 45) para 65 ‘… L’absence dans l’Accord d’une disposition semblable à l’article 27 de la Convention de Washington de 1965 n’empêche pas l’application de ce principe par analogie.’ 68 Chittharanjan Felix Amerasinghe, Local Remedies in International Law (2nd edn, CUP 2004) 275. ‘… [i]t would be reasonable to infer that, once the procedures directly involving the investor are invoked, the treaty does not permit the resort to diplomatic protection directly with the involvement in arbitration of the investor’s national state. Otherwise, the settlement procedures provided for would duplicate rather than simplify the procedures for the settlement of disputes which would not be a logically consistent result.’ 69 Martins Paparinskis, ‘Investment Arbitration and the Law of Countermeasures’ (2008) 79 BYBIL 264, 281–87; Potestà (n 53) 346. 70 Joachim Pohl, Kekeletso Mashigo and Alexis Nohen, ‘Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey’ (2012) 2 OECD Working Papers on International Investment <http://dx.doi.org/10.1787/5k8xb71nf628-en> accessed 3 September 2017. 71 Here are some random examples: Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Sierra Leone for the Promotion and Protection of Investments (signed 13 January 2000, entered into force 20 November 2001) (UK–Sierra Leone BIT); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Slovenia for the Promotion and Protection of Investments (signed 3 July 1996, entered into force 27 March 1999) (UK–Slovenia BIT); and the Agreement between the Government of the Republic of Korea and the Government of the United Kingdom of Great Britain and Northern Ireland for the Promotion and Protection of Investments (signed and entered into force 4 March 1976) (UK–South Korea BIT) exclude any form of diplomatic protection but only after referral to arbitration. See eg art 8 (4) of the UK–Sierra Leone BIT: ‘Neither Contracting Party shall pursue through the diplomatic channel any dispute referred to the Centre unless: the Secretary-General of the Centre, or a conciliation commission or an arbitral tribunal constituted by it, decides that the dispute is not within the jurisdiction of the Centre; or the other Contracting Party should fail to abide by or to comply with any award rendered by an arbitral tribunal.’ The same provision is contained in art 10(2) of the UK–Slovenia BIT or art 8(2) of the UK–South Korea BIT. Another slightly different example for such a provision is art VII of the Treaty between the United States of America and the Republic of Turkey Concerning the Reciprocal Encouragement and Protection of Investments (signed 3 December 1985, entered into force 18 May 1990) (US-Turkey BIT): ‘ARTICLE VII The Parties shall seek in good faith and in the spirit of cooperation a rapid and equitable solution to any disputes between them concerning the interpretation or application of this treaty. … If such negotiations are unsuccessful, the dispute may be submitted, upon the request of either Party, to an arbitral tribunal for binding decision in accordance with the applicable rules of international law. … 7. This Article shall not be applicable to a dispute which has been submitted to and is still before the Centre pursuant to Article VI.’ A further variation can be found in Article 9(4) of the Agreement between the Hashemite Kingdom of Jordan and the Government of the Italian Republic on the Promotion and Protection of Investments (signed 21 July 1996, entered into force 17 January 2000): ‘4—Both Contracting Parties shall refrain from negotiating through diplomatic channels any matter relating to an arbitration procedure or judicial procedure underway until these procedures have been concluded, and one of the Contracting Parties has failed to comply with the ruling of the Center or the Court of Law within the period envisaged by the ruling,—or else within the period which can be determined on the basis of the international or domestic law provisions which can be applied to the case.’ Article 9(4) of the Italy–Armenia BIT (2003) contains a nearly identical provision. 72 On these clauses see: Ben Juratowitch, ‘The Relationship between Diplomatic Protection and Investment Treaties’ (2008) 23(1) ICSID Rev—FILJ 10, 16-22; Schreuer (n 62) paras 34–37. 73 Claire Provost and Matt Kennard, ‘The obscure legal system that lets corporations sue countries’, The Guardian (10 June 2015) <https://www.theguardian.com/business/2015/jun/10/obscure-legal-system-lets-corportations-sue-states-ttip-icsid> accessed 4 September 2017. 74 Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL Arbitration Rules) (2010) <https://www.italaw.com/sites/default/files/case-documents/italaw3293.pdf> accessed 6 September 2017). 75 1. Guaracachi America, Inc (USA) & 2. Rurelec plc (United Kingdom) v Plurinational State of Bolivia, UNCITRAL, PCA Case No 2011-17, Award (31 January 2014). 76 1. Guaracachi America, Inc (USA) & 2. Rurelec plc (United Kingdom) v Plurinational State of Bolivia, UNCITRAL, PCA Case No 2011-17, Respondents Memorial on Jurisdiction (17 September 2012). 77 1. Guaracachi America, Inc (USA) & 2. Rurelec plc (United Kingdom) v Plurinational State of Bolivia, UNCITRAL, PCA Case No 2011-17, Respondents Memorial on the Merits (15 October 2012). 78 Rowena Mason and Dean Nelson, ‘David Cameron intervenes for Cairn and Vodafone in India’, The Telegraph (19 February 2011) <http://www.telegraph.co.uk/finance/newsbysector/energy/8334832/David-Cameron-intervenes-for-Cairn-and-Vodafone-in-India.html> accessed 4 September 2017. 79 The UNCITRAL Arbitration Rules of 1976 (adopted 15 December 1976) are being applied in Cairn (n 80) https://www.italaw.com/sites/default/files/case-documents/italaw8841.pdf accessed 6 September 2017. Whether these or the revised version of 2010 (n 74) are being applied in Vodafone (n 83) is unknown. 80 Cairn Energy PLC and Cairn UK Holdings Limited v The Republic of India, UNCITRAL, PCA Case No 2016-7. 81 <https://www.italaw.com/sites/default/files/case-documents/italaw8775.pdf> accessed 5 September 2017. 82 Vodafone International Holdings BV v India, UNCITRAL PCA Case No 2016-35. 83 On the case see: Luke Eric Peterson, ‘President of the ICJ Nominates Chair for Vodafone v. India Arbitration – and then Rejects India’s Effort to Disqualify the Nominee’ IAReporter (2 November 2016) https://www.iareporter.com/articles/president-of-icj-nominates-chair-for-vodafone-v-india-arbitration-and-then-rejects-indias-effort-to-disqualify-the-nominee/ accessed 4 September 2017. 84 Luke Eric Peterson, ‘As Repsol files arbitration against Argentina, row erupts over alleged “diplomatic protection” by Spain and the EU’ IAReporter (5 December 2012) <https://www.iareporter.com/articles/as-repsol-files-arbitration-against-argentina-row-erupts-over-alleged-diplomatic-protection-by-spain-and-the-eu/> accessed 4 September 2017. 85 Repsol, SA and Repsol Butano, SA v Argentine Republic, ICSID Case No ARB/12/38. 86 ICSID, ‘Case Details: Repsol, SA and Repsol Butano, SA v Argentine Republic (ICSID Case No ARB/12/38)’<https://icsid.worldbank.org/en/Pages/cases/casedetail.aspx?CaseNo=ARB/12/38> accessed 5 September 2017. 87 The OECD Declaration and Decisions on International Investment and Multinational Enterprises 2012 <https://www.oecd.org/investment/investment-policy/ConsolidatedDeclarationTexts.pdf> accessed 2 November 2017. 88 So far only few investment protection treaties contain a rule analogous to Article 27 of the ICSID Convention. See p 12ff. © The Author(s) 2018. Published by Oxford University Press on behalf of ICSID. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png ICSID Review: Foreign Investment Law Journal Oxford University Press

Evaluating Social Benefits and Costs of Investment Treaties: Depoliticization of Investment Disputes

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Abstract

Abstract The growth in the number of investment treaties and investment treaty arbitrations has led to a lively debate about the benefits, justification, and problems of this special form of protection for foreign investors. This paper makes the positive case for understanding international investment law as an instrument for the depoliticization of conflicts that at times had led to fierce confrontations between home and host States of investors. Depoliticization means the transfer of such conflicts from the political arena of diplomatic protection to a judicial forum with objective, previously agreed standards and a pre-formulated dispute settlement process. First, this article addresses the goals of investment arbitration in this context. Second, it discusses the means provided for in the ICSID Convention and in investment protection treaties in their various forms to achieve these goals. Furthermore, it analyses how different investment protection instruments achieve different degrees of depoliticization. Third, it discusses whether investment treaties have been successful in providing judicial means to prevent investor-State conflicts developing into inter-State conflicts, which are dominated by power politics. Before entering into a discussion of whether depoliticization is a benefit emanating from investment treaties, it is useful to explain the concept of depoliticization as used here. Merriam-Webster’s Dictionary defines depoliticize as: ‘to remove the political character of; take out of the realm of politics’. First known use: 1937. Similarly, the Oxford English Dictionary speaks of: ‘Remove from political activity or influence.’ Hersch Lauterpacht aptly stated ‘… as a rule, every international dispute is of a political character, if by that is meant that it is of importance to the State in question’.2 But as he said some pages later ‘… it is equally easy to show that all international disputes are, irrespective of their gravity, disputes of a legal character in the sense that, so long as the rule of law is recognized, they are capable of an answer by the application of legal rules’.3 The fact that a dispute is of importance to the State in question does not mean that the best way to solve the dispute is by political means. This paper does not argue that the disputes that are before investment tribunals do not often concern questions of political importance to the host State or even to both the home and the host State.4 Rather, the focus is on whether it is beneficial to ‘depoliticize’ investment disputes in the sense of transferring them from the political arena of diplomatic protection to a judicial forum with objective, previously agreed standards and a pre-formulated dispute settlement process. This will be looked at from three aspects: goals; means; and achievements. I. GOALS There was a time when conflicts about the treatment of foreign investors were the cause of fierce confrontation between home and host States of investors. In the late 19th and early 20th century this led to numerous military interventions, often by European States in Latin America. Diplomatic protection was often accompanied by ‘gunboat diplomacy’.5 Borchard has vividly described the situation in which the home State, the host State and the investor might end up in a typical diplomatic protection scenario before the adoption of the UN Charter:6 the investor was in the hands of its home State and its fortune depended on whether he had the nationality of a strong or a weak State; the host State was confronted with coercion exercised by another State after a unilateral determination by that State’s government that its citizen’s rights had been violated. The weaker the host State, the more exposed it is to arbitrary determinations of the claiming State. While strong States can violate aliens’ rights with impunity, weak states have to pay even unjust claims. The claiming State makes ex parte determinations on the validity of the claim and is exposed to domestic political influences. This can lead to the espousal of claims with which the State does not fully identify or, on the other hand, to valid claims not being followed up. Politics rather than the rule of law govern the case: A cursory examination of the existing practice will demonstrate the inefficiency, if not, indeed, the unfairness of the system. … Under this system all three parties to the issue, the individual, the defendant nation, and the claimant nation, are in a precarious and unhappy condition. Politics rather than law governs the outcome of the case. … the complaining state is likely to constitute itself plaintiff, judge, and sheriff at one and the same time. … all three parties to the issue … are exposed to the disturbing interference of politics as a determining factor. This does not make for the growth of law or for peace. … Under the existing system the issue is determined by the ex parte views of the strong state, whether plaintiff or defendant.7 Even after the use of force as a means to enforce public international law had been prohibited, disputes about foreign investments had at times the potential to turn into military conflicts. In 1956 the dispute arising from the nationalization of the Suez Canal led to a military invasion in Egypt by the United Kingdom (UK) and France.8 Also the Cuba crisis had its root cause in nationalizations of US investors by Cuba.9 The USA–Iran conflict started out as a conflict between the Anglo-Iran Oil Company and Iran, before it turned into a conflict between the UK and Iran after the nationalization of Anglo-Iranian Oil Company and later between the USA and Iran because of widespread nationalizations and expropriations of US companies after the Iranian Revolution.10 With this legacy in mind, the idea of depoliticization played a prominent role in the drafting of the ICSID Convention.11 The goal was to replace diplomatic protection, which was rightly perceived as being dominated by political considerations, by a direct judicial remedy for investors. Aron Broches, the General Counsel of the World Bank, explicitly pointed to this motive in his Hague Lecture on the ICSID Convention: [E]ven in those countries in which foreign private investment is welcome in principle, the terms and conditions on which it operates have given rise to controversy between the host countries and the private investors and these controversies have on occasion, and there are a number of obvious recent examples, involved the national governments of the investors as well. It is beyond doubt that fear of political risk operates as a deterrent to the flow of private foreign capital to developing countries. The World Bank therefore considered it appropriate to explore whether it could make a contribution to an improvement in the investment climate, by reducing the likelihood of unresolved conflicts between host countries and investors, and in particular by doing so in a manner which would eliminate the risk of a confrontation of the host country and the national State of the investor.12 This would have advantages for all three protagonists of investment protection: host States, home States and investors.13 The idea was that depoliticization protects host States by saving them from diplomatic protection including gunboat diplomacy. Ibrahim Shihata, the long-serving Secretary-General of ICSID, pointed to this advantage when he described depoliticization as one of the main features of the ICSID Convention: The International Centre for the Settlement of Investment Disputes (…) was created by the Convention on the Settlement of Investment Disputes (…) to provide a forum for conflict resolution in a framework which carefully balances the interests and requirements of all the parties involved, and attempts in particular to ‘depoliticize’ the settlement of investment disputes.14 Some of the conflicts mentioned above had occurred shortly before the ICSID Convention had been negotiated and must have inspired the drafters of the ICSID Convention. Certainly, the adoption of the UN Charter with its prohibition of the use of force and the threat to use force15 except in self-defence16 brought about an important change in the legal framework concerning the means available to respond to violations of investors’ rights. But even without the threat of violence, being sued by an investor is a far lesser evil than being pressurized by a powerful country on behalf of its national. But depoliticization also relieves home States of an unpleasant burden. As Kenneth Vandevelde, a US investment treaty negotiator, explained, the USA sought the inclusion of investor-state arbitration in investment protection treaties to ‘provide investors with a remedy that would not depend upon the involvement of the investor’s government in the dispute’.17 He describes this dependence as unsatisfactory for both the investor and the government since it complicates or even impedes US foreign policy interests.18 In this context Vandevelde repeatedly and explicitly mentions depoliticization as a goal of BITs and explains that this would relieve foreign policy from pressure by national investors.19 In the same vein Daniel Price, one of the US negotiators of NAFTA and US BITs explained in an article that providing for direct access of investors to the litigation forum would relieve the home State and its foreign policy from the burden to step in for the investor: ‘By allowing the investor to litigate its claim directly, the investor’s sovereign could distance itself from the dispute.’20 This picture is confirmed by Noel Maurer who has shown in his book, The Empire Trap, using the USA as an example, how democratic governments were unable to escape the domestic pressure to exercise diplomatic protection in a number of investment conflicts even if this was against their overall foreign policy interest.21 The US government has acknowledged depoliticization as the principal rationale for the establishment of investor-State dispute settlement. In a recent Permanent Court of Arbitration (PCA) investment arbitration, the Ecuador v United States case, the US government explicitly mentioned the goal of depoliticization. It referred to it as: ‘… a principal rationale for investor-State dispute mechanisms, which is to depoliticize investment disputes and permit neutral and binding arbitration between the State and the investor’.22 For an investor, diplomatic protection means it needs to petition the home State to pursue the claim on its behalf.23 As a precondition for the exercise of diplomatic protection by the home State, the investor has to have the nationality of this State24 and has to exhaust local remedies in the host State of the investment.25 If the home State is prepared to exercise diplomatic protection, it is generally assumed that it asserts its own right to protect its subject vis-à-vis the injuring State after the subject was unable to obtain redress in the host State.26 Therefore, in the context of diplomatic protection a primary conflict between an individual and the host State concerning an obligation towards the injured person is transformed into an inter-State conflict. In the inter-State conflict, only the home State is a party and in full control of the claim.27 Whether the home State is willing to pursue the investor’s claim depends on many factors. Big players are more likely than small companies to obtain diplomatic protection. The relative political strength of the home and host State will enter into the equation as well as various foreign policy considerations of the home State. Moreover, diplomatic protection entails the loss of control over the process of pursuing the claim since the investor does not have control over any of these factors and is totally in the hands of its home State concerning whether and how a claim will be pursued. Broches hinted at these disadvantages of diplomatic protection, when he explained the essential features of the ICSID Convention from the investors’ perspective: If the investor feels aggrieved by actions of the host government and has found no redress through the exercise of local remedies, he may seek the protection of his national government. Even if the investor’s government is willing to give that protection and if the investor has not been required, as a condition of entry, to waive diplomatic protection, there is no guarantee that the host government will be willing to submit the dispute to the jurisdiction of an international arbitral or other tribunal. Moreover, the investor’s government may in fact not be willing to take up a meritorious claim of the investor because it fears that to do so would be regarded as an unfriendly act by the host government and interfere with bilateral relations on other matters. This political element is likely to weigh particularly heavily if the merits of the investor’s case are not wholly clear in his government’s view, thus withholding from the investor any opportunity to have his case judged by an impartial tribunal.28 Therefore, by providing the investor with direct access to an international dispute settlement forum the investor is no longer subjected to the political considerations of its home State29 and the dispute between a private party and a State is not transformed into an inter-State dispute. The goal of depoliticizing investment disputes incorporated in Article 27 of the ICSID Convention,30 was of great importance for the Tribunal in Banro v Democratic Republic of Congo when it declined jurisdiction.31 The investor was a Canadian corporation with a US subsidiary. The claim arose from an investment contract between the company and Congo referring to the ICSID Convention. But unlike the USA, Canada was not a party to the ICSID Convention at the time of the claim. Therefore, Banro Resources assigned the claim to its US subsidiary, Banro American, which filed an ICSID claim. The Tribunal underlined that depoliticization had been one of the main objectives for the adoption of the ICSID Convention: One of the main objectives of the mechanism instituted by the Washington Convention was to put an end to international tension and crises, leading sometimes to the use of force, generated in the past by the diplomatic protection accorded to an investor by the State of which it was a national. Conversely, the investor never enjoyed the assurance of being able to benefit from the protection of its Government, since, as a rule, diplomatic protection is accorded at the discretion of the Government; the extent to which an investor benefited or did not benefit from the protection of its Government depended on the political situation and political relations between the two Governments. The Washington Convention introduced mechanisms to remedy this dual drawback that brings the private investor face to face with the host State and which avoid political confrontation between the host State and the State of which the investor is a national.32 The Tribunal found that Canada had diplomatically supported the Banro Resources’ case. This was not illegal since Canada had not been a party to the ICSID Convention at the relevant time.33 However, the Tribunal inferred from the object and purpose of the ICSID Convention, relying also on the drafting history, that it would be against one of the main objectives of the Convention were it to allow the company to ask for diplomatic protection of Canada and thereafter to rely on its US nationality to submit a dispute under the investor-State dispute settlement clause: The Banro Group, however, was not free to submit to the Democratic Republic of the Congo both diplomatic intervention on the part of the Canadian Government, availing itself of its parent company, Banro Resource, and an arbitration proceeding before an ICSID tribunal by availing itself of the American nationality of one of its subsidiaries, Banro America.34 Since the Tribunal found that this defeated the object of the ICSID Convention it declined jurisdiction.35 II. MEANS There are several ways to transfer investment disputes from the political arena of diplomatic protection to a judicial forum with objective, previously agreed standards and a pre-formulated dispute settlement process. They achieve different degrees of depoliticization. Treaties of Friendship, Commerce and Navigation (FCN) and especially older FTAs or BITs often contain dispute settlement clauses that only provide for the jurisdiction of the International Court of Justice (ICJ) and/or an inter-State arbitral tribunal. A prominent example for an FCN treaty providing for ICJ jurisdiction is the Treaty between the USA and Italy which formed the basis for the famous ELSI36 case.37 The first BIT, the treaty signed between Germany and Pakistan in 1959 in its Article 11 provided for the jurisdiction of the ICJ if both Parties agreed to this forum. In the absence of such an agreement it provided for the establishment of an inter-State arbitral tribunal.38 In these treaties, the dispute is clearly before a judicial forum but not completely depoliticized, since the basis for the legal proceedings is still diplomatic protection. It was only in 1969 that the first BIT, which was signed after the ICSID Convention, the treaty between Italy and Chad,39 had entered into force, provided for investor-State arbitration. This treaty provided only for investor-State arbitration and reserved disputes between the State parties for regulation by diplomatic means.40 Nearly all modern BITs or investment chapters in FTAs provide for two forms of arbitration: investor-State and State-State.41 Under the investor-State arbitration clause, investors can institute arbitration proceedings for an alleged violation of investment protection standards. The State-State arbitration clauses provide that each of the State parties can bring a case against the other State party in case of a dispute concerning the interpretation and/or application of the Treaty.42 So far inter-State arbitration clauses have been invoked only in a very limited number of cases:43Peru v Chile,44Italy v Cuba45 and Ecuador v United States.46 The Peru v Chile and the Ecuador v United States cases were prompted by investor-State arbitrations. Peru attempted to use the inter-State arbitration process in response to the investment claim brought by Lucchetti, a Chilean investor, while the investor-State arbitration was still pending. It unsuccessfully requested the suspension of the investor-State proceedings as a consequence of the introduction of an inter-State arbitration.47 The inter-State case was not subsequently pursued.48 The Ecuador v United States case was launched by Ecuador in response to the award on the merits in the Chevron v Ecuador case49 before that award had been enforced.50 The Tribunal declined jurisdiction by majority since it denied the existence of a dispute with some implications or consequences for the relations between the Parties on an inter-State level.51 Both cases show, that depoliticization is not fully achieved under the inter-State arbitration model. The claimant States tried to influence the outcomes of pending and decided cases by having another tribunal decide the case on the assumption that this tribunal’s decision would have an effect on the investor-State cases.52 However, the attempts to repoliticize the cases failed since both inter-State arbitrations did not reach the intended goals to transfer the investor-State disputes back into inter-State arbitrations. In the Italy v Cuba case53 Italy brought diplomatic protection claims as well as claims in its own name arguing that it had ‘double standing’.54 The case is unusual since the Italy-Cuba BIT provides for investor-State and inter-State arbitration but in a rather peculiar way. Article 9 of the BIT, which provides for investor-State arbitrations, refers such arbitrations to the rules of the inter-State arbitration.55 This means, for example, that the two States will establish the arbitral tribunal and appoint the arbitrators.56 Therefore, the BIT relied at least partly on the system of diplomatic protection requiring the intervention of the home State of the investor for the establishment of an arbitral tribunal. Cuba argued that because of the possibility for investor-State arbitration in the BIT, Italy was prevented from bringing a diplomatic protection claim.57 The Tribunal rejected the argument since the investors had neither brought the case before an arbitral tribunal nor given their advance consent.58 The Tribunal rejected all the diplomatic protection claims either on jurisdictional grounds or on the merits. As a consequence, it also rejected the claims Italy pursued in its own name.59 The Italy v Cuba case was a classic example for the traditional regime of diplomatic protection, which requires the political intervention of the home State of the investor. In fact, Cuba accused Italy of politicizing the case by exercising diplomatic protection.60 Therefore, in cases relying on an inter-State arbitration clause the depoliticization is partly achieved with the transfer of the dispute to a neutral forum. But a dispute that originally existed between an investor and a State is still transformed into an inter-State dispute with all the potential negative side effects. Only in the investor-State arbitration setting can the depoliticization of the dispute be fully realized. This goal can be achieved in different ways. As has already been mention it was an explicit goal of the States negotiating the ICSID Convention to depoliticize investment disputes. For this purpose they adopted Articles 27 of the ICSID Convention:61 Article 27 No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute. Diplomatic protection, for the purposes of paragraph (1), shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute. Article 27 of the ICSID Convention prohibits any recourse to diplomatic protection as soon as there is an agreement between an investor and the host State to submit a case to ICSID arbitration. This effect is activated only when both parties have perfected consent. This requires the investor’s acceptance of the host State’s offer in written form.62 Furthermore, the right to exercise diplomatic protection revives when an award is not honoured. Therefore, diplomatic protection of an investor by its home State is not totally banned. But the possibility to exercise diplomatic protection is suspended from the moment of consent between the investor and the host State until an award is not honoured by a host State.63 Therefore, we are in the presence of a duality of procedural rights (investor/home State) established usually by two different arbitration clauses. The State-track to espouse the claim is suspended once the investor has perfected the host State’s offer of consent to arbitration. Until the investor perfects consent, both the investor and the home State can exercise their right to start an arbitration independently. This is in line with the double nature of investment rights guaranteeing substantive and procedural rights at the same time to the home State and to the investor and providing for their independent invocation.64 Given the home State’s independent possibility to act, the complete depoliticization of an investment dispute will only be achieved if an investor has perfected consent before his home State has espoused his claim. Furthermore, the ban of the exercise of diplomatic protection as soon as consent between the investor and the host State is perfected does not mean that diplomatic involvement is excluded altogether. This is highlighted by paragraph 2 of Article 27 of the ICSID Convention. It provides that informal diplomatic exchanges for the purpose of facilitating a settlement of a dispute are permitted.65 While Article 27 of the ICSID Convention does not ban diplomatic exchanges to facilitate the settlement of an investment dispute, its clear intention is to prevent the outbreak of an inter-State conflict. Article 64 of the ICSID Convention provides a further possibility for inter-State claims in the context of investment arbitration. It establishes the jurisdiction of the ICJ for disagreements on the interpretation or the application of the ICSID Convention. During the negotiation process this provision raised concerns with regard to the depoliticization achieved by Article 27 of the ICSID Convention. In this context, the Report of the Executive Directors explicitly states that Article 64 must not be used to undermine this goal enshrined in Article 27 of the ICSID Convention: 45. … Nor does it empower a State to institute proceedings before the Court in respect of a dispute which one of its nationals and another Contracting State have consented to submit or have submitted to arbitration, since such proceedings would contravene the provisions of Article 27, unless the other Contracting State had failed to abide by and comply with the award rendered in that dispute. Therefore, the depoliticization goal has high priority in the investment dispute settlement system of the ICSID Convention. It will be achieved once the investor perfects consent, but it is not absolute since until this point in time both avenues can be pursued. Furthermore, the ICSID Convention does not exclude the possibility for an investor to bring an investor-State claim after the home State has started to exercise diplomatic protection. A violation of Article 27 by the home State of an investor will not lead to a loss of jurisdiction of the investor-State tribunal. But the inter-State tribunal or the ICJ will have to decline jurisdiction in the diplomatic protection case.66 Furthermore, the host State will be able to rely on Article 64 of the ICSID Convention, bring the case before the ICJ and invoke a violation of Article 27 of the ICSID Convention. Outside the ICSID system, arbitration rules, which were as a rule not specifically drafted for investor-State arbitration, do not deal with the issue of diplomatic protection and therefore, do not contain an explicit prohibition of the espousal of claims by the home State as soon as an investor consented to investor-State arbitration. No consensus exists whether a customary law provision analogous to Article 27 of the ICSID Convention applicable to investment arbitration in general exists. The Italy v Cuba Tribunal deciding a case not based on the ICSID Convention found that Article 27 ICSID Convention was applicable by analogy.67 Amerasinghe argues that it would be reasonable to infer that a claim may not be espoused by the home State if an investor-State arbitration is on the way since otherwise procedures would be duplicated.68 Paparinskis and Potestà both hold the opinion that there is no State practice supporting the existence of a customary law norm analogous to Article 27 of the ICSID Convention and refer to the materials of the ICSID Convention where Article 27 was presented as an innovation rather than a codification of existing customary international law.69 Paparinskis rightly observes that absence of the exercise of diplomatic protection in investor-state disputes will not be enough to prove the existence of such a norm under customary international law. Rather, positive proof that the exercise of diplomatic protection is prohibited despite the absence of an explicit norm to this regard would be necessary. According to an OECD study of 2012 around 21 percent of international investment protection treaties contain a provision that is similar to the one provided for in Article 27 of the ICSID Convention.70 The scope of these provisions varies slightly.71 Their common goal is to block or limit diplomatic protection in case of a pending investor-State dispute.72 Therefore, by means of these clauses an espousal of claims by the home State of an investor is prevented once an investor-State case is pending and the complete depoliticization of the dispute can be achieved. In conclusion, the current set-up of investment arbitration provides for different degrees of depoliticization. All treaties have in common that they shift the disputes from the purely political arena to a judicial system of dispute settlement. In the case of inter-State dispute settlement the cases are partly depoliticized since they will be decided by arbitral tribunals or the ICJ and are therefore judicialized. But an investor-State dispute will still be transformed into an inter-State dispute and some cases will involve classical diplomatic protection (others will concern issue of declaratory relief or pure treaty interpretation). A full depoliticization will only be obligatory in case of the presence of consent to investor–State arbitration under the ICSID Convention or a treaty that contains a provision analogous to Article 27 of the ICSID Convention or even stricter than this provision. A full repoliticization is provided for by the current system once a State does not comply with awards, since then under all of the treaty options, the right of the home State to exercise diplomatic protection revives. III. ACHIEVEMENTS It is difficult to measure achievements. Negative proof is difficult if not impossible to furnish. We cannot prove conflicts or military interventions that never materialized. But it is possible to say that the number of inter-State conflicts in the context of investment disputes has decreased substantially since the introduction of investment arbitration. Numerous US negotiators have pointed out that the government does not want to get involved in investor-State disputes. Home States can point to the alternative forum and ward off demands to exercise diplomatic protection. The fact that only very few inter-State cases have been brought so far compared to the much larger number of investor-State arbitrations also indicates that by and large these disputes have been depoliticized. Some cases are mentioned in the media, where allegedly home-States have exercised diplomatic protection despite a pending investment dispute. One of them was the case Rurelec v Bolivia.73 The case was arbitrated pursuant to the UNCITRAL rules,74 administered by the PCA and based on a BIT that does not contain a provision similar to Article 27 of the ICSID Convention.75 Therefore, the case operated under an only partially depoliticized setting of investor-State arbitration since there was no prohibition of diplomatic protection even during a pending arbitration case. Furthermore, nowhere in the Respondent’s memorial on jurisdiction,76 memorial on the merits77 or in the award is there any complaint about an exercise of diplomatic protection by the home-State. Nor was there any indication that such protection would have been carried out in a way that would lead to a conflict with the host State. The Telegraph of 19 February 2011 mentions two cases in which the British government allegedly exercised diplomatic protection on behalf of Cairn and Vodafone in India in an article called ‘David Cameron intervenes for Cairn and Vodafone in India’.78 Here, the picture is the same. The cases were arbitrated under the UK–India BIT and the Netherlands–India BIT under the UNCITRAL rules,79 administered by the PCA. Neither of the two BITs contains a clause prohibiting the exercise of diplomatic protection by the home State of the investor at any given point in time. In the Cairn v India80 case, a notice of claim was filed on 13 March 2015, long after the article alleging the undue exercise of diplomatic protection had been published.81 So far no decision on jurisdiction or merits has been adopted by the Tribunal. In the Vodafone v India82 case, it took until November 2016 until a tribunal was constituted and apparently no decision on jurisdiction or the merits has been taken that could indicate whether India has raised the issue of diplomatic protection.83 So far there is only one ICSID arbitration where reports have emerged concerning complaints by a host State about the improper exercise of diplomatic protection by a home-State during the waiting period provided for by the applicable investment protection treaty albeit not in the form of an espousal of claim. The IAReporter84 commented on the Repsol v Argentina85 arbitration that had in the meantime been discontinued.86 It was reported that Spain and the EU had urged the membership of the OECD to find that Argentina’s treatment of Repsol was not in compliance with its National Treatment obligations under the OECD Declaration on International Investment and Multinational Enterprises.87 According to the reports, there was some discussion among the Member States whether these actions by Spain were an impermissible form of diplomatic protection. Argentina took that position in view of the pending Repsol case and Article 27 of the ICSID Convention. No information on the details of the discussion or its outcome are available. But the case shows that it is possible to legitimately resist diplomatic protection efforts by a State and that these arguments are taken seriously by the other States. These exceptional cases only underline the principal finding that the depoliticization goal that had been considered a critical feature of the ICSID Convention by its drafters and has been implemented through its Article 27 was achieved. It is doubtful whether the rule enshrined in Article 27 of the ICSID Convention has achieved customary international law status. Therefore, it would be advisable if States were to include in a systematic manner analogous clauses in their investment protection treaties to guarantee the full depolitizication also outside the scope of application of the ICSID Convention.88 But even outside the ICSID Convention, the mere existence of BITs and other IIAs has achieved a measure of depoliticization of investment disputes, since there will always be an option to pursue these disputes before an arbitral tribunal. Footnotes 2 Hersch Lauterpacht, The Function of Law in the International Community (republished OUP 2011) 161. 3 ibid 166. 4 For a contribution looking at depoliticization from the perspective of whether the subjects before tribunals are of political importance see: Catharine Titi, ‘Are Investment Tribunals Adjudicating Political Disputes? Some Reflections on the Repoliticization of Investment Disputes and (New) Forms of Diplomatic Protection’ (2015) 32 J Intl Arb 261–88. 5 See eg Edwin M Borchard, ‘Limitations on Coercive Protection’ (1927) 21 AJIL 303; Miriam Hood, Gunboat Diplomacy, 1895–1905: Great Power Pressure in Venezuela (AS Barnes 1975); Charles Lipson, Standing Guard, Protecting Foreign Capital in the Nineteenth and Twentieth Centuries (University of California Press 1985); Noel Maurer, The Empire Trap: The Rise and Fall of US Intervention to Protect American Property Overseas, 1893–2013 (Princeton University Press 2013); O Thomas Johnson Jr and Jonathan Gimblett, ‘From Gunboats to BITs: The Evolution of Modern International Investment Law’ (2012) YB Intl Invest L & Poly 2010–2011 649, 650–57. 6 Charter of the United Nations and Statute of the International Court of Justice (signed 26 June 1945, entered into force 24 October 1945) (UN Charter). See below (n 16 and n 17). 7 Borchard (n 5) 303ff. 8 See eg Thomas T F Huang, ‘Some International and Legal Aspects of the Suez Canal Question’ (1957) 51 AJIL 277; Maurizio Arcari, ‘Suez Canal’, The Max Planck Encyclopedia of Public International Law (2013) vol IX, 675. 9 See eg Leland L Johnson, ‘US Business Interest in Cuba and the Rise of Castro’ (1965) 17 World Politics 440; Andreas F Lowenfeld, ‘Cuba’, The Max Planck Encyclopedia of Public International Law (2013) vol II, 886. 10 See eg Brendan F Brown, ‘The Juridical Implications of the Anglo-Iranian Oil Company Case’ (1952) Washington Univ LQ 384; Alexander Orakhelashvili, ‘Anglo-Iranian Oil Company Case’, The Max Planck Encyclopedia of Public International Law (2013) vol I, 396; Sunday’s Pahuja and Caitlin Storr, ‘Rethinking Iran and International Law: The Anglo-Iranian Oil Company Case Revisited’ in James Crawford, Abdul Koroma and Said Mahmoudi (eds), The International Legal Order: Current Needs and Possible Responses, Essays in Honour of Djamchid Momtaz (Brill 2017) 53. 11 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (opened for signature 18 March 1965, entered into force 14 October 1966) (ICSID Convention). Aron Broches, the General Counsel of the World Bank, pointed several times to the importance of depoliticization for the elaboration of the ICSID Convention. 12 Aron Broches, ‘The Convention on the Settlement of Investment Disputes between States and Nationals of Other States’ (1972) 136 RdC 331, 43–44. 13 Borchard (n 5) 305 has expressed the idea that arbitration would be advantageous for all three parties since it would be law and not politics that would determine the outcome: ‘Were this done, all three parties to the issue would be assured of the protection of law for the determination of its rights and for protection against unjust intervention, and the plaintiff state would be relieved from the pressure of politics inducing intervention, from the danger of war and from the charge of imperialisms and naked might.’ 14 Ibrahim Shihata, ‘Towards a Greater Depoliticization of Investment Disputes: The Roles of ICSID and MIGA’ (1986) 1(1) ICSID Rev—FILJ 1, 4. 15 UN Charter (n 6) art 2, para 4: ‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state … .’ 16 UN Charter (n 6) art 51: ‘Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken the measures necessary to maintain international peace and security.’ 17 Kenneth J Vandevelde, US International Investment Agreements (OUP 2009) 576. 18 ibid 577. 19 ibid 577 ‘… the 1983 model thus depoliticizes investment disputes and permits the U.S. government to conduct its foreign policy with considerably less interference from particular investors.’; Kenneth J Vandevelde ‘A Brief History of International Investment Agreements’ (2005–2006) 12 Univ California Davis J Intl L Poly 157, 175—‘In providing the investor with a legal remedy that did not depend upon espousal, these BIT provisions depoliticized investment disputes. That is, they placed investment protection in the realm of law rather than politics.’ 20 Daniel M Price, ‘Some Observations on Chapter Eleven of NAFTA’ (1999–2000) 23 Hastings Intl Comp L Rev 421, 427. 21 Noel Maurer, The Empire Trap: The Rise and Fall of U.S. Intervention to Protect American Property Overseas, 1893–2013 (Princeton University Press 2013). 22 Republic of Ecuador v United States of America, UNCITRAL, PCA Case No 2012-5, Award (29 September 2012) para 201 (quoting the US Statement of Defense). 23 See International Law Commission (ILC), ‘Draft Articles on Diplomatic Protection’ UN Doc A/61/10 (2006) art 1 <http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_8_2006.pdf> accessed 6 September 2017. 24 ibid arts 3-13. See eg Guy IF Leigh, ‘Nationality and Diplomatic Protection’ (1971) 20 ICLQ 453; for an analysis of the law on diplomatic protection of corporations and shareholders see John Dugard, Fourth Report on Diplomatic Protection [55th session of the ILC (2003)]. 25 ILC Draft Articles on Diplomatic Protection (n 23) arts 14, 15. 26 Edwin Borchard, The Diplomatic Protection of Citizens Abroad; or the Law of International Claims (Banks Law Publishing 1915) 354. See also the finding of the Permanent Court of International Justice (PCIJ) in The Mavrommatis Palestine Concessions (Greece v Britain) Judgment (1924) PCIJ Series A, no 2, 12, which stated the following in this regard: ‘It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights—its right to ensure, in the person of its subjects, respect for the rules of international law.’ 27 ILC Draft Articles on Diplomatic Protection (n 23) arts 1, 2. 28 Broches (n 12) 344. 29 Price (n 20) 427 also points to this fact: ‘Investors also welcomed this development because it gave them the opportunity to seek redress without being held hostage to their own government’s political will or whim. The investor’s claim would be decided on the merits and would not be subsumed within a larger political or foreign relations dialogue between its government and the host government.’ 30 ICSID Convention (n 11) art 27: No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute. Diplomatic protection, for the purposes of paragraph (1), shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute. 31 Banro American Resources, Inc and Société Aurifère du Kivu et du Maniema SARL v Democratic Republic of the Congo, ICSID Case No ARB/98/7, Award (1 September 2000) para 15. 32 ibid (n 31) para 15. 33 ibid (n 31) para 23. 34 ibid. 35 ibid (n 31) paras 24, 25. 36 Elettronica Sicula SpA (ELSI) (United States of America v Italy) Judgment, ICJ Rep 1989 (20 July 1989) 15. 37 Treaty of Friendship, Commerce and Navigation Between the United States of America and the Italian Republic (signed 2 February 1948, entered into force 26 July 1949) art XXVI. 38 Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments (signed 25 November 1959, entered into force 28 April 1962) (Germany-Pakistan BIT): ‘Article 11 In the event of disputes as to the interpretation or application of the present Treaty, the Parties shall enter into consultation for the purpose of finding a solution in a spirit of friendship. If no such solution is forthcoming, the dispute shall be submitted to the International Court of Justice if both Parties so agree or if they do not so agree to an arbitration tribunal upon the request of either Party.’ 39 Agreement between the Government of the Italian Republic and the Government of the Republic of Chad concerning the Encouragement and Reciprocal Protection of Investments (signed and entered into force 11 June 1969) (Italy–Chad BIT) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/659> accessed 5 September 2017. 40 Italy–Chad BIT (n 39) art 7: ‘Ogni controversia concernente gli investimenti, oggetto del presente Accordo, che potesse sorgere fra una delle Parti contraenti (…) e una persona fisica o giuridica avente la nazionalità dell’altra Parte, sarà sottoposta alla giurisdizione del Centro Internazionale per il regolamento delle controversie relative agli investimenti, conformemente alla Convezione Internazionale di Washington del 18 marzo 1965. Ogni contestazione ed ogni controversia, fra le due Parti contraenti vertenti sull’interpretazione o sull’applicazione del presente Accordo, saranno regolate per le vie diplomatiche.’ 41 The Mapping Project conducted by the UNCTAD Investment Policy Hub mentions that 2429 out of 2575 mapped treaties provide for both investor-State and inter-State arbitration, 2558 out of 2575 mapped treaties provide for inter-State arbitration and 2444 out of the 2575 mapped treaties provide for investor-State arbitration, UNCTAD Investment Policy Hub, ‘International Investment Agreements, Mapping of IIA Content’ <http://investmentpolicyhub.unctad.org/IIA/mappedContent#iiaInnerMenu> accessed 3 September 2017. 42 Paul Peters mentions in a comparative study on BITs he conducted that out of the inter-State arbitration clauses he mapped in 170 BITs, most are very similar but no two are identical. See Paul Peters, ‘Dispute Settlement Arrangements in Investment Treaties’ (1991) 22 Netherlands YB Intl L 91, 102. Typical clauses are to be found in the UK Model BIT (2005) reprinted in Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (2nd edn OUP 2012). It reads: ‘Article 9 Disputes between the Contracting Parties Disputes between the Contracting Parties concerning the interpretation or application of this Agreement should, if possible, be settled through the diplomatic channel. If a dispute between the Contracting Parties cannot thus be settled, it shall upon the request of either Contracting Party be submitted to an arbitral tribunal. Such an arbitral tribunal shall be constituted for each individual case in the following way. Within two months of the receipt of the request for arbitration, each Contracting Party shall appoint one member of the tribunal. Those two members shall then select a national of a third State who on approval by the two Contracting Parties shall be appointed Chairman of the tribunal. The Chairman shall be appointed within two months from the date of appointment of the other two members. …’ Or the US Model BIT (2012). It reads: ‘Article 37: State-State Dispute Settlement Subject to paragraph 5, any dispute between the Parties concerning the interpretation or application of this Treaty, that is not resolved through consultations or other diplomatic channels, shall be submitted on the request of either Party to arbitration for a binding decision or award by a tribunal in accordance with applicable rules of international law. In the absence of an agreement by the Parties to the contrary, the UNCITRAL Arbitration Rules shall govern, except as modified by the Parties or this Treaty.’ <https://ustr.gov/sites/default/files/BIT%20text%20for%20ACIEP%20Meeting.pdf> accessed 2 September 2017. 43 On the issue of interstate investment arbitrations see Christoph Schreuer, ‘Investment Protection and International Relations’ in August Reinisch and Ursula Kriebaum (eds) The Law of International Relations—Liber Amicorum Hanspeter Neuhold (Eleven International Pub 2007) 345, 348–52; Michele Potestà, ‘State-to-State Dispute Settlement pursuant to Bilateral Investment Treaties: Is there Potential?’ in Nerina Boschiero, Tullio Scovazzi, Cesare Pitea and Chiara Ragni (eds) International Courts and the Development of International Law – Essays in Honour of Tullio Treves (Asser Press 2012) 753; Anthea Roberts ‘State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority’ (2014) 55 Harvard Intl LJ 1; Clovis J Trevino, ‘State-to-State Investment Treaty Arbitration and the Interplay with Investor-State Arbitration Under the Same Treaty’ (2014) 5 JIDS 199. 44 Industria Nacional de Alimentos, SA and Indalsa Perú, SA (formerly Empresas Lucchetti, SA and Lucchetti Perú, SA) v Republic of Peru, ICSID Case No ARB/03/4, Award (7 February 2005) paras 7–9. 45 Republic of Italy v Republic of Cuba, Interim Award (15 March 2005); Republic of Italy v Republic of Cuba, Final Award (15 January 2008). 46 Ecuador v United States (n 22). 47 Lucchetti v Peru (n 44) paras 7, 9. 48 Schreuer (n 43) 350–51. 49 Chevron Corporation and Texaco Petroleum Company v The Republic of Ecuador, UNCITRAL, PCA Case No 34877, Partial Award on the Merits (30 March 2010). 50 Ecuador v United States (n 22) paras 5, 40–49; Republic of Ecuador v United States of America, PCA Case No 2012-5, Statement of Defense (29 March 2012) 4. 51 Ecuador v United States (n 22) paras 207, 228. 52 On the issue of re-politicization in the Ecuador v United States case see: W Michael Reisman, Expert Opinion with Respect to Jurisdiction (24 April 2012) para 24 ‘Likewise, in order to induce foreign investment, host states consented to arbitration directly by investors generally without requiring exhaustion of local remedies. The consequence of this agreement was thus to depoliticize the process of resolving disputes. In the absence of the BIT arrangement, foreign investment disputes would once again be taken up by states.’ Ecuador v United States, Christian Tomuschat, Expert Opinion on the Construction of Article VII (24 April 2012) para 32: ‘The BIT aims to depoliticize investment disputes by pushing the home State of the investor back to the sidelines. Ecuador, by contrast, brings the contracting parties back to centre-stage.’ 53 Italy v Cuba, Interim Award (n 45); Italy v Cuba Final Award (n 45). On the case see Michele Potestà, ‘Republic of Italy v. Republic of Cuba’ (2012) 106 AJIL 341. 54 Italy v Cuba, Interim Award (n 45) paras 24–25. 55 Agreement between the Government of the Italian Republic and the Government of the Republic of Cuba concerning the Encouragement and Reciprocal Protection of Investments (signed 7 May 1993, entered into force 23 August 1995) (Italy–Cuba BIT) art 9(2) ‘Se una controversia non potesse essere risolta entro sei mesi a partire dalla data in cui è stata iniziata per iscritto essa potrà essere sottoposta a scelta dell’investitore: … b) Ad un Tribunale arbitrale secondo le disposizioni dei commi da 3 a 5 dell’Articolo 10.’ 56 ibid art 10(3): Regolamento delle Controversie tra le Parti Contraenti Italy/Cuba BIT 1993: ‘3. Il Tribunale Arbitrale verrà costituito nel modo seguente: entro due mesi dalla data di ricezione della richiesta di arbitrato, ogni Parte nominerà un membro del Tribunale. Questi due membri sceglieranno poi, quale Presidente, un cittadino di uno Stato terzo. Il Presidente sarà nominato entro tre mesi dalla data di nomina dei due membri predetti.’ 57 Italy v Cuba, Interim Award (n 45) para 47. 58 Italy v Cuba, Interim Award (n 45) paras 65, 67. 59 Italy v Cuba, Final Award (n 45) 103. 60 Italy v Cuba, Interim Award (n 45) para 46. 61 Article 27 of the ICSID Convention pursues two goals as the drafting history shows. On the one hand the host State shall be protected against multiple claims emanating in parallel from the home State and the investor and on the other hand it aims to depoliticize investment disputes: ‘As a corollary of the principle of allowing an investor direct and effective access to a foreign State without the intervention of his national State it was proposed—and this was an important innovation—that an investor’s national State would no longer be able to espouse a claim of its national. In this way it was sought to ensure that States would not be faced with having to deal with a multiplicity of claims and claimants. The Convention would therefore offer a means of settling directly, on the legal plane, investment disputes between the State and the foreign investor and insulate such disputes from the realm of politics and diplomacy.’ [Summary Record of Proceedings, Addis Ababa Consultative Meetings of Legal Experts, 16–20 December 1963, in History of the ICSID Convention (1968) vol II-1 242]. 62 ‘Article 27—Diplomatic Protection’ in Christoph Schreuer, Loretta Malintoppi, August Reinisch and Anthony Sinclair, The ICSID Convention: A Commentary (2nd edn, CUP 2009) 425, para 33. 63 ibid para 30. 64 On the double nature of these rights see Ursula Kriebaum, ‘The Nature of Investment Disciplines’ in Zachary Douglas, Joost Pauwelyn and Jorge E Vinuales (eds), The Foundations of International Investment Law, Bringing Theory into Practice (OUP 2014) 45, 49–50. In a similar vein speaking of investment treaties as creating rights for both investors and homes States, Roberts (n 43) 37. 65 The case Werner Schneider, acting in his capacity as insolvency administrator of Walter Bau AG (In Liquidation) v The Kingdom of Thailand (formerly Walter Bau AG (in liquidation) v The Kingdom of Thailand), UNCITRAL, Award (1 July 2009) paras 5.54, 5.63, 5.77, 5.78, 5.85, 6.15, 6.19. 15.1 offers an example for this type of diplomatic involvement, that happened before the investor initiated the investor-State arbitration. That case was not an ICSID but an UNCITRAL case and the Germany–Thailand BIT does not contain a clause similar to Article 27 ICSID Convention. 66 Schreuer, Malintoppi, Reinisch and Sinclair (n 62) para 6. 67 Italy v Cuba, Interim Award (n 45) para 65 ‘… L’absence dans l’Accord d’une disposition semblable à l’article 27 de la Convention de Washington de 1965 n’empêche pas l’application de ce principe par analogie.’ 68 Chittharanjan Felix Amerasinghe, Local Remedies in International Law (2nd edn, CUP 2004) 275. ‘… [i]t would be reasonable to infer that, once the procedures directly involving the investor are invoked, the treaty does not permit the resort to diplomatic protection directly with the involvement in arbitration of the investor’s national state. Otherwise, the settlement procedures provided for would duplicate rather than simplify the procedures for the settlement of disputes which would not be a logically consistent result.’ 69 Martins Paparinskis, ‘Investment Arbitration and the Law of Countermeasures’ (2008) 79 BYBIL 264, 281–87; Potestà (n 53) 346. 70 Joachim Pohl, Kekeletso Mashigo and Alexis Nohen, ‘Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey’ (2012) 2 OECD Working Papers on International Investment <http://dx.doi.org/10.1787/5k8xb71nf628-en> accessed 3 September 2017. 71 Here are some random examples: Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Sierra Leone for the Promotion and Protection of Investments (signed 13 January 2000, entered into force 20 November 2001) (UK–Sierra Leone BIT); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Slovenia for the Promotion and Protection of Investments (signed 3 July 1996, entered into force 27 March 1999) (UK–Slovenia BIT); and the Agreement between the Government of the Republic of Korea and the Government of the United Kingdom of Great Britain and Northern Ireland for the Promotion and Protection of Investments (signed and entered into force 4 March 1976) (UK–South Korea BIT) exclude any form of diplomatic protection but only after referral to arbitration. See eg art 8 (4) of the UK–Sierra Leone BIT: ‘Neither Contracting Party shall pursue through the diplomatic channel any dispute referred to the Centre unless: the Secretary-General of the Centre, or a conciliation commission or an arbitral tribunal constituted by it, decides that the dispute is not within the jurisdiction of the Centre; or the other Contracting Party should fail to abide by or to comply with any award rendered by an arbitral tribunal.’ The same provision is contained in art 10(2) of the UK–Slovenia BIT or art 8(2) of the UK–South Korea BIT. Another slightly different example for such a provision is art VII of the Treaty between the United States of America and the Republic of Turkey Concerning the Reciprocal Encouragement and Protection of Investments (signed 3 December 1985, entered into force 18 May 1990) (US-Turkey BIT): ‘ARTICLE VII The Parties shall seek in good faith and in the spirit of cooperation a rapid and equitable solution to any disputes between them concerning the interpretation or application of this treaty. … If such negotiations are unsuccessful, the dispute may be submitted, upon the request of either Party, to an arbitral tribunal for binding decision in accordance with the applicable rules of international law. … 7. This Article shall not be applicable to a dispute which has been submitted to and is still before the Centre pursuant to Article VI.’ A further variation can be found in Article 9(4) of the Agreement between the Hashemite Kingdom of Jordan and the Government of the Italian Republic on the Promotion and Protection of Investments (signed 21 July 1996, entered into force 17 January 2000): ‘4—Both Contracting Parties shall refrain from negotiating through diplomatic channels any matter relating to an arbitration procedure or judicial procedure underway until these procedures have been concluded, and one of the Contracting Parties has failed to comply with the ruling of the Center or the Court of Law within the period envisaged by the ruling,—or else within the period which can be determined on the basis of the international or domestic law provisions which can be applied to the case.’ Article 9(4) of the Italy–Armenia BIT (2003) contains a nearly identical provision. 72 On these clauses see: Ben Juratowitch, ‘The Relationship between Diplomatic Protection and Investment Treaties’ (2008) 23(1) ICSID Rev—FILJ 10, 16-22; Schreuer (n 62) paras 34–37. 73 Claire Provost and Matt Kennard, ‘The obscure legal system that lets corporations sue countries’, The Guardian (10 June 2015) <https://www.theguardian.com/business/2015/jun/10/obscure-legal-system-lets-corportations-sue-states-ttip-icsid> accessed 4 September 2017. 74 Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL Arbitration Rules) (2010) <https://www.italaw.com/sites/default/files/case-documents/italaw3293.pdf> accessed 6 September 2017). 75 1. Guaracachi America, Inc (USA) & 2. Rurelec plc (United Kingdom) v Plurinational State of Bolivia, UNCITRAL, PCA Case No 2011-17, Award (31 January 2014). 76 1. Guaracachi America, Inc (USA) & 2. Rurelec plc (United Kingdom) v Plurinational State of Bolivia, UNCITRAL, PCA Case No 2011-17, Respondents Memorial on Jurisdiction (17 September 2012). 77 1. Guaracachi America, Inc (USA) & 2. Rurelec plc (United Kingdom) v Plurinational State of Bolivia, UNCITRAL, PCA Case No 2011-17, Respondents Memorial on the Merits (15 October 2012). 78 Rowena Mason and Dean Nelson, ‘David Cameron intervenes for Cairn and Vodafone in India’, The Telegraph (19 February 2011) <http://www.telegraph.co.uk/finance/newsbysector/energy/8334832/David-Cameron-intervenes-for-Cairn-and-Vodafone-in-India.html> accessed 4 September 2017. 79 The UNCITRAL Arbitration Rules of 1976 (adopted 15 December 1976) are being applied in Cairn (n 80) https://www.italaw.com/sites/default/files/case-documents/italaw8841.pdf accessed 6 September 2017. Whether these or the revised version of 2010 (n 74) are being applied in Vodafone (n 83) is unknown. 80 Cairn Energy PLC and Cairn UK Holdings Limited v The Republic of India, UNCITRAL, PCA Case No 2016-7. 81 <https://www.italaw.com/sites/default/files/case-documents/italaw8775.pdf> accessed 5 September 2017. 82 Vodafone International Holdings BV v India, UNCITRAL PCA Case No 2016-35. 83 On the case see: Luke Eric Peterson, ‘President of the ICJ Nominates Chair for Vodafone v. India Arbitration – and then Rejects India’s Effort to Disqualify the Nominee’ IAReporter (2 November 2016) https://www.iareporter.com/articles/president-of-icj-nominates-chair-for-vodafone-v-india-arbitration-and-then-rejects-indias-effort-to-disqualify-the-nominee/ accessed 4 September 2017. 84 Luke Eric Peterson, ‘As Repsol files arbitration against Argentina, row erupts over alleged “diplomatic protection” by Spain and the EU’ IAReporter (5 December 2012) <https://www.iareporter.com/articles/as-repsol-files-arbitration-against-argentina-row-erupts-over-alleged-diplomatic-protection-by-spain-and-the-eu/> accessed 4 September 2017. 85 Repsol, SA and Repsol Butano, SA v Argentine Republic, ICSID Case No ARB/12/38. 86 ICSID, ‘Case Details: Repsol, SA and Repsol Butano, SA v Argentine Republic (ICSID Case No ARB/12/38)’<https://icsid.worldbank.org/en/Pages/cases/casedetail.aspx?CaseNo=ARB/12/38> accessed 5 September 2017. 87 The OECD Declaration and Decisions on International Investment and Multinational Enterprises 2012 <https://www.oecd.org/investment/investment-policy/ConsolidatedDeclarationTexts.pdf> accessed 2 November 2017. 88 So far only few investment protection treaties contain a rule analogous to Article 27 of the ICSID Convention. See p 12ff. © The Author(s) 2018. Published by Oxford University Press on behalf of ICSID. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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ICSID Review: Foreign Investment Law JournalOxford University Press

Published: Apr 23, 2018

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