CEU Electronic Theses and Dissertations, 2008
| Author | Aliyev, Elnur |
|---|---|
| Title | Consent to Jurisdiction of the ICSID |
| Summary | The ICSID mechanism is voluntary and the disputes can be submitted only by consent of both the host state and the investor, which has to be in writing. It is not necessary for a state to express its consent on the level of government. The consent may be given also by a constituent subdivision or agency of the state. Unless the host state and the investor agree otherwise, consent to arbitration under the Convention is deemed to be consent to the exclusion of any other remedy. The parties may also agree on certain conditions concerning their consent to arbitration, particularly on exhaustion of local remedies or attempts to amicable settlement. Consent under the ICSID Convention is irrevocable an none of the parties may withdraw is consent unilaterally. If the consent is expressed in an arbitration clause which forms a part of an investment agreement, it may survive the invalidity or termination of the agreement in light of the separability doctrine. The changes in the legislation and termination of the BIT in which the consent of the state was provided would not affect only those investors who had accepted the offer and expressed its consent. It is not required for consent to be in a single instrument. It may be established in different forms: through the investment agreements between the host state and the investor, through the national legislation of the host state and through the international (bilateral or multilateral) treaties of the host states. Although the more common and traditional way of expressing consent was through the direct agreements between the parties, nowadays the situation is different and majority of the cases that have been submitted to the ICSID is based on consent provided in BITs. In the BIT and in the investment agreement disputes may be subjected to different forums. In such a case, the claims arising from the contract and the claims arising from the treaty have to be distinguished. Also, the consent provided in one BIT may be extended to the other BIT through the most-favored-nation clause if such was the intention of the contracting states. Along with more than 1000 BITs, provisions referring to the ICSID have been inserted also to 4 multilateral treaties: the NAFTA, the Colonia Investment Protocol to MERCOSUR the Cartagena Free Trade Agreement and the Energy Charter Treaty. Expression of consent in BITs and multilateral treaties opened a door to ICSID for a large number of investors. |
| Supervisor | Varady, Tibor |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2008/aliyev_elnur.pdf |
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