Jurisdiction in Investment Treaty Arbitration

Author: Emmanuel Gaillard; Yas Banifatemi
Publisher: Juris Publishing
ISBN: 9781933899941
Published In: November 2013
Format: Paperback
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

Out of stock

Description
Contents
Author

Details

About the IAI Series on International Arbitration:
The IAI (International Arbitration Institute) Series on International Arbitration is a publication focusing on topical questions of international arbitration discussed at conferences organized by the IAI.

About the IAI:
The International Arbitration Institute (IAI) is an organization created under the auspices of the Comité Français de l'Arbitrage (CFA) with the purpose of fostering exchanges in the field of international arbitration. It currently has over 600 members on a worldwide basis. Its activities include the organization of international conferences, as well as the publication of a Directory of Members, which is the most highly regarded freely accessible source of information on international arbitration specialists.

About the Book:
This book is based on the Conference organized by the IAI in Paris on October 14, 2010 on Jurisdiction in Treaty Investment Arbitration. At this Conference, distinguished speakers active in the area of investment treaty arbitration shared their experience and perspective on the three grounds of challenge to the jurisdiction of arbitral tribunals in investment treaty arbitration.

The first part of the volume is devoted to Jurisdiction ratione materiae, i.e., the notion of ‘investment’. What constitutes an investment? Is there an economic definition of an investment? Is there a legal definition of an investment? What requirements are found in investment treaties? The various aspects of this crucial concept are covered, respectively, by an economist (Vicky Pryce), by international arbitration specialists, be they academics, arbitrators or practitioners (Pierre-Marie Dupuy, Judge Stephen M. Schwebel and Stanimir Alexandrov, Michael Polkinghorne and Peter Turner), and by State representatives experienced in the negotiation and drafting of investment treaties (Christophe Douaire de Bondy for Canada, Roberto Echandi Gurdián for Costa Rica and Jae-Hoon Kim for Korea).

The second part focuses on Jurisdiction ratione materiae, namely the definition of the protected investor. Doak Bishop reports on whether there is a standard definition of an ‘investor’ in investment treaties; Yas Banifatemi discusses the issue of control under denial of benefits clauses, and Professor Geneviève Bastid-Burdeau analyses whether there are specific standards of jurisdiction when defining the defendant State.

The third and last part of the volume is dedicated to Jurisdiction ratione temporis: what is covered in time by the relevant treaty? Veijo Heiskanen examines whether there is a distinction between jurisdiction ratione temporis and substantive protection ratione temporis. Zachary Douglas then focuses on the determination of the critical date in investment treaty arbitration.

The volume also includes the proceedings of the animated debates that followed each session of the Conference.

This conference was the first to gather together economists, academics, arbitrators, practitioners and State negotiators in relation to investment treaty arbitration. This volume is required reading for all those involved in the study and practice of investment treaty arbitration.

INTRODUCTION
Emmanuel Gaillard

PART I
JURISDICTION RATIONE MATERIAE
THE NOTION OF INVESTMENT

Is there an economic definition of an 'investment'?
Vicky Pryce

Is there a legal definition of an 'investment'?
Stanimir Alexandrov

The so-called requirement of a contribution to the economic development of the host State
Pierre-Marie Dupuy

Does the consent of the contracting Parties govern the requirement of an 'investment' as specified in Article 25 of the ICSID Convention?
Stephen M. Schwebel

The so-called requirement of the legality of investments
Michael Pokinghorne

The so-called 'nationality' of investments
Peter Turner

Determining the States' intention when negotiating and entering into investment treaties: Canada
Christophe Douaire de Bondy

Determining the States' intention when negotiating and entering into investment treaties: Costa Rica
Roberto Echandi Gurdián

Determining the States' intention when negotiating and entering into investment treaties: South Korea
Jae-Hoon Kim

Discussion

PART II
JURISDICTION RATIONE PERSONAE

Is there a standard definition of an 'investor' in investment treaties?
Doak Bishop

Taking into account control under denial of benefits clauses
Yas Banifatemi

Defining the defendant State: are there specific standards of jurisdiction?
Geneviève Bastid-Burdeau

Discussion

PART III
JURISDICTIONA RATIONE TEMPORIS

Is there a distinction between jurisdiction ratione temporis and substantive protection ratione temporis?
Veijo Heiskanen

Determining the critical date
Zachary Douglas

ANNEXES

ANNEX 1
ICSID Case No. ARB/00/4, Salini Costruttori S.p.A. v. Kingdom of Morocco, Decision on Jurisdiction, 16 July 2001

ANNEX 2
ICSID Case No. ARB/06/5, Phoenix Action Ltd. v. The Czech Republic, Award, 15 April 2009

ANNEX 3
ICSID Case No. ARB/05/10, Malaysian Historical Salvors Sdn Bhd v. The Government of Malaysia, Decision on the Application for Annulment, 16 April 2009

ANNEX 4
ICSID Case No. ARB/07/20, Saba Fakes v. Republic of Turkey, Award, 14 July 2010

ANNEX 5
List of Participants to the IAI Conference Held in Paris on 14 October 2010

ANNEX 6
Table of Authorities

ANNEX 7
Table of Abbreviations

About the General Editor:
Professor Emmanuel Gaillard is acknowledged as one of the world leading experts on international arbitration. He has acted as arbitrator, counsel and expert in hundreds of international arbitrations. He teaches International Arbitration and Private International Law at the University of Paris XII, and heads Shearman & Sterling’s International Arbitration practice.

Professor Gaillard has written extensively on all aspects of international arbitration law, in English and in French. He is in particular a co-author of Fouchard Gaillard Goldman On International Arbitration, and the author of Legal Theory of International Arbitration, the first published essay on the topic.

About the Editor:
Yas Banifatemi is a partner in Shearman & Sterling’s International Arbitration Group and leads the firm’s Public International Law Practice. She holds a PhD in Public International Law from Université Panthéon-Assas (Paris II), as well as an LL.M. from Harvard Law School. She teaches International Investment Law at Université Panthéon-Sorbonne (Paris I). She has authored numerous articles and regularly appears as speaker on issues of investment arbitration and international law.