State's responsibility in ICSID arbitration practice

• Autores: Marvin Dertliu
• Directores de la Tesis: Carlos Javier Moreiro González (dir. tes.)
• Lectura: En la Universidad Carlos III de Madrid ( España ) en 2023
• Idioma: inglés
• Tribunal Calificador de la Tesis: Carlos R. Fernández Liesa (presid.), Yolanda Gamarra Chopo (secret.), Elena Carolina Díaz Galán (voc.)
• Programa de doctorado: Programa de Doctorado en Derecho por la Universidad Carlos III de Madrid
• Materias:
  • Ciencias económicas
    • Economía internacional
      • Inversión exterior
• Enlaces
  • Tesis en acceso abierto en: e-Archivo
• Resumen

  • The present research studies the responsibility of the State in the practice of the International Center for the Settlement of Investment Disputes between States and nationals of the other States, under the Washington Convention of 1965. The survey starts for the very beginning of the activities of the Center and its purposes as emerged in the drafting of the Washington Convention, through preparatory works: as a body within the framework of the International Bank for Reconstruction and Development, ICSID should serve as a specialized body for arbitration in ISDS disputes among investors and host States that had as a reason a breach of obligations regarding an investment made by the formers in the territory of the latter. The protection under ICSID was far more relevant than what was granted by other concurrent international fora: ICSID jurisdiction was mandatory, inasmuch that the fail from one party to participate to the arbitration, was overcame by the mechanisms of automatism settled thereto, in such way that unwillingness to participate did not hinder nor impede the valid establishment of a Tribunal and its rendering of a final award. On the other hand, ICSID awards enjoyed a special status of recognition and enforcement and were executable in any member State where the loosing party had assets to attack in case of unwillingness to perform the obligations arising from the condemnation. Investments to enjoy such protection should bring some specific features: it must be investments carrying on a consistent project in the host State, of medium ¿ long durability, and implying a substantial contribution to the development of the local economy. These very basics of the ICSID arbitration, were incorporated in the criteria of its jurisdiction in order to prevent, since the beginning, claims running outside the competence of the Center. The first chapter deals precisely with the matters of jurisdiction. The chapter illustrates the criteria faced in art. 25 of the ICSID Conventions and deeps with the requirements in terms of subjective requirements for the investor and the respondent to be met, and the objective element of the investment breach sought for relief. Among the subjective requirements, differences are found between claimant and respondent. Claimant shall be a particular, national of one of the States parties to the convention. Such State shall not necessarily entered in an investment treaty with the host State: such aspects is related with the consent to arbitration of the latter, but such consent shall also be conferred through unilateral declaration or incorporated in a contract vis-à-vis to the investor, on the sole condition it shall be expressed in written. As per the claimant, ICSID Tribunals embody a wide criterion of legitimacy: investor shall be considered also the controlling entity of a locally based company, and also the indirect controller of the company performing the investment if the latter is localized in a State outside the ICSID membership, under the condition that the last controller had the nationality of such ultimate member State. Also the fact that claimant is a State owned entity, is not seen as transforming the claim from an ISDS to a State ¿ to ¿ State arbitration outside ICSID jurisdiction: in those cases a claimant orientated approach prevails, under the condition that the private entity under State control does not perform functions and duties expression to public powers, which are able to transform it into an agent of the home State pursuant to articles of the UN -ILC Draft Articles on State responsibility. Claimant may exceptionally be even a company of the nationality of the host State. Convention therein takes advantage from the common experience of foreigners to incorporate a local company to carry out the operations at stake but requires in that case the consent of the host State to treat the local company as a foreigner because of foreign control.

    On the other hand, respondent always shall be a State. Agencies or subdivisions may be sued only upon due authorization of the State itself. Other and radically different position is the suitability of the State as a consequence of acts realized by internal agencies or subdivisions. In those cases Tribunals analysis focuses to the attributability of such conducts to the State itself in order to allow its passive locus standi on the claim.

    Once proceeding are put in place, the core element of arbitration is the assessment of the State¿s responsibility. The third chapter deals precisely with the criterion ruling such responsibility elaborated through customary international law and investment treaties. A detailed analysis is pursued through ICSID Tribunal jurisprudence in order to assess the meaning and extent of investment clauses most commonly used in modern international investment law. A detailed attention is devoted in the highly debated differentiation between contract claims and treaty claims, umbrella clause and the fair and equitable treatment standard.

    Extensive use is made of the jurisprudence of the Center. The research had collected all accessible judgement from the very foundations of ICSID to the 2020.

    The aim was to build a consistent approach to the theory of the responsibility of the State followed by the ICSID Tribunals, and to compare it with other system of cooperation and integration in economic fields namely with the EU. Then a common assessment is addressed to the approach followed by the two bodies and it is found that approach is quite similar, notwithstanding the differences of scope and context.

    Ultimately a global assessment of the international investment law arbitration as a means to foster economic integration besides other instruments of international law.