Arbitration is by far the most frequently used method to settle investment disputes. This article focuses exclusively on mixed arbitration, that is, arbitration between a host State and a foreign investor. The three techniques to give consent to arbitration are discussed, namely, consent by direct agreement, consent through host state legislation and consent through bilateral investment treaties. A number of multilateral treaties also offer consent to arbitration. This article proceeds further to examine temporal issues of consent and outline the expressions of consent to arbitration that have led to disputes in a number of cases. Tribunals applying these expressions of consent have had to grapple with their proper interpretation. This article concludes with the need to improve the harmonization of tribunal practice.
The settlement of disputes between States is generally not regulated by municipal law and municipal courts but by international law regulated by treaty. Because States are not subject to the jurisdiction of international tribunals absent express consent, an important function of dispute settlement clauses in treaties is to indicate whether such consent is granted and, if so, with respect to which disputes before which tribunals. This chapter discusses the following: the obligation of states to settle disputes peacefully; the duty to arbitrate or adjudicate disputes under the United Nations Convention on the Law of the Sea (LOSC); choice of forum for compulsory settlement of LOSC disputes; nature of dispute; procedural and substantive limitations on jurisdiction under Section 2 of Part XV of the LOSC; and institutional constraints on the exercise of jurisdiction.
Cornelis G. Roelofsen
This chapter presents an account of the role of arbitration and adjudication in international relations. It starts by looking at German/Swiss publicist Otfried Nippold, the author of a book on the prospects of arbitration, published at the eve of the second Hague Peace Conference. Then, it turns to the German/Dutch dispute of 1912–14 regarding the sovereignty over the Ems, an affair that illustrates the predicament inherent in the position of a legal adviser. The chapter attempts to deal with high-minded theory and public statements of governments as well as with the pedestrian tale of international adjudication as considered, practised, and developed by lawyers and diplomats. The discussion ends in 1945, when new institutions, the UN, and the International Court of Justice replaced those created at Versailles. A global order replaced an essentially European dispensation.