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Contents
- Preliminary Material
- Main Text
- 1 Introduction
- Part I The Consensual Nature of Arbitration
- Preliminary Material
- 2 The Evolution of Arbitration and its Consensual Nature
- Preliminary Material
- 2.01
- 2.02
- A The Classical Characterization of Arbitration
- B The Historical Evolution of the Concept and the Consensual Nature of Arbitration
- C The Framework of Instruments Where Acceptance of the Use of Arbitration as a Dispute Resolution Mechanism is Embedded
- 3 Capacity, Restrictions, and Limitations to Consent to Arbitration
- Preliminary Material
- 3.01
- 3.02
- A Capacity to Consent to Arbitration
- B Restrictions on the States’/States Agencies’ Entitlement to Consent to Arbitration
- C Limitation of Parties’ Freedom to Consent to Arbitration: the Issue of Arbitrability
- 3.36
- 1 Dividing line between public and private justice
- 2 The different conceptions of arbitrability
- 3 Expansion of parties’ freedom to consent to arbitration or the dwindling importance of inarbitrability
- 3.59
- 3.60
- 3.1 Differentiating between the domestic context and the needs of international commerce
- 3.2 Ruling out the restrictive association of public policy and arbitrability
- 3.3 Extending the scope beyond contract and to mixed and public rights
- 3.4 Distinguishing the significance of States’ acts in the case of investment contracts
- 4 Inarbitrability examined in light of the consensual nature of arbitration
- 5 Arbitrability and public international law arbitration
- 4 The Juridical Nature of Arbitration with Particular Regard to its Consensual Nature
- Preliminary Material
- 4.01
- 4.02
- 4.03
- 4.04
- 4.05
- 4.06
- A Theories Which Reflect the Contraposition Between State Sphere and Private Sphere
- B Theories Which Reflect the Growing Acceptance to use Arbitration as a Dispute Resolution Mechanism
- C The New Field of Investment Arbitration: Departing From Contract for Explaining Consent to Arbitration?
- 4.33
- 1 The issue: consent is not expressed in an arbitration agreement in the traditional sense
- 2 Views clinging to the juridical concept of contract for explaining consent to investment arbitration
- 3 View relying on the juridical concept of ‘stipulation in favour of a third party’, but rejecting the ‘offer–acceptance’ scheme between host State and foreign investor
- 4 Views departing from the juridical concept of contract for explaining investment arbitration
- 5 Instruments where both consent to use arbitration as a dispute resolution mechanism and consent to arbitration are expressed
- 5 The Multiple Facets of Consent to Arbitration and the Determination of Jurisdiction
- Preliminary Material
- 5.01
- 5.02
- 5.03
- 5.04
- 5.05
- 5.06
- A Consensual as a Criterion of Arbitration’s Qualification
- B Expression of Consent to Arbitration
- C Consent to Arbitration as Reaching of Mutual Consent, ie the Substantive Side of the Arbitration Agreement
- D Proposal for a Classification of Types of Consent
- E Determination of Jurisdiction, With Particular Regard to Issues Concerning Parties’ Consent
- 5.82
- 5.83
- 1 Competence–competence
- 2 Autonomy of the arbitration agreement and the principle of separability
- 5.88
- 5.89 Material separability
- 5.90 Recognition of the doctrine of separability
- 5.91 Separability as a means to strengthen and protect the jurisdiction of arbitrators
- The effect of separability
- 5.96 The normal situation: consent to the main contract typically constitutes consent to the arbitration agreement
- Legal separability or towards consensualism
- 5.103 Autonomy and independence of the arbitration agreement in investment arbitration
- Part II Consent in commercial arbitration
- Preliminary Material
- 6 The Valid Reaching of Mutual Consent to Arbitration
- Preliminary Material
- 6.01
- 6.02
- 6.03
- A The Law Governing Arbitration Agreements
- B The Form Requirement for Arbitration Agreements in Relation to Consent to Arbitration
- 6.22
- 6.23
- 1 The justification for a written form requirement
- 2 Differences in the requirement
- 3 Relationship between formal requirements and consent
- 4 Consent in relation to the requirements of ‘signature’ or ‘exchange of documents’
- 5 Exclusion of the ‘writing’ requirement from the determination of the scope of consent to arbitration
- C The Substantive Elements of Consent to Arbitration
- 7 Scope and Interpretation of Consent to Arbitration
- 8 Consent to Arbitration with a Perceived Reduced Consensual Character
- Preliminary Material
- 8.01
- 8.02
- 8.03
- 8.04
- A Unilateral Arbitration Agreements
- B Arbitration Clauses Incorporated by Reference
- C Arbitration Clauses in Articles of Association
- 9 Extension of Consent to Arbitration
- Preliminary Material
- 9.01
- 9.02
- A Extension of Consent to Arbitration by Application of General Principles of Contract Law or Corporate Law
- B Extension of Consent to Arbitration to Non-Signatories
- 9.30
- 9.31
- 9.32
- 1 The ‘group of companies’ doctrine
- 2 The doctrine of arbitral estoppel
- 3 Extension on grounds unrelated to consent
- 4 Multiple contracts and successive contracts
- 10 Consent to Arbitration Related to Procedural Mechanisms
- Preliminary Material
- 10.01
- 10.02
- A Joinder and Intervention of Third Parties in Arbitrations
- B Consolidation of Arbitrations
- 10.24
- 10.25
- 1 Consolidation of arbitrations between different parties
- 2 Consolidation of arbitrations between the same parties
- 3 Consolidation of arbitrations and court proceedings into a single arbitration
- 4 Practical consolidation
- C Problems of Enforcing Awards in Multiparty Arbitrations
- Part III Consent in Investment Arbitration
- Preliminary Material
- 11 Expression and Reaching of Consent to Arbitration
- Preliminary Material
- 11.01
- 11.02
- 11.03
- A The Formal Requirement of Consent to Arbitration
- B Conditions Prior to Consent to Arbitration
- C Ways of Expressing and Reaching Consent to Arbitration
- 11.28
- 11.29
- 11.30
- 11.31
- 1 Consent through direct agreement between the parties
- 2 Consent through host State (national) investment legislation
- 3 Consent through investment treaties
- 11.44
- 11.45
- 3.1 Bilateral investment treaties (BITs)
- 11.46
- 11.47
- 11.48 Offer by the host State
- Offer to submit to ICSID’s jurisdiction
- Offer of several alternatives of arbitration
- 11.54 BITs provisions not constituting actual binding offers
- BITs referring to future consent
- 11.57 BITs referring to arbitration without giving consent
- 11.58 Acceptance by the foreign investor
- Acceptance by instituting proceedings
- Acceptance of offer prior to instituting proceedings
- BITs ignoring the foreign investor’s consent
- 3.2 Consent through multilateral investment treaties
- 11.65
- 11.66 The NAFTA
- Offer by the host State
- Acceptance by the foreign investor
- 11.71 Reaching of mutual consent to arbitration
- Choice of the ICSID or the UNCITRAL Arbitration Rules by the foreign investor
- 11.75 The Energy Charter Treaty
- Offer by the host State
- Acceptance by the foreign investor
- 11.81 The rationale behind Article 26 of the ECT
- D Consent to Arbitration From a Time Perspective
- 11.82
- 11.83
- 11.84
- 1 Expression of consent from a time perspective
- 2 Reaching mutual consent from a time perspective
- 11.98
- 2.1 Time of reaching mutual consent
- 2.2 Relevance of the time of reaching mutual consent
- 2.3 Irrevocability of consent
- 11.102
- 11.103
- 11.104
- Irrevocability after perfection of consent
- 11.109 The binding and irrevocable nature of perfected consent as manifestation of ‘ pacta sunt servanda ’
- Insulation process through the acceptance by the investor of legislative or treaty-based offers?
- 11.113 Prohibition of indirect withdrawal/revocation of consent
- 11.114 Notification in accordance to Article 25(4) of the ICSID Convention
- Denunciation of the ICSID Convention
- Withdrawal of investment authorization
- Withdrawal/revocation of the host State’s consent to arbitration contained in national investment legislation
- Termination of investment treaties containing the host State’s consent to arbitration
- The importance of the investment: three contractual proposals
- 12 The Applicable Law and Interpretation of Consent
- Preliminary Material
- 12.01
- 12.02
- 12.03
- 12.04
- A Applicable Law and Interpretation of Consent to Arbitration: International or National Law?
- 12.05
- 12.06
- 12.07
- 12.08
- 1 Direct arbitration agreements in investment contracts
- 2 National investment laws
- 3 Investment treaties
- 12.21
- 12.22
- 3.1 The distinctiveness of investment treaty arbitration: the host State is bound by two agreements
- 3.2 Objective v subjective criteria when interpreting
- 3.3 Standing offer of the host State: treaty interpretation in accordance to the Vienna Convention on the Law of Treaties
- 3.4 The law applicable to the host State–foreign investor relationship
- 4 The importance of the object of interpretation, ie the content of mutual consent reached with the arbitration agreement
- 5 Overcoming the public international law/private international law dichotomy?
- B Inclinations in Interpreting?
- C Expansive Interpretation in Case of Successive Legal Instruments
- D Principles of Interpretation
- E Umbrella Clauses: Expansion of Host State’s Consent to Arbitration by Elevating Contractual Disputes to Treaty Disputes
- 12.77
- 12.78
- 12.79
- 12.80
- 1 The concept of ‘umbrella clause’
- 2 Emergence of umbrella clauses in modern investment treaties and in investment arbitration case law
- 3 Differences among umbrella clauses
- 4 The main factor affecting the expansion of the host State’s consent: the interpretation of umbrella clauses
- 12.93
- 4.1 The differing SGS cases
- 4.2 Interpretation approaches of umbrella clauses
- 12.101
- 12.102 Cases in which tribunals adopted a rather restrictive or balanced way of interpretation
- 12.103 Rejection of an interpretation ‘in favour of the foreign investor’
- 12.104 Distinction between ‘State as a merchant’/‘State as a sovereign’
- 12.105 Differentiation based on the intensity of the governmental intervention
- 12.106 Cases in which tribunals adopted a rather expansive method of interpretation
- 12.107 Rejection of the differentiation of types of investment agreements
- 12.108 Ordinary meaning
- Principle of effectiveness
- 13 Consent and Jurisdiction
- Preliminary Material
- 13.01
- 13.02
- A Consent as the Subjective Side of Jurisdiction
- B Consent and Jurisdiction Ratione Materiae
- 13.10
- 1 The host State’s measure: the trigger of the dispute
- 2 The legal dispute
- 3 The direct nexus between the legal dispute and the investment (‘arising directly out’)
- 4 The investment
- 13.21
- 13.22
- 13.23
- 13.24
- 4.1 ICSID Convention as outer limit for parties’ consent
- 4.2 The importance of State parties’ consent to arbitration (offers) in defining ‘investment’
- 4.3 The growing importance of the State parties’ will in defining ‘investment’
- 4.4 Expansion of consent to arbitration in investment treaty case law because of a broad definition/interpretation of the concept of ‘investment’ in the BITs
- C Consent and Jurisdiction Ratione Personae
- 13.59
- 1 The host State
- 2 The foreign investor
- 13.61
- 2.1 The foreign investor’s nationality
- 2.2 Expansion of consent to arbitration in relation to jurisdiction ratione personae: foreign control of legal entities with the nationality of the host State
- 13.70
- 13.71
- 13.72 Agreement on foreign nationality
- By express agreement
- By provisions in national investment legislations or investment treaties
- 13.80 By implied agreement
- No correlation between consent to arbitration and agreement on foreign nationality
- 13.84 The concept of ‘control’
- Circumstances leading to control/test for control
- Legal potential to control v actual exercise of control
- Direct/indirect control
- The relevant party for the control
- The concept of ‘foreignness’ related to control
- 2.3 The limits of ‘nationality planning’ in relation to State’s consent to arbitration
- D Consent and Jurisdiction Ratione Temporis
- 13.109
- 13.110
- 13.111
- 1 The relevant date to determine jurisdiction
- 2 Entering into force of the investment treaty’s obligations forming the basis for the foreign investor’s claim
- 3 Host State’s consent to arbitration (offer) in relation to the time when the investment is made/the dispute has arisen
- 4 Relation between host State’s consent to arbitration (offer) and entry into force of substantive investment treaty’s obligations
- 13.134
- 4.1 Different inter-temporal rules for jurisdiction and substantive investment treaty’s obligations
- 4.2 The principle: applicability of the substantive law in force when facts occurred
- 4.3 Cases where the scope of consent to arbitration is limited to investment treaty’s breach claims
- 4.4 Acts of continuing character: taking into account facts occurring prior to the tribunal’s jurisdiction ratione personae
- 5 Time limit for claiming, ie temporally limited host State’s consent to arbitration (offer)
- E Consent With Regard to Procedural Mechanisms: Provisions Aimed at Avoiding the Duplication of Proceedings and Consolidation Provisions
- 13.146
- 13.147
- 13.148
- 1 In ICSID arbitrations
- 2 Investment treaties
- 13.152
- 2.1 The consolidation effect of provisions aimed at avoiding the duplication of proceedings
- 2.2 Consolidation
- 13.158
- 13.159 The NAFTA and consolidation
- 13.160 Some essential features of NAFTA consolidation
- The condition for consolidation: multiple claims arising from a ‘same State measure’
- 13.163 The rationale behind consolidation
- Consolidation order upon request of one of the parties
- The consolidation tribunal’s discretionary power to order consolidation
- Is NAFTA consolidation ultimately based upon consent?
- 13.171 Model BITs and free trade agreements with consolidation provisions
- 13.172 The NAFTA as example
- The issue of parties’ consent
- 3 Consolidation in commercial and investment arbitration: different approaches with regard to parties’ consent
- 14 The Scope of Consent In Investment Arbitration
- Preliminary Material
- 14.01
- A The Scope of Consent and its Limitations
- B Counterclaims
- C Consent and Most-Favoured-Nation Clauses
- 14.25
- 14.26
- 1 The issue in the relationship between MFN clauses and dispute settlements provisions in investment treaties
- 2 Differentiation in the application of MFN clauses depending on how consent to arbitration is affected
- 14.36
- 2.1 Procedural obstacles to the institution of arbitration proceedings are at stake
- 2.2 Scope of the host State’s consent to arbitration is at stake
- 14.46
- Create jurisdiction where it does not exist
- Extension of the host State’s consent to arbitration to contract claims
- Enlarging the scope of host State’s consent to arbitration to other categories of claims
- Extension of the host State’s consent to arbitration because of retroactive application of the BIT
- 2.3 The rationale behind the differentiation
- 2.4 Cases departing from the rationale of the differentiation
- 3 MFN clauses with regard to enlargement of the scope of the host State’s consent to arbitration
- D Delimitation From State to State Arbitration Provided for in Investment Treaties
- 15 Conclusion
- Preliminary Material
- 15.01
- 15.02
- 15.03
- A The Different Perspectives of Consent
- B The Consensual and Contractual Nature of Arbitration
- Further Material
