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Part III Consent in Investment Arbitration, 12 The Applicable Law and Interpretation of Consent »

From: Consent in International Arbitration
Andrea Marco Steingruber
12.01 This chapter examines the applicable law and the interpretation of consent to arbitration. Arbitral tribunals constituted to resolve transnational disputes are creatures of consent.1 This makes the question of consent’s interpretation and the closely related issue of the applicable law to consent so important. However, contrary to commercial arbitration, disputes on jurisdiction in investment arbitration are often not about interpreting an arbitration agreement in the classical sense between the parties, but rather about interpreting statutes, treaties, and...

Bibliography »

From: Consent in International Arbitration
Andrea Marco Steingruber

Part I The Consensual Nature of Arbitration, 3 Capacity, Restrictions, and Limitations to Consent to Arbitration »

From: Consent in International Arbitration
Andrea Marco Steingruber
3.01 This chapter examines the capacity and the restrictions and limitations to consent to arbitration. Party autonomy, with respect to arbitration, is not unlimited. Arbitration agreements are contracts, and the parties are required to have the capacity to enter them. However, the distinctiveness of arbitration agreements is that they are contracts which also have a jurisdictional character. Here the capacity to act as a party in arbitral proceedings comes into play. How far can States themselves enter into arbitration agreements, ie enter contracts which oust...

Part III Consent in Investment Arbitration, 15 Conclusion »

From: Consent in International Arbitration
Andrea Marco Steingruber
15.01 Arbitration is considered to be a consensual dispute resolution mechanism. Party autonomy is fundamental for the existence of arbitration1 and is the primary source of the arbitration jurisdiction and the procedure. However, while the classical characterization of arbitration is still influenced by commercial arbitration,2 arbitration has evolved.3 15.02 With the growing acceptance of arbitration as a dispute resolution mechanism and its use in areas other than the traditional one of commercial arbitration, the consensual character of arbitration has been...

Part III Consent in Investment Arbitration, 13 Consent and Jurisdiction »

From: Consent in International Arbitration
Andrea Marco Steingruber
13.01 This chapter discusses consent to arbitration related to jurisdiction. The chapter begins by indicating that consent is the subjective side of jurisdiction (Section A). However, in investment arbitration consent alone is not sufficient to establish jurisdiction, but the jurisdictional requirements have to be fulfilled. The chapter therefore examines consent in relation to the jurisdictional requirements ratione materiae (Section B), ratione personae (Section C), and ratione temporis (Section D). 13.02 The chapter further treats consent with regard to...

Consent in International Arbitration »

Andrea Marco Steingruber

Part II Consent in commercial arbitration, 10 Consent to Arbitration Related to Procedural Mechanisms »

From: Consent in International Arbitration
Andrea Marco Steingruber
10.01 This chapter examines consent to arbitration related to procedural mechanisms. Consolidation and joinder/intervention in international arbitration have generally been possible only where the parties have unanimously agreed to such a result directly in their arbitration agreements, or indirectly by adopting arbitration rules which provide for consolidation and/or joinder/intervention of third parties.1 Where the parties have not unanimously consented, national laws generally do not permit consolidation or joinder/intervention, as this would go against the...

Part II Consent in commercial arbitration, 8 Consent to Arbitration with a Perceived Reduced Consensual Character »

From: Consent in International Arbitration
Andrea Marco Steingruber
8.01 This chapter examines situations where consent to arbitration has a perceived reduced consensual character. The techniques used to conclude arbitration agreements have evolved along with the techniques of concluding contracts: often the terms of contracts are not negotiated, but decided by one of the parties; the same happens with arbitration agreements.1 8.02 The chapter first discusses unilateral arbitration clauses (Section A). Unilateral arbitration clauses are often concluded because one party has a superior bargaining power. What is at stake in such...

Contents »

From: Consent in International Arbitration
Andrea Marco Steingruber

Part I The Consensual Nature of Arbitration, 2 The Evolution of Arbitration and its Consensual Nature »

From: Consent in International Arbitration
Andrea Marco Steingruber
2.01 This chapter describes the evolution of arbitration and its consensual nature. Consent is the controlling factor of jurisdiction in international arbitration. Consent not only establishes jurisdiction, but it also determines its extent. Therefore, not surprisingly, the consensual nature has been seen as one of the distinctive features of arbitration. However, with the growing acceptance of arbitration as a dispute resolution mechanism the concept and the consensual nature of arbitration have evolved over time. Nowadays the acceptance of the use of arbitration...

Part III Consent in Investment Arbitration, 11 Expression and Reaching of Consent to Arbitration »

From: Consent in International Arbitration
Andrea Marco Steingruber
11.01 This chapter examines how the host State and the foreign investor express their consent to arbitration and how mutual consent to arbitration is reached. The chapter begins by indicating that formal requirements also have to be fulfilled in investment arbitration (Section A). The chapter further discusses the conditions prior to consent to arbitration, ie fork in the road provisions, the waiver of local remedies, and the amicable negotiation period requirement (Section B). 11.02 The main part of the chapter illustrates the ways in which the foreign investors...

Part II Consent in commercial arbitration, 9 Extension of Consent to Arbitration »

From: Consent in International Arbitration
Andrea Marco Steingruber
9.01 This chapter gives an overview of the issue of extension of consent to arbitration. The widely used concept of extension is in some ways a misleading concept, because decisions accepting the substitution of one party for another or the addition of a non-signatory party to the arbitration proceedings1 are regularly based on consent.2 9.02 The chapter first discusses the extension of consent to arbitration by application of general principles of contract law or corporate law (Section A). Later the chapter considers extension of consent to arbitration to...

General Editor’s Preface »

From: Consent in International Arbitration
Andrea Marco Steingruber

Index »

From: Consent in International Arbitration
Andrea Marco Steingruber

1 Introduction »

From: Consent in International Arbitration
Andrea Marco Steingruber
1.01 Consent is fundamental for international arbitration in both main fields where this dispute resolution method finds application: commercial arbitration and investment arbitration. Yet in the last few years there has been an increasing discomfort with this deep rooted assumption. Indeed, consent is a complex phenomenon; and, in arbitration its jurisdictional side also plays an important role and has to be considered. This brief introduction provides an overview of the issues which will be discussed in the book, an indication of its scope and, finally, it...

Part I The Consensual Nature of Arbitration, 4 The Juridical Nature of Arbitration with Particular Regard to its Consensual Nature »

From: Consent in International Arbitration
Andrea Marco Steingruber
4.01 This chapter discusses the juridical nature of arbitration with particular regard to its consensual nature. 4.02 Traditionally four theories have been suggested with respect to the juridical nature of arbitration: the contractual, the jurisdictional, the mixed or hybrid, and the autonomous theory. These theories aim to show how the international arbitration process, with extensive detachment but with some recognition and support required from the national legal system, can be explained in light of the sovereignty and control of the national legal order—or, in...

List of abbreviations »

From: Consent in International Arbitration
Andrea Marco Steingruber

Part I The Consensual Nature of Arbitration, 5 The Multiple Facets of Consent to Arbitration and the Determination of Jurisdiction »

From: Consent in International Arbitration
Andrea Marco Steingruber
5.01 This chapter examines the multiple facets of consent to arbitration and discusses the determination of jurisdiction paying particular regard to issues concerning parties’ consent. ‘Consent’ is a term which can have different meanings. The term ‘consent’ can be defined as: ‘agreement, approval or permission as to some act or purpose, especially given voluntarily by a competent person; legally effective assent’.1 5.02 ‘Agreement’, on the other hand, is ‘a mutual understanding between two or more persons about their relative rights and duties regarding past or...

Preface »

From: Consent in International Arbitration
Andrea Marco Steingruber

Part I The Consensual Nature of Arbitration, Preliminary Material »

From: Consent in International Arbitration
Andrea Marco Steingruber