The Mutable and Evolving Concept of ‘Consent’ in International Arbitration – Comparing rules, laws, treaties and types of arbitration for a better understanding of the concept of ‘Consent’

Andrea Marco Steingruber*

(2012) Oxford U Comparative L Forum 2 at ouclf.iuscomp.org | How to cite this article

Contents

Abstract

Consent is considered the cornerstone of international arbitration. Yet in the last few years there has been an increasing discomfort with this deep-rooted assumption, with a discussion emerging. Scholars have spoken of the ‘dogma of consent’ or the ‘marginalization’ of it. The main reason for this is that arbitration has evolved and expanded. Multiparty situations involving complex jurisdictional issues are now quite common, and investment arbitration has experienced an exponential growth the last two decades. The article suggests that the consensual nature of arbitration should be looked at from different perspectives. These different perspectives should highlight that the consensual nature of international arbitration is a complex phenomenon and that the qualification of arbitration as a ‘consensual’ dispute resolution mechanism needs to be differentiated and reconciled with the jurisdictional side of arbitration.

Table of contents

Arbitration is a consensual1 and private dispute resolution mechanism which leads to an enforceable arbitral award. The contractual foundations of arbitration constitute the fundamental difference between arbitration and litigation.2 An important cornerstone for the ‘consensual’ characterisation of international commercial arbitration is undoubtedly the 1958 New York Convention on Recognition and Enforcement of Arbitral Awards (‘New York Convention’) which, despite its title, also deals with the recognition of arbitration agreements.3 Yet issues with regard to the consensual nature of arbitration already arise in the field of commercial arbitration. In commercial arbitration, complex multiparty proceedings have become commonplace.4 While the historical role of arbitration was that of an informal and bilateral dispute resolution process particularly popular for resolving disputes in linear bilateral commercial transactions5, we have entered into an era of complex jurisdictional issues.6 Moreover, arbitration is used as a dispute resolution mechanism in fields other than traditional commercial arbitration. In these new fields, the perception of the consensual nature of arbitration is different. The reaction to this evolution and the changing perception of the consensual nature of arbitration are different: some authors would like to abandon the dogma of consent,7 others speak about the marginalization of consent8, while still others maintain that it is more accurate to speak of a modern approach to consent.9 In the case of investment arbitration, one scholar has stressed the importance of consent by suggesting that this type of arbitration is a consensual, but not a contractual, dispute resolution mechanism.10

This article will give an overview on the different facets of the consensual nature of international arbitration by considering the classical field of commercial arbitration, but then also the more recent and exponentially expanding field of investment arbitration with its peculiarities. The starting point of the discussion will be the instrument whereby parties’ express their consent to arbitration: the arbitration agreement. The paper will then examine the different aspects of the consensual nature of international arbitration from seven different perspectives:

 

  • the definition perspective;
  • the evolution perspective;
  • the structural perspective;
  • the validity perspective;
  • the scope perspective;
  • the enlargement perspective;
  • the procedural needs perspective.11

 

1. The arbitration agreement

The arbitration agreement is the cornerstone of the arbitration process,12 as there can be no arbitration between parties that have not agreed to arbitrate their disputes.13 At the same time, the arbitration agreement also establishes an obligation on the parties to arbitrate.14 While the contractual nature of arbitration is undisputed in commercial arbitration,15 the situation is less clear in investment arbitration. However, in recent times national courts have underlined the fact that investment arbitration also has a contractual character.16 This view is also shared by leading scholars.17

1.1 Functions and effects of the arbitration agreement

The majority of statutes and international conventions provide for a definition of the arbitration agreement,18 although these do not define arbitration as such.19 One of the most comprehensive provisions is Article 7 of the UNCITRAL Model Law on International Commercial Arbitration.20 Arbitration agreements have both a contractual21 and a jurisdictional22 character23 and fulfil a number of different functions:

 

  • they evidence the consent of the parties to submit their disputes to arbitration;
  • they establish the jurisdiction and authority of the arbitral tribunal over that of the courts; and
  • they are the basic source of the power of the arbitrators.24

 

For the contractual theory, party autonomy is fundamental, as it influences most aspects of the arbitration.25 The effects of arbitration agreements can be subdivided into positive (or direct) effect and negative (or indirect) effect:26

 

  • The positive or direct effect of a valid arbitration agreement is to establish a special forum—the arbitration forum—for disputes between the parties. This alternative jurisdiction will have the authority to resolve those disputes or types of dispute which the parties have consented to refer to it.27 Also, it is a contractual obligation of the parties to have their disputes submitted to arbitration.28 Indeed, bringing proceedings in a national court would be a breach of the arbitration clause.29 The arbitration agreement vests the arbitrators, either expressly or through the arbitration rules chosen or the law which governs the arbitration, with all powers necessary to fulfil their mission.30
  • The negative or indirect effect of an arbitration agreement is to exclude the dispute from the jurisdiction of national courts; in fact, the arbitration agreement removes the national courts’ normal authority to consider and resolve disputes between the parties.31

 

In investment arbitration, the direct and indirect effects of arbitration agreements are also clearly reflected in Article 26 of the ICSID Convention on the Settlement of Investment Disputes between States and Nationals of Other States (‘ICSID Convention’), which states:

Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention.

1.2 The changing understanding of the arbitration agreement

The arbitration agreement is considered the foundation stone of international commercial arbitration, as ‘it records the consent of the parties to submit to arbitration—a consent which is indispensable to any process of dispute resolution outside national courts’.32 Such processes depend for their very existence upon the agreement of the parties. Thus, this element of consent is essential, as without it there can be no valid arbitration.33 While a widely established requirement is that there be a written arbitration agreement, in recent decades the accepted notion of what constitutes a written agreement has become more and more flexible.34 It has been observed that the contractual arrangement must be understood broadly in the sense that the parties’ consent can be given successively and in different ways.35 Thus, although in investment arbitration there is no arbitration agreement in the traditional sense, the arbitrators’ jurisdiction nevertheless stems from the initial consent of the State (often expressed with the signing of an investment treaty) and the subsequent consent of the claimant, who regularly accepts the arbitrator’s jurisdiction by starting the arbitration.36 Therefore, the contractual nature of arbitration does not entail that the arbitration agreement must be ‘reciprocal’, ie give the parties the same right to refer disputes to arbitration.37 Indeed, it is possible to confer upon one party the unilateral38 right to initiate an arbitration proceeding.39 However, notwithstanding these particularities, in investment arbitration—like in commercial arbitration—the attempt to emancipate arbitration from a State justice system is clear und unavoidable.40

2. The definition perspective

‘Consent’ is a multifaceted term.41 It may have the significance of the expression of consent or the reaching of mutual consent. Moreover the adjective ‘consensual’ is one of the essential criteria for arbitration’s qualification. While it is important to differentiate between the characterizations of ‘consensual’ as one of the essential criteria for arbitration’s qualification and ‘consent’ as a condition for the validity of the arbitration agreement, these two aspects influence each other. The interplay between the process of reaching mutual consent—first the unilateral expression of consent to arbitration by each party and then the reaching of mutual consent to arbitrate itself—and the consensual character of arbitration thus remains important. In fact, it is the process of reaching mutual consent which may influence the perception of the consensual character of arbitration.

2.1 ‘Consensual’ as a criterion of arbitration’s qualification

The consensual nature of arbitration is one of the fundamental elements of its classical characterization. French lawyers especially have stressed that the ‘origine volontaire de la mission de l’arbitre’42 is one of the essential criteria underpinning the notion of arbitration.43 The question as to whether a particular dispute resolution mechanism qualifies as ‘arbitration’ is important because only the process of qualification can determine whether the national laws and international conventions regulating arbitration will be applicable or not.44 The issue of qualification can be of relevance throughout the whole arbitral proceeding, ie from the time of conclusion of the arbitration agreement until the time of recognition and enforcement of the arbitral award.45

The concept of ‘arbitration’ has evolved over time and there has been an enlargement of the domains which are considered to be arbitrable. This process has in particular been facilitated by the fact that there is often a tendency to widen the significance of the notion of arbitration, a tendency which is frequently supported by a principle in favour of arbitration.46 This principle can be found in most countries that have adopted a pro-arbitration policy.47 In any event, the notion of arbitration should generally be distinct and larger in the field of international arbitration than in the domestic context, so as to allow learning from similar foreign institutions or notions which are different from the ones pertaining to a particular country.48 Following the classical characterization of arbitration as a consensual dispute resolution mechanism, legal doctrine generally does not treat arbitration compelled by law (mandatory arbitration) as ‘true’ arbitration, but rather a type of ‘jurisidictions d’exception’ where the power to judge has been delegated by the State and for which the legislator has decided to apply partly or completely the regime of arbitration.49

2.2 Expression of consent to arbitration and reaching of mutual consent to arbitrate

Consent to arbitration may be expressed in different ways.50 In both commercial and investment arbitration the parties may express their consent to resolve their disputes through arbitration by promise, ie through an offer and the acceptance of that offer. In investment arbitration the host State’s offer may be contained in a national investment law or in an investment treaty. In investment treaty arbitration the offer is made when mutual consent of the investment treaty’s parties—the contracting State parties—to use arbitration as a dispute resolution mechanism for solving disputes between host State and foreign investor is reached.At this stage there is, however, no arbitration agreement. Indeed, an arbitration agreement is only perfected when mutual consent between host State and foreign investor is reached.51 The acceptance of the foreign investor is therefore necessary. Moreover, parties may also express consent to arbitration by conduct. This type of consent can especially be found in complex commercial multiparty arbitrations. Finally, in investment arbitration a number of investment treaties provide that the foreign investor may express consent by performance, ie by instituting proceedings.52 It has been said of this technique—of accepting the offer through instituting proceedings—that it implies consent more than it requires an express and specific manifestation of it.53 When the terms of the offer have been accepted, mutual consent to arbitrate is reached.54 At this stage an arbitration agreement is perfected. Arbitration agreements are contracts and consent to arbitration is their substantive side. However a contract may also be concluded by conduct of the parties that is sufficient to show agreement,55 or in investment arbitration by performance.

3. The evolution perspective

Arbitration is an institution which is considered to have preceded courts and judicial settlement56 and which must have existed since the dawn of commerce.57 However, while at the end of the 1980s the domain of international trade was still seen as the only area where arbitration was the dominant method of settling disputes,58 today arbitration has developed into the most common method for generally settling international disputes.59 In particular, arbitration of investment disputes has experienced an exponential growth in the last two decades. During this evolution the consensual character of arbitration has undergone a transformation.60 At the outset any decision to have recourse to arbitration was taken by the parties after the dispute had broken out (compromis—submission agreement). Arbitration had, therefore, a pure consensual character with a peace restoration function.61 However over time there has been a move to an understanding of arbitration where consent is expressed before the dispute has arisen (clause compromissoire—arbitration clause). This evolution brings a reduction in the pure consensual character of arbitration, but also a bigger acceptance of arbitration as a mechanism for the resolution of international disputes. Indeed, the acceptance of and recourse to arbitration is often a necessary pre-condition for entry into the international marketplace.62 Today in the field of investment arbitration the distinction between submission agreement and arbitration clause has even lost its importance, because in investment arbitration the host State expresses its consent before the dispute has broken out, whereas the foreign investor regularly expresses it after the dispute has arisen.63

Over the years there has also been an expansion in parties’ freedom to arbitrate, ie of the domains considered to be arbitrable. In fact in recent years, the scope of rights amenable to arbitration has grown to such an extent that the concept of (objective) arbitrability has reduced its significance in today’s arbitration world.64 A further evolution has been the progressive abolition of the restrictions on States’ entitlement to enter arbitration agreements (subjective arbitrability). States cannot rely on their own law to invalidate an arbitration agreement they entered freely.65 The changing attitude and role of the State has modified the face of arbitration, as can best be seen with regard to investment arbitration. In investment arbitration States express their consent in national investment laws and investment treaties to resolve disputes with foreign investors through the means of arbitration (standing offers). Besides, in the case of investment treaties, the contracting States to the treaties also reach an agreement to use arbitration as a dispute resolution mechanism.66 The resolution of international investment disputes has been seen as ‘new territory for international arbitration’.67 Investment disputes differ in several respects from ordinary commercial disputes,68 and it has been observed that with investment arbitration, arbitration’s scope of application has been widened to include disputes of a mixed political and commercial character.69

4. The structural perspective

The structural perspective is closely linked with the evolution of arbitration. In the commercial field there is a growing complexity of cases and a great number of multiparty arbitrations. In investment arbitration the relationship is between a State and a private investor; and the State regularly expresses its consent in a national investment law or an investment treaty. Moreover a further distinctiveness of investment treaty arbitration is that multiple parties are involved.

4.1. Commercial arbitration

The historical role of arbitration was that of an informal and bilateral dispute resolution process, particularly popular in linear bilateral commercial transactions, such as sale of goods and transport contracts.70 However, arbitrations involving complex jurisdictional issues have become commonplace.71 Often the traditional role and bilateral nature of arbitration cannot accommodate modern international transactions which take place in areas such as construction contracts, banking and financial transactions, reinsurance contracts, and transactions concerning multinational corporations and States operating through State agencies or other emanations of the State. In complex situations consent to arbitration is often expressed by conduct.72 In many areas arbitration is perceived to have a reduced consensual character.73 This is the case in the banking field, where unilateral arbitration clauses are important,74 or in charter-parties and reinsurance contracts arbitration, where clauses incorporated by reference play an essential role.75 In the field of sports the perceived reduced consensual character is due to arbitration clauses contained in the articles of association of sports organizations.76 Nevertheless, when the process of reaching consent differs due to structural diversities or because mutual consent to arbitrate is reached through unilateral arbitration clauses, arbitration clauses by reference or arbitration clauses contained in articles of association, arbitration is not a less consensual dispute resolution mechanism. Indeed on the one hand there are different ways of expressing consent to arbitration (by promise, by conduct) and on the other hand there are different types of contract. An arbitration agreement does not necessarily need to be a synalagmatic contract.

4.2. Investment arbitration

In investment arbitration the State regularly expresses its consent to arbitration in national investment laws or bilateral and multilateral investment treaties. In the last two decades there has been an exponential growth in the number of investment treaties and investment disputes. An impressive number of investment laws, bilateral investment treaties (BITs),77 and multilateral investment treaties or instruments78 implement a process which allows private complainants direct access to arbitration against a State and public authorities, irrespective of the existence of a contractual agreement to that effect.79 These new types of investment conventions have marked the beginning of an era of arbitration without contractual relationship between the parties to the dispute80 —or arbitration without privity.81 This is nothing short of a revolution of the (traditional) arbitration theory, which postulates that arbitration is the product of a contract: either an arbitration clause for future disputes or an arbitration agreement for existing disputes.82 A particularity of investment treaty arbitration is that multiple parties are involved. Indeed the expression of State’s consent to arbitration stems from an international treaty concluded by two—in the case of BITs—or more, in the case of multilateral investment treaties—contracting States. The host State makes a unilateral standing offer (consent) to arbitrate in advance. For States this has represented an evolution from retrospective to prospective consent to arbitration in the international context.83 The multiplicity of parties involved is shown by the fact that the host State’s offer has been considered by certain scholars,84 and also by some national courts,85 as a contract concluded in favour of a third person (ie the foreign investors). Moreover, the host State’s standing offer is made by a State to multiple potential private foreign investors. Indeed, several private foreign investors could be affected by the same measure taken by a host State. In investment arbitration there is a sort of ‘verticalization’ of arbitration, and a declining importance of the classic ‘mirror arbitration’ scheme. In fact, often it will only be the aggrieved investor that can bring a claim against the State.86 In other words, investment arbitration can be based on an arbitration agreement which takes the form of a unilateral contract and which is concluded once the foreign investor finalizes the expression of its consent by instituting the arbitration proceeding (expression of consent by performance).87

5. The validity perspective: reaching of mutual consent

Arbitration agreements are contracts. However, contracts may be of different types. They can be bilateral and synalagmatic, bilateral but non-synalagmatic or unilateral. The same is true for arbitration agreements.

5.1. Commercial arbitration

In commercial arbitration the parties express their consent by promise (offer and acceptance) or by conduct. Regularly the arbitration agreement is a bilateral synalagmatic contract, in which both parties have expressed their consent by promise. This is particularly so when the parties adopt model arbitration agreements of arbitration institutions. Nevertheless, it is also possible to have bilateral contracts in which parties express their consent by conduct.88 Such situations usually arise in complex multiparty arbitrations, in which non-signatories are involved. Yet not all arbitration agreements are bilateral synalygmatic contracts. Unilateral arbitration agreements are bilateral but non-synalagmatic contracts. Unilateral clauses are most often used where one party has a superior bargaining power, for instance in charter-parties in favour of owners of the vessel.89 They are also frequently found in the banking field.90 In commercial arbitration mutual consent to arbitration has to be reached with regard to the essential elements, ie agreement between the parties that any dispute between them will be resolved by arbitration, and an indication of the dispute or legal relationship that will be the subject matter of arbitration.91 On these two aspects consent must be reached by the parties in order to have a substantive valid arbitration agreement.92 However, other elements may also be of importance, for instance the seat of arbitration, the number and appointment of arbitrators, the language of the proceedings, and provisions for multiparty situations.93

5.2. Investment arbitration

The greatest difference between investment arbitration and commercial arbitration is the source of the arbitral tribunal’s power: while commercial arbitration requires an arbitration agreement between the parties, investment arbitration may also be possible without such an arbitration agreement in the ordinary sense.94 Indeed, the consent to arbitration can have three origins: an arbitration clause in an investor-State contract, a provision in an investment code or law or the dispute-settlement clause of a bilateral or multilateral investment treaty.95 Often, before consent can be perfected through a request of arbitration, investment treaties require other preconditions that are normally absent in the field of commercial arbitration to be met.96 In fact, investment treaties may contain fork-in-the-road provisions,97 provisions dealing with waiver of local remedies,98 or amicable negotiation period provisions.99

5.2.1. Consent through direct agreement between the parties

An agreement between the parties recording consent to arbitration may be reached through a compromissory clause in an investment agreement between the host State and the investor submitting future disputes arising from the investment operation to arbitration.100 This is the classic arbitration clause, included in contracts entered into by a host State or any subdivision or agency thereof and an investor of another State.101 While an agreement between the parties recorded in a single instrument is the most common form of consent, the agreement on consent between the parties need not necessarily be recorded in a single instrument.102 In particular, an agreement between the parties can record their consent to arbitration by reference to another legal instrument.103 There have also been cases where the investor had concluded several successive contracts with a State connected to the same investment and where only one of them contained a clause whereby the parties consented to ICSID arbitration. Arbitral tribunals have generally taken a broad view of expressions of consent in those cases, also applying the principle of the ‘unity of the investment’.104

5.2.2. Consent through host State (national) investment legislation

The host State may offer consent to arbitration in general terms to foreign investors or to certain categories of foreign investors in its national legislation;105 such an offer, in order to perfect consent, has to be accepted by the foreign investor.106 When ICSID arbitration is provided for in national legislation, a connection is formed between the requirement of consent stipulated by the ICSID Convention and the internal legislation of that State.107 References to dispute settlement by the ICSID Centre in national investment legislation show a considerable measure of diversity and not all of them amount to consent to jurisdiction or an offer to the investor to accept ICSID’s jurisdiction.108 Due to the fact that very few national investment laws109 contain an unequivocally worded offer by the host State to arbitrate before ICSID, the process of interpreting them becomes important.110 However, when an offer is made by the host State to the foreign investors, this offer is a standing offer. Unlike bilateral or multilateral treaties, the provisions contained in national investment protection laws generally extend to all foreign investors, as they may in effect contain an open offer to arbitrate disputes with foreign investors.111

5.2.3. Consent through investment treaties

The host State may also give its consent to investment arbitration under international treaties,112 whether bilateral or multilateral.113 In those cases the consent of the host State is granted on the level of public international law.114 While some investment treaties only contain declarations of intent to make such offers in the future, in the majority of cases they constitute an offer by the host State to all investors from the other State party (or State parties) to settle disputes by arbitration.115 However, investment treaties do not contain an open offer to arbitrate disputes extended to all foreign investors irrespective of their nationality, but only a unilateral offer to arbitrate, from a State, in respect to the investors that are nationals of the other contracting State party (in the case of BITs)—or contracting State parties (in the case of multilateral treaties)—to the treaty. It is exactly because of the unilateral character of the standing offers contained in investment treaties that the issue of the investors’ nationality is of paramount importance in investment treaty arbitration.

5.2.3.1. Bilateral Investment Treaties (BITs)

The clauses contained in the BITs—known as unequivocal consent, automatic consent or advanced consent clauses—are characterised by containing an offer to arbitrate that is:

 

  • public in nature (ie contained in an instrument of public international law);
  • unilateral in character (ie in respect of all investors that are national of the other contracting State party);
  • binding on the issuing State party (in that the State receiving foreign investment is internationally bound vis-à-vis the State of which the investor is a national);
  • only revocable by means of an instrument of equal rank; and
  • subject to a set term during which it will remain in force.116

 

It has been observed that arbitral jurisdiction is no longer premised on the privity of contracts, ie on reciprocity of negotiated consent, as under this new concept reciprocity is renounced and replaced by a sort of compulsory jurisdiction against the host State.117 Yet the separate agreement to arbitrate an investment claim under a BIT is a contract and not a treaty.118 As the English Court of Appeal held in Republic of Ecuador v Occidental Exploration and Production Co.:

The treaty involves … a deliberate attempt to ensure for private investors the benefits and protection of consensual arbitration; … the agreement to arbitrate which results by following the treaty route is not itself a treaty. It is an agreement between a private investor on the one side and the relevant state on the other.119

5.2.3.2. Multilateral investment treaties

Since the early 1990s a number of multilateral treaties that provide for ICSID’s jurisdiction have come into existence: the North American Free Trade Agreement (‘NAFTA’), the Energy Charter Treaty (‘ECT’), MERCOSUR120 and the Cartagena Free Trade Agreement.121 The underlying mechanism is similar to the one in BITs. Multilateral investment treaties also contain offers by State parties to consent to arbitration.122 Such offers may be accepted by investors of any other contracting State party to the treaty.123 Some multilateral instruments,124 however, only contain reference to ICSID dispute settlement mechanism without offering consent on the part of the participating States.125

Article 26 of the ECT contains a rather innovative regime for dispute settlement, creating a direct investor/State obligation of compulsory arbitration.126 Under Article 26(3) of the ECT the States give their unconditional consent to the submission of a dispute to international arbitration.Indeed, the foreign investor is not bound by earlier contractual commitments when making its choice and it may opt for arbitration even though the contract with the State included a forum selection clause in favour of the host State’s court or a different type of arbitration.127

6. The scope perspective

In commercial arbitration the scope of arbitration proceedings is habitually defined by both disputing parties, whereas in investment arbitration it is essentially the host State’s offer which circumscribes the scope of consent to arbitration.

6.1. Commercial arbitration

In commercial arbitration most arbitration agreements are broadly worded, and usually when parties agree to resolve any disputes between them by arbitration, they intend to resolve all disputes between them by this method (unless a specific exception is made). This is particularly the case when the parties choose model clauses.128 The agreement must identify what disputes should be referred to arbitration: is it all or only specific disputes arising out of the specific contractual relationship between the parties?129 In doing this ‘it is important to ensure that the wording adopted in an arbitration agreement is adequate to fulfil the intentions of the parties’.130 The various arbitration institutions recommend model clauses with broad wording by referring to ‘all’131 or ‘any dispute’,132 ‘all disputes, controversies and differences’133 or just generally ‘disputes, controversies or claims’.134 Moreover, in identifying the link between the dispute and the contract phrases are used such as ‘arising out of or in connection with’.135 Clearly the expression ‘in connection with’ is wider than ‘arising out of’ a particular contract; this wider language may allow an arbitral tribunal to deal with a peripheral agreement which relates to, but is separate from, the main agreement in which the arbitration agreement is contained—even though it is not expressly or directly covered in that main agreement.136 Language should be used which identifies the generic issues between the parties, eg ‘disputes arising out of or in connection with this contract, including any question regarding its existence, validity or termination’137 —this may facilitate set-off and counterclaims being addressed in the same arbitration.138 Through the broad wording of the model clauses recommended by the various arbitration institutions, the parties agree that a bigger number of disputes fall within the scope of the arbitration agreement. However, as consent is expressed by the parties before the disputes break out, there is at the same time a reduction in the pure consensual character of arbitration. The enlargement of the scope of arbitration’s consent because of a broad wording of the arbitration agreements coupled with the reduction in the pure consensual character of arbitration because consent to arbitration is expressed in advance could be labelled the ‘paradox of consent’.139 The reduction of the pure consensual character of arbitration goes hand in hand with the growing acceptance of arbitration as a mechanism to solve international disputes.140

6.2. Investment arbitration

While the scope in commercial arbitration is essentially defined by both disputing parties, the situation is different in investment arbitration. In investment arbitration it is the host State’s offer which circumscribes the scope of consent to arbitration. The offer may vary. In ICSID arbitration Article 25 of the ICSID Convention defines the outer limits of the offer that the State parties may express. On the other hand there is nothing which can prevent States circumscribing offers in a narrower way. Important issues may also arise with regard to counterclaims—however these will not be addressed in this article.141

6.2.1. The limitations of the scope of consent

Limitations of the scope of consent are defined by the host State. Indeed, it is the offeror who sets the limitations. Or, in other words, the host State determines how far-reaching the offer is. The investor cannot set limitations, because this would amount to a counter-offer—the investor can only accept or reject the host State’s offer.142

6.2.1.1. In national investment legislations

References to ICSID provided for in national investment legislation typically relate to the application and interpretation of the piece of legislation in question.143 While some national laws are more far-reaching and simply refer to disputes ‘concerning foreign investment’,144 others describe the questions covered by consent clauses in narrower terms which may include the requirement that ‘the dispute is fundamental to the investment itself’145 or that the dispute must be ‘in respect of any approved enterprise’.146 Some national laws clearly circumscribe the issues that are subject to ICSID’s jurisdiction. This is, for example, the case with the Albanian Law on Foreign Investment of 1993 which offers consent to ICSID’s jurisdiction, but limits it to the disputes which arise ‘out of or relates to expropriation, compensation for expropriation, or discrimination and also for the transfers in accordance with Article 7’.147

6.2.1.2. In the BITs

Although clauses contained in BITs are generally quite broad, there are BIT clauses offering consent to arbitration which do not refer to investment disputes in general terms but circumscribe the types of disputes that are submitted to arbitration.148 A narrower offer of consent to arbitration in BITs merely covers violations of the BIT’s substantive standards.149 Moreover, some expressions of consent to arbitration are narrowly confined as to their subject matter.150 Indeed, some BITs require that the investment has been specifically approved by the competent authority of the host State,151 whereas others signed by China, the USSR (in the past) and certain Eastern European States limit the consent to investor–State arbitration to disputes regarding the amount of damages for an expropriation.152 However, this last type of limitation is losing importance in new concluded BITs.153

6.2.1.3. In multilateral investment treaties

The NAFTA and the ECT both restrict possible claims to violations of the treaties themselves. According to Articles 1116 and 1117 of the NAFTA the scope of the consent to arbitration is limited to claims arising from alleged breaches of the NAFTA itself and, similarly, under Article 26(1) of the ECT the scope of consent is limited to claims arising from alleged breaches of the ECT itself.154

6.2.2. Conditions of the ICSID Convention

Under Article 25 of the ICSID Convention three cumulative conditions have to be fulfilled for the establishment of ICSID’s jurisdiction. These conditions are that:

 

  • one of the parties to the dispute must be a State which has acceded to the Convention, whereas the other party must be an investor national of another Contracting State;
  • the dispute must be a legal dispute arising directly out of an investment; and
  • there must be the consent of the parties to submit certain disputes to the Centre.

 

The scope of consent to arbitration offered in national laws and investment treaties may vary.155 Indeed, while Article 25 of the ICSID Convention defines the outer limits of the consent that the parties may give, there is nothing to stop them from circumscribing it in a narrower way.156 The parties are therefore free to delimit their consent by defining it in abstract terms, by excluding certain types of disputes or by listing the questions they are submitting to ICSID’s jurisdiction.157 On the other hand, ICSID Centre’s services are not available for any dispute that the parties may wish to submit. In particular, it has always been clear that ordinary commercial transactions would not be covered by the Centre’s jurisdiction, no matter how far-reaching the parties’ consent may be.158

6.2.2.1. The foreign investor’s nationality

The investor’s nationality159 determines which treaties the investor may benefit from. If the investor wishes to rely on a BIT, it must show that it has the nationality of one of the two contracting State parties to the BIT,160 or, in the case of a multilateral treaty, of one of the contracting State parties to the multilateral treaty. The investment treaty may adopt different criteria for defining the foreign investor’s nationality. This is particularly true for the definition of the nationality of companies. In view of consent to arbitration related to jurisdiction ratione personae two aspects are of particular importance:161

 

  • the investment treaty may not contain a definition of ‘nationality’;
  • the investment treaty contains a definition of the company’s nationality which adopts the principle of incorporation which can collide with the economic reality.162

 

In applying the nationality requirement under Article 25 of the ICSID Convention, the arbitral tribunal of Autopista v Venezuela163 —composed of arbitrators with a commercial law background—determined that when the investment treaty was silent, the parties to the investment agreement were free to define nationality as long as the definition was reasonable.164 This finding has been criticised by a renowned public international law scholar.165

6.2.2.2. Investment

The existence of an investment is a keystone of ICSID’s jurisdiction.166 However, despite the fact that the term ‘investment’ appears at the heart of both the name of the ICSID as well as in the title of the Washington Convention on the Settlement of Investment Disputes between States and Nationals of other States, no definition of this term is provided in the text of the Convention.167 In addition, definitions provided by investment treaties and national investment laws are often of little use as well.168 For the purposes of Article 25 of the ICSID Convention, arbitral tribunals have adopted a list of descriptors that they regard as typical of investments.169 The descriptors include:

 

  • a substantial commitment;
  • a certain duration;
  • an element of risk; and
  • importance for the host State’s development.170

 

The four criteria are considered to be embodied in Article 25 of the ICSID Convention. The earliest award which considered the meaning of the concept ‘investment’ in depth was Fedax v Republic of Venezuela.171 These criteria were then restated clearly in Salini v Morocco172 in 2001 and have also been applied in subsequent decisions.173 Yet Reed, Paulsson, and Blackaby have observed that ICSID tribunals seem to have been less uniform in recent years with the Salini criteria following different approaches:

 

  • a first approach adopted by the tribunals considers that the notion of ‘investment’ under the ICSID Convention can be understood and illustrated through the Salini criteria.174 These characteristics are, however, not a strict test, but only criteria establishing ‘benchmarks or yardsticks to help a tribunal in assessing the existence of an investment’,175 that ‘must be considered as mere examples’;176
  • a second approach, on the other hand, considers such criteria necessary elements that must be satisfied cumulatively. ICSID tribunals which have followed this second approach did, however, not agree on the exact criteria. Some tribunals have adopted three177 or all four of the characteristics of the Salini test,178 whereas others have added criteria to be fulfilled, such as a regularity of profit and return179 and investment of assets in good faith and in accordance with the laws of the host State.180

 

Recently in Abaclat and Others v Argentina181 the majority tribunal even departed from the Salini test.182 The tribunal found that the ICSID Convention’s aim is ‘to encourage private investment while giving the parties the tools to further define what kind of investment they want to promote’.183

It has been observed that the ICSID Convention ‘does not imply unlimited freedom for the parties’ and that ‘the term “investment” has an objective meaning independent of the parties’ disposition’.184 Therefore, an asset which is considered to be an investment under an investment treaty may not necessarily be one under Article 25 of the ICSID Convention.185 In Fedax v Republic of Venezuela186 the tribunal held that Article 25(1) of the ICSID Convention covers direct and indirect foreign investments and that promissory notes, as such, were not excluded from the Convention and thus the definition given to the term ‘investment’ by the parties was of relevance.187 The Abaclat majority tribunal even considered sovereign bonds and the security entitlements therein to be generated by a contribution that is in line with the spirit and aim of Article 25 of the ICSID Convention und therefore qualified as ‘investment’ under Article 25 of the ICSID Convention.188

The practice of the arbitral tribunals has been inclined to interpret the expression ‘investment’ in Article 25 of the ICSID Convention autonomously, ie independently of the investment clause in the applicable BIT.189 In determining whether an ICSID arbitral tribunal has the competence to consider the merits of the claim, a two-fold test of the notion of investment, sometimes called the ‘double keyhole approach’ or ‘double-barrelled test’,190 must thus be applied:

 

  • whether the dispute arises out of an investment within the meaning of the ICSID Convention; and, if so,
  • whether the dispute relates to an investment as defined in the parties’ consent to ICSID arbitration, in their reference to the BIT and the pertinent definitions contained in the BIT.191

 

Although the arbitral tribunals therefore have to determine whether the case falls within the scope of consent given by the host State in light of the definition of ‘investment’ in the BIT, the distinction is blurred if both parties consent to submit the case to ICSID, as this would imply a strong (but rebuttable) presumption that the case involved an investment.192 However, views abandoning the ‘double-barrelled test’ have also been sustained. On the one hand it has been argued that ‘in the case of BIT arbitration under the ICSID Convention, the “double barrelled” test need not be applied since the ICSID Convention does not contain a definition of “investment” and the State parties to the BIT have agreed to such a definition in a treaty between them, ie the BIT’.193 Moreover, the opinion has been expressed that the term ‘investment’ has an objective meaning in itself and that therefore it has under the BIT an inherent meaning, irrespective of whether the investor resorts to ICSID or UNCITRAL arbitration.194

6.2.2.3. Consent

Like any form of arbitration, investment arbitration is always based on an agreement and consent to arbitration is an indispensable requirement for an arbitral tribunal’s jurisdiction.195 However, consent alone is not sufficient. This fact has been borne out by the Report of the Executive Directors:

While consent of the parties is an essential prerequisite for the jurisdiction of the Centre, consent alone will not suffice to bring a dispute within its jurisdiction. In keeping with the purpose of the Convention, the jurisdiction of the Centre is further limited by reference to the nature of the dispute and the parties thereto.196

7. The enlargement perspective

Consent to arbitration can also be analyzed under the viewpoint of a tendency to enlarge the reach of jurisdiction. In commercial arbitration the question is mainly about the involvement in arbitration proceedings of third parties. In investment arbitration the enlargement perspective is related to the jurisdictional requirements, but an enlargement can also take place because of MFN clauses and umbrella clauses contained in investment treaties. Generally, arbitral tribunals and the national courts of countries which follow an approach in favour of arbitration tend to enlarge the field of application of arbitration.

7.1. Commercial arbitration

On the one hand, it is generally accepted that a party may be introduced in arbitration through specific theories of contract law and general principles of corporate law,197 for instance agency,198 assignment,199 subrogation,200 third party beneficiaries201 and universal succession.202 In all these cases the party that is not designated in the arbitration clause will not, strictly speaking, be a third party. On the other hand, arbitration agreements, like any substantive contract, can be ‘extended’ on a non-signatory party on the basis of consent implied by conduct. Non-signatory theories203 —in particular the doctrine of arbitral estoppel204 and the doctrine of group of companies205 —have been developed and employed to facilitate deduction of consent to arbitrate implied by conduct. Indeed the main purpose of non-signatory theories is:

to presume or at least facilitate the deduction of consent. For example, in the context of the group of companies doctrine it can be enough for a party to prove that several companies constitute an “economic unit” and that the non-signatory company has taken an “active role in the negotiation or the performance of the contract containing the arbitration agreement” for the tribunal to presume the “common will of the parties to arbitrate”. In some cases non-signatory theories have gone as far as to suggest that mere awareness of the existence of an arbitration clause will be sufficient for a party to be bound by it.206

Consent to arbitration may also exist if a contract does not contain an arbitration clause but forms part of a contractual network which includes an arbitration agreement, as is the case where parties enter into a framework agreement, containing an arbitration clause, governing their future relationship within which they conclude a number of separate contracts.207 Depending on the facts of the case, an arbitration agreement may likewise exist if the contract is part of a series of contracts between the same parties, the majority of which consistently contain arbitration clauses.208 Whether the arbitration clause in the main contract may also extend to follow-up or repeat contracts concluded in close connection and in support of a main contract is usually a question of interpretation; this may be the case if the subsequent agreements amend or complete the main contract209 but not where the additional contracts go beyond the implementation of the main contract.210

7.2. Investment arbitration

In investment arbitration the enlargement perspective is related to the jurisdictional requirements. With regard to the jurisdiction ratione personae the ICSID Convention itself provides for an enlargement of jurisdiction under Article 25(2)(b), which deals with the juridical persons that are incorporated in the host State but are controlled by nationals of another State. An enlargement of jurisdiction can then also take place in relation to the requirements ratione materiae and temporis.

7.2.1. Expansion ratione personae

Host States frequently require that investments be made through locally incorporated companies. As Article 25(2)(b) of the ICSID Convention already deals with the juridical persons that are incorporated in the host State but are controlled by nationals of another State,211 in investment arbitration the issue with regard to the expansion of consent because of ratione personae is primarily one of how the concept of ‘control’ has to be defined. In a pyramid of control two aspects may be controversial:

 

  • Which is the relevant party for the control? and
  • How much control is necessary?212

 

The determination of ‘foreign control’ is not an easy task. The difficulties are mainly due to the fact that different criteria may find application in defining the concept of ‘foreign control’ in national investment laws and investment treaties and in interpreting it. Moreover there can be an area of conflict between economic reality and legal structure.213 In addition, with regard to the relevant party for the control, the arbitral tribunal of the TSA Spectrum v Argentina214 case underlined the inconsistent case law.215

7.2.2 Expansion ratione materiae

Among scholars there is a lack of consensus as to the definition of the term ‘investment’ and they can be divided into two main camps: the ‘subjectivist movement’ which attaches greater importance to the will of the investment treaties’ parties in defining an economic operation as an investment and the ‘objectivist movement’ for which the notion of investment entails a core of elements which include a contribution from the foreign investor, a certain duration for the project and risk borne by the investor.216 ICSID arbitral tribunals have for a long time followed an approach that combines the objectivist and subjectivist perspectives, taking into account the fact that foreign investors have made certain capital contributions in the territory of the host States and that parties have agreed to consider their dispute as arising directly from an investment within the meaning of Article 25(1) of the ICSID Convention.217 However, at the end of the 1990s, in two decisions, Fedax218 and CSOB v Slovak Republic,219 ICSID arbitral tribunals accepted jurisdiction over claims for breaches of loan contracts and initiated a ‘liberal’ trend in the Centre’s case law on this issue.220 The arbitral tribunal of Ceskoslovenska Obchodni Banka, AS (Czech Republic) v The Slovak Republic,221 in dealing with the objective notion of ‘investment’ under the ICSID Convention, held:

that investment as a concept should be interpreted broadly because the drafters of the Convention did not impose any restrictions on its meaning.222

A particularly accentuated subjectivist approach was recently taken in the Abaclat and Others v Argentina case223 by the majority tribunal which found that the ICSID Convention’s aim is ‘to encourage private investment while giving the parties the tools to further define what kind of investment they want to promote’.224

7.2.3. Expansion ratione temporis

In relation to jurisdiction ratione temporis225 the relevant date for determining whether the jurisdictional requirements are satisfied is the date of the institution of proceedings.226 However, the host State’s consent to arbitration normally also extends to investments that existed prior to the entry into force of the investment treaty.227 Moreover, disputes may also have begun prior to the entry into force of the investment treaty.228 Yet there are investment treaties that limit consent to arbitration to disputes arising after their entry into force. In these cases, the definition of ‘dispute’ takes on fundamental importance. Arbitral tribunals have from time to time made a distinction between contract claims and treaty claims229 or distinguished between divergences and disputes.230 In doing so they could affirm jurisdiction.

7.2.4. Expansion through umbrella and MFN clauses

Another technique found in investment treaties, which may extend the scope of their protection, is the so-called ‘umbrella clause’.231 On the other hand, the situation with MFN clauses is less clear. Most arbitral tribunals have held that MFN clauses cannot prevail over the fundamental arbitration requirement, which is the reaching of mutual consent to arbitrate.

7.2.4.1. Umbrella clause

An umbrella clause is a provision in an investment treaty that guarantees the observation of obligations assumed by the host State vis-à-vis the investor; the most contentious issue with regard to clauses of this kind is whether, and under what circumstances, they place investment agreements, ie contracts between the host State and the investor, under the treaty’s protection.232 The wording of umbrella clauses is not uniform. Consequently, the main factor affecting the host State’s consent to arbitration is the interpretation of umbrella clauses. Moreover, not all investment treaties contain umbrella clauses.233 In interpreting umbrella clauses there have been cases in which tribunals have adopted a rather restrictive or balanced way of interpretation, and others in which they adopted a rather expansive way of interpretation. With regard to umbrella clauses much attention234 has been paid to the conflicting outcomes of the awards in SGS v Pakistan235 and SGS v Philippines.236

7.2.4.2. Most-Favoured-Nation (MFN) clauses

An MFN clause contained in an investment treaty will extend the better treatment granted to a third State or its nationals to a beneficiary of the treaty.237 Most BITs and some other treaties238 for the protection of investment include MFN clauses.239 The question in our context is whether such ‘no less favourable treatment’ also applies to the dispute settlement options: can one incorporate into a treaty a dispute resolution provision of another treaty in whole or in part?240 In the Maffezini case241 the arbitral tribunal decided the question of whether more favourable provisions on dispute settlement contained in the basic treaty could be extended to the beneficiary of another treaty by operation of the MFN clause in the affirmative on the ground that procedural and substantive rights were intimately connected.242 Indeed the arbitral tribunal considered ‘that there are good reasons to conclude that today dispute settlement arrangements are inextricably related to the protection of foreign investors’. An extension would, however, not be possible on grounds of ‘public policy exceptions’.243 Also the arbitral tribunals of Siemens,244 Gas Natural245 and Suez246 interpreted silence or ambiguity as indicative that the MFN clause included, with certain limits, procedural provisions.247 On the other hand, in three cases rendered in 2004, 2005 and 2006, namely Salini,248 Plama249 and Telenor,250 other ICSID arbitral tribunals considered that the MFN clause could not prevail on the fundamental arbitration requirement which is the meeting of the parties’ consents to arbitrate.251

The jurisprudence on MFN clauses is not as inconsistent as it might initially appear to be, especially when taking the following into account:

 

  • Maffezini, Siemens, Gas Natural and Suez were about a less fundamental procedural requirement: a mere preliminary step for accessing arbitration, ie waiting periods and comparable admissibility requirements;
  • by contrast, Salini, Plama and Telenor dealt with core matters252 —basically an extension of jurisdiction—which could easily have been categorised as ‘public policy provisions’ following Maffezini. In all these cases a radical effect was intended by the claimant: in the words of Plama, to replace the dispute resolution clause in the basic treaty in toto by a dispute resolution mechanism from a third treaty.253

 

However, more recently, there have been cases which departed from the aforementioned differentiation.254 Therefore two authors have also spoken of the jurisprudence incostante of the MFN clause.255

8. The procedural needs perspective

Procedural needs may come into conflict with the consensual nature of arbitration, but parallel proceedings leading to conflicting arbitral awards should be avoided. This is particularly true in investment arbitration where the same State’s measure may affect more people and in ICSID arbitrations where the possibilities of review are limited, because conflicting arbitral awards escape any further remedy by national courts.

8.1. Commercial arbitration

Joinder of third parties or their intervention in the proceedings is well known in national courts. In national courts, for reasons of efficient administration of justice, procedural laws contain provisions allowing the joinder or intervention of third parties, irrespective of whether all parties concerned agree.256 The same needs may arise in arbitral proceedings.257 However, joinder or intervention in arbitrations is generally only possible if all parties involved (including, therefore, the joining third party) and the arbitral tribunal consent.258 The consent of all parties is necessary because of the contractual nature of arbitration and its confidentiality.259 Consolidation denotes the act or process of uniting several arbitrations which are pending or initiated into a single set of proceedings before the same arbitral tribunal.260 The need for consolidation is often said to be most acute in maritime and construction arbitration.261 Nevertheless, while consolidation has several advantages,262 like prevention of inconsistent awards,263 procedural efficiency as well as saving of time and money,264 it also presents disadvantages,265 such as the constitution of the arbitral tribunal,266 the distribution of costs267 and issues of confidentiality.268 However, probably the strongest criticism is that compelling consolidation without the consent of the parties involved directly undermines the freedom of contract that forms the basis of an arbitration agreement.269 This aspect is, along with confidentiality, the main reason most countries have not adopted provisions on the consolidation of related arbitral proceedings.270 In fact, it is believed that this constitutes an infringement of the rights of the parties to have their disputes settled in private according to their will.271 For the same reason, arbitration institutions are rather reluctant to consolidate proceedings.272

In situations where the arbitration rules provide for joinder and consolidation provisions, the disputing parties sometimes indirectly express their consent to arbitrate in cases of joinder and consolidation by adopting the arbitration rules. This is for instance the case for parties who choose the Swiss Rules of International Arbitration.273 While the Swiss Rules of International Arbitration274 and the CEPANI Arbitration Rules275 make no differentiation between consolidation of arbitrations between different parties and consolidation of arbitrations between the same parties, under the SCC Arbitration Rules (2010) the possibility of consolidation only exists where the two arbitrations involve the ‘same parties’.276 The new ICC Rules of Arbitration (2012) also contain provisions on joinder of additional parties277 and consolidation of arbitrations.278 However, according to the ICC Rules of Arbitration, all parties must have consented or be bound by the same arbitration agreement. Moreover, consolidation is also possible where the claims in the arbitrations are made under more than one arbitration agreement, the arbitrations are between the same parties, the disputes in the arbitrations arise in connection with the same legal relationship, and the ICC Court finds the arbitration agreements to be compatible. The ICC Rules of Arbitration therefore follow rather a consensual approach: indirect consent to joinder and consolidation through the adoption of the arbitration rules seems not to be sufficient.279 The same is true for consolidations under the CIETAC Arbitration Rules (2012). Indeed, the agreement of all parties is also necessary for requests to consolidate two or more arbitrations pending under the CIETAC Arbitration Rules into a single arbitration.280

The national laws dealing with consolidation have adopted different solutions. The English Arbitration Act 1996281 for instance does not really allow for consolidation without the express consent of the parties. On the other hand the Netherlands Code of Civil Procedure (‘CCP’)282 permits the national courts to compel consolidation. In the latter case it is however less clear whether the parties have consented to consolidation, even though it might be argued that they have done so by choosing the seat of arbitration in the Netherlands. Yet a provision like the Dutch one may possibly pose problems with regard to the recognition and the enforcement of awards.283 Another solution has been adopted by the Hong Kong Arbitration Ordinance (2010) which permits the parties to ‘opt into’ the provision—section 2 of Schedule 2—giving the Court of First Instance of the High Court the power to consolidate arbitrations where certain conditions are satisfied.284 While some further countries have also dealt with consolidation,285 most national laws have not.286

8.2. Investment arbitration

One peculiar feature of NAFTA arbitrations is the right to request consolidation if a controversial State measure affects several investors under Article 1126 of the NAFTA.287 Article 1126 of the NAFTA provides that a disputing party, whether a State party or an investor, may request the establishment of a special tribunal by the Secretary General of ICSID, pursuant to the UNCITRAL Arbitration Rules, to hear a request to consolidate claims.288 North American Model BITs289 and free trade agreements290 follow the NAFTA example with regard to consolidation.291 Similarly to Article 1126 of the NAFTA, the new BIT practice provides for consolidation of multiple claims which arise from a same fact, usually a State measure which is alleged to be in breach of the State’s obligations, only upon application by a disputing party.292

While the consolidation of related commercial arbitrations remains in principle293 fully dependent on the consent of all the parties involved,294 the consolidation of related investment arbitrations295 may be achieved by a tribunal’s binding order, as the guiding consolidation principles in international investment law are the unity of the economic transaction affected by a same State measure.296 The reason for this differentiation is that a State should be able to legitimately rely on its superior interest not to be judged twice for the same action or omission.297 Furthermore, the situation of conflicting awards in investment arbitration is different from the one in commercial arbitration. Conflicting awards rendered in commercial arbitration may receive judicial redress in the annulment or enforcement phase, whereas the annulment of ICSID awards by domestic courts is excluded by the ICSID Convention and their enforcement is immediate and does not allow for any judicial control over the award as such.298

It has been observed that in investment treaty arbitration the consolidation provisions rest on a treaty regime that is consented to by all the parties involved. Therefore, even though consolidation results from an order induced by one of the parties which is finally binding upon all other parties and on previously established tribunals, consolidation ultimately remains a consensual mechanism.299 This view requires some refinement, however. While it is true that the State parties consent to consolidation by signing the investment treaties or the free trade agreements, the situation is different for the investors. Indeed, although it might be said that they consent to the eventuality of consolidation by beginning the arbitration proceeding,300 on the other hand one may question whether they really have an alternative to arbitration when they wish to have a neutral dispute resolution forum which decides their dispute.301

9. Conclusion

The consensual nature of international arbitration has different facets. These different facets lead to a changing perception of the consensual nature of arbitration. One of the reasons— possibly the most important—that the consensual nature of arbitration has evolved over time and the reason it seems to be different among the various fields of arbitration might be the fact that there is an inherent tension between the contractual and the jurisdictional side of arbitration. In other words, there is a tension between the quasi-judicial role of the arbitrator, as an alternative to the local judge and with the acceptance of local law,302 and the fact that arbitration rests on an arbitration agreement being thus created by the will and consent of the parties.303

Consent is not a dogma which should be abandoned.304 Rather, the qualification of arbitration as a ‘consensual’ dispute resolution mechanism needs to be differentiated and reconciled with the jurisdictional side of arbitration. To speak of marginalization of consent is also risky, because it gives the impression that the importance of consent is declining. On the other hand this observation has the merit to remind us that the jurisdictional side should not be forgotten. Indeed arbitration should ‘be reconciled with its jurisdictional side, which is as important and practically relevant as its contractual nature’.305 In other words, as it is not fully settled whether arbitration is of a contractual, jurisdictional, or mixed nature, one should not unduly favour the contractual over the jurisdictional element.306 The idea of a modern approach to consent307 is a very useful one, because it shows that an evolution has taken place. But the evolution has been of arbitration as a dispute resolution mechanism; the concept of consent has rather adapted to this evolution. Indeed, with the appearance of complex multiparty situations and investment arbitration the face of arbitration and its consensual nature has undergone a process of transformation. Nowadays, the selection of arbitration is no longer seen as an exclusion of the national forum, but rather the natural forum for international disputes.308

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Endnotes

* PhD Queen Mary, University of London (School of International Arbitration), Attorney-at-law (Bar of Berne, Switzerland), LLM (Edinburgh), MA HSG (St Gallen, Switzerland). Email: amsteingruber@hotmail.com

1On consent in international arbitration see, eg O Diallo, Le consentement des parties à l’arbitrage international, (PUF 2010); K Youssef, Consent in context: Fulfilling the promise of international arbitration, Multiparty, Multi-Contract, and Non-Contract Arbitration, (Thomson Reuters 2011); AM Steingruber, Consent in international arbitration, (OUP 2012).

2 At least when the forum of litigation is not based on a jurisdictional clause.

3See Article II(1) of the New York Convention which states: ‘Each Contracting State shall recognise an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration’.

4 Youssef (n 1 above) 3.

5 SL Brekoulakis, Third Parties in International Commercial Arbitration, (OUP, Oxford 2010) para 1.11.

6 Youssef (n 1 above) 3.

7 See, eg G Kaufmann-Kohler and H Peter, ‘Formula 1 Racing and Arbitration: The FIA Tailor-Made System for Fast Track Dispute Resolution’, (2001) 17(2) Arbitration International 186.

8 Youssef (n 1 above) 53.

9 B Hanotiau, ‘Consent to Arbitration: Do We Share a Common Vision?’, (2011) 27(4) Arbitration International 554.

10 See Diallo (n 1 above).

11 On these different perspectives see Steingruber (n 1 above) paras 15.04 et seq.

12 T Várady, JJ Barceló III, and AT von Mehren, International Commercial Arbitration – A transnational Perspective, (3rd edn, Thomson West 2006) 85.

13 See also JDM Lew, LA Mistelis, and SM Kröll, Comparative International Commercial Arbitration, (Kluwer Law International 2003) para 6-1.

14 ibid.

15 See eg for the United States: ‘Under federal law, arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit’ (internal quotation marks omitted) quoted in Republic of Ecuador v Chevron 638 F 3d 384 (2d Cir 2011) citing AT&T Techs, Inc v Commc’ns Workers of Am 475 US 643, 648 (S Ct 1986). See also AA Mezgravis, ‘The Standard of Interpretation Applicable to Consent and its Revocation in Investment Arbitration’, (2011) 2 Transnational Dispute Management 15, footnote 42.

16 See, eg Republic of Ecuador v Occidental Exploration and Production Co [2005] EWCA Civ 1116, paras 32 et seq.

17 See, eg James Crawford, Zachary Douglas, Christoph Schreuer.

18 The Swiss Private International Law Act (‘Swiss PILA’) is one of the exceptions, as it does not provide for a definition of the arbitration agreement. See also Werner Wenger in Basler Kommentar, Internationales Privatrecht, H Honsell and others (eds), (2nd edn, Helbing & Lichtenhahn 2007) para 3 at Article 178 Swiss PILA.

19 J-F Poudret and S Besson, Comparative Law of International Arbitration, (2nd edn, Schulthess 2007) para 149.

20 Article 7 UNCITRAL Model Law on International Commercial Arbitration provides that an ‘“Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not’.

21 By virtue of the required agreement of the parties.

22 By virtue of conferring jurisdiction upon the arbitration tribunal.

23 JDM Lew, ‘The Law Applicable to the Form and Substance of the Arbitration Clause’, in ICCA Congress Series No 9 (Paris 1998), A van den Bergh (ed), (Kluwer Law International 1999) 114 et seq.

24 Lew and others (n 13 above) para 6-2.

25 See JDM Lew, ‘Achieving the Dream: Autonomous Arbitration’, (2006) 22(2) Arbitration International 186.

26 On the effects of arbitration agreements see also Steingruber (n 1 above) paras 5.68 et seq.

27 Lew (n 23 above) 125.

28 Lew and others (n 13 above) para 7-81.

29 See, eg Lew (n 23 above) 125.

30 Lew and others (n 13 above) para 7-81.

31 Lew (n 23 above) 127.

32 N Blackaby, C Partasides, A Redfern, and JM Hunter, Redfern and Hunter on International Arbitration, (OUP 2009) para 2-01.

33 See also Blackaby and others (n 32 above) para 1-52.

34 Várady and others (n 12 above) 92. With regard to the form requirements of the English Arbitration Act 1996, see in particular T Landau,‘The Requirement of a Written Form For an Arbitration Agreement: When “Written” Means “Oral”’ in ICCA Congress Series No 9 (London 2002), A van den Bergh (ed), (Kluwer Law International 2003) 19, and with regard to the form requirements of Article II of the New York Convention T Landau, S Moollan, ‘Article II and the Requirement of Form’, in E Gaillard, D Di Pietro (eds), Enforcement of arbitration agreements and international arbitral awards, The New York Convention in practice, (Cameron May 2008) 189.

35 Poudret and Besson (n 19 above) para 4.

36 Lew and others (n 13 above) para 5-21.

37 Poudret and Besson (n 19 above) para 4.

38 On unilateral arbitration, see, eg A Prujiner, ‘L’arbitrage unilatéral: un coucou dans le nid de l’arbitrage conventionnel?’, (2005) 1 Revue de l’arbitrage 63.

39 Poudret and Besson (n 19 above) para 4.

40 See Lew and others (n 13 above) para 5-21.

41 On the multiple facets of the term ‘consent’ see Steingruber (n 1 above) paras 5.01 et seq.

42 C Jarrosson, ‘Les frontières de l’arbitrage’, (2001) 1 Revue de l’arbitrage 21 prefers to use the adjective ‘volontaire’ instead of ‘conventionnel’, because it is more precise to include the type of arbitration based on a last will which is contained in a testament.

43 See ibid 20. On ‘consensual’ as a criterion of arbitration’s qualification see Steingruber (n 1 above) paras 5.07 et seq.

44 See eg MJ Mustill, SC Boyd, The Law and Practice of Commercial Arbitration in England, (2nd edn, Butterworths 1989) 31.

45 See also A Rigozzi, L’arbitrage international en matière de sport, (Helbing & Lichtenhahn 2005) para 463.

46 See C Jarrosson, La notion d’arbitrage, (LGDJ 1987) 228. In particular, the US courts have consistently held that arbitration agreements must be interpreted in favour of arbitration, as was the case in Mitsubishi Motors Corp v Soler Chrysler Plymouth Inc, 473 US 614, 105 S Ct 3346, 3355 (1985).

47 See PA Karrer, C Kälin-Nauer, ‘Is there a Favor Iurisdictionis Arbitri? Standards of Review of Arbitral Jurisdiction Decisions in Switzerland’, (1996) 13(3) Journal of International Arbitration 31; H Raeschke-Kessler, KP Berger, Recht und Praxis des Schiedsverfahrens, (3rd edn, RWS Verlag Kommunikationsforum 1999) paras 282 et seq; Lew and others (n 13 above) para 7-61.

48 P Lalive, J-F Poudret, and C Reymond, Le droit de l’arbitrage interne et international en Suisse, (Editions Payot 1989) 270.

49 Jarrosson (n 42 above) 20.

50 On the expression of consent to arbitration see Steingruber (n 1 above) paras 5.13 et seq.

51 See also R Dolzer and C Schreuer, Principles of International Investment Law, (OUP 2008) 238.

52 See, eg Article 24(1)(a) of the US Model BIT (2012): ‘The claimant, on its own behalf, may submit to arbitration under this Section a claim …’.

53 B Stern, ‘Le consentement à l’arbitrage CIRDI en matière d’investissement international: que disent les travaux préparatoires?’, in Souveraineté étatique et marchés internationaux à la fin du 20ème siècle – Mélanges en l’honneur de Philippe Kahn, (Litec 2000) 241.

54 On consent to arbitration as reaching of mutual consent see Steingruber (n 1 above) paras 5.43 et seq.

55 See Article 2.1.1. of the Unidroit PICC whose relevant part states: ‘A contract may be concluded … by conduct of the parties … that is sufficient to show agreement’.

56 T Várady, ‘The Standing of Arbitration within the Legal System’, in Law & Reality: Essays on National and International Procedural Law (Mathilde Sumampouw, 1995) 351­­–352, reproduced in Várady and others (n 12 above) 38; and http://www.icj-cij.org/court/index.php?p1=1&p2=1 (last accessed 12 September 2012). The thesis was also developed that arbitration stays at the origin of State justice. This view is the one of B Matthiass, ‘Die Entwicklung des römischen Schiedsgerichts’ in Festgabe der Rostocker Juristenfakultät zum 50jährigen Doktorjubiläum von Bernard Windscheid, (Commissions-Verlag der Stiller’schene Hof- und Universitätsbuchhandlung, Rostock 1988), and M Wlassak, author of a number of monographs, in particular Die Litiskontestation im Formularprozess, (Duncker & Humblot 1889), and Der Judikationsbefehl der römischen Prozesse, (Alfred Hölder 1921).

57 See MJ Mustill, ‘Arbitration: History and Background’, (1989) 6(2) Journal of International Arbitration 43.

58 Ibid.

59 Kaufmann-Kohler and Peter (n 7 above) 186.

60 On the evolution of arbitration and its consensual nature see Steingruber (n 1 above) Chapter 2.

61 See Rigozzi,(n 45 above) paras 315 et seq.

62 See also TE Carbonneau, Cases and materials on the law and practice of arbitration, (2nd edn, Juris Publishing 2000) 25.

63 See Steingruber(n 1 above) para 5.46.

64 On arbitrability see LA Mistelis, SL Brekoulakis (eds), Arbitrability: International and Comparative Perspectives, (Kluwer Law International 2009).

65 Particularly noteworthy has been the development in France with regard to Article 2060 of the French Civil Code. On this development in France see, eg J-L Delvolvé, GH Pointon, and J Rouche, French Arbitration Law and Practice: A Dynamic Civil Law Approach to International Arbitration, (2nd edn, Kluwer Law International 2009) para 71. For some decisions of arbitral tribunals see, eg GB Born, International Commercial Arbitration, (Kluwer Law International 2009) 633, footnote 382.

66 On the two sides of the host State’s consent in investment arbitration see Steingruber (n 1 above) paras 5.40 et seq.

67 See J Paulsson, ‘Arbitration without Privity’, (1995) 10(2) ICSID Review-FILJ 234.

68 See, eg Lew and others (n 13 above) paras 28-8 et seq.

69 Carbonneau (n 62 above) 41.

70 Brekoulakis (n 5 above) para 1.11.

71 Youssef (n 1 above) 3.

72 On consent expressed by conduct see Hanotiau (n 9 above) 547 et seq.

73 On consent to arbitration with a perceived reduced consensual character see Steingruber (n 1 above) Chapter 8.

74 On unilateral clauses in the financial field, see WW Park, ‘Making Sense of Financial Arbitration, in Arbitration, Finance and Insurance’– Special Supplement 2000, (ICC International Court of Arbitration Bulletin 2000) 11 et seq.

75 On clauses incorporated by reference see in particular D Di Pietro, ‘Incorporation of Arbitration Clauses by Reference’, (2004) 21(5) Journal of International Arbitration 439, and D Di Pietro, ‘Validity of Arbitration Clauses Incorporated by Reference’, in E Gaillard and D Di Pietro (eds), Enforcement of arbitration agreements and international arbitral awards, The New York Convention in practice, (Cameron May 2008).

76 See, eg Article 62 of the Fédération Internationale de Football Association (FIFA) Statutes (2011) with the heading ‘Court of Arbitration for Sport (CAS)’.

77 BITs have proliferated over the last three decades: Lew and others (n 13 above) para 5-5. At the end of 2008 there were 2,676 BITs (see UNCTAD, ‘Recent Developments in International Investment Agreements (2008-June 2009)’, IIA Monitor No 3 (2009), available under: http://www.unctad.org/iia/series (last accessed 12 September 2012).

78 See, eg NAFTA and ECT. For further examples of multilateral investment treaties or instruments, see, eg M Lalonde, ‘The Evolving Definition of Arbitration and Arbitrability’, in ICCA Congress Series No 9 (Paris 1998), A van den Bergh (ed), (Kluwer Law International 1999) 190-191, and BM Cremades, ‘Arbitration in Investment Treaties: Public Offer of Arbitration in Investment-Protection Treaties’, in Law of International Business and Dispute Settlement in the 21st Century, Liber Amicorum Karl-Heinz Böckstiegel, (Carl Heymanns Verlag 2001) 160-161.

79 Lalonde (n 78 above) 189-190.

80 J Werner, ‘The Trade Explosion and Some Likely Effects on International Arbitration’, (1997) 14(2) Journal of International Arbitration 6.

81 Paulsson (n 67 above) 234.

82 Werner (n 80 above) 6.

83 See G Van Harten, Investment Treaty Arbitration and Public Law, (OUP 2006) 99 et seq.

84 See, eg GR Delaume, ‘ICSID and Bilateral Investment Treaties’, (1985) 2(1) News from ICSID 14.

85 See, eg the decisions of the Swiss Federal Tribunal: Republic of Poland v Saar Papier,Decision of the Federal Tribunal (DFT) 1P.113/2000, 20 September 2000, (2001) 19(3) ASA Bulletin 487; Czech Republic v Saluka,DFT 4P.114/2006, 7 September 2006, (2007) 25(1) ASA Bulletin 123. On these cases see in particular M Scherer, V Heiskanen, S Moss, ‘Domestic Review of Investment Treaty Arbitrations: The Swiss Experience’, (2009) 27(2) ASA Bulletin 256 and also AM Steingruber, ‘Bilateral Investment Treaties: The Agreement to Arbitrate between Investor and Host State in the Eyes of State Courts’, (2011) 1 Transnational Dispute Management.

86 See Steingruber (n 1 above) paras 2.59 et seq.

87 On expression of consent by performance see Steingruber (n 1 above) paras 5.31 et seq.

88 See in general for contract law HG Beale, WD Bishop, and MP Furmston, Contract Cases & Materials, (5th edn, OUP 2008) 208.

89 Youssef (n 1 above) 68.

90 On unilateral clauses in the financial field, see Park (n 74 above) 11 et seq.

91 Z Abdulla, ‘The Arbitration Agreement’, in G Kaufmann-Kohler, B Stucki, International Arbitration in Switzerland, A Handbook for Practitioners, (Kluwer Law International 2004) 18 with references to Poudret and Besson (n 19 above) paras 155-156, and W Wenger in Basler Kommentar, Internationales Privatrecht, H Honsell and others (eds), (2nd edn, Helbing & Lichtenhahn 2007), paras 28 et seq, and Article 178 Swiss PILA. See also eg DFT 129 III 675.

92 See, eg B Berger and F Kellerhals, International and domestic arbitration in Switzerland, (2nd edn, Sweet & Maxwell/Stämpfli Verlag 2010) paras 270 et seq.

93 On the substantive elements of consent to arbitration see Steingruber(n 1 above) paras 6.53 et seq.

94 Lew and others (n 13 above) para 28-11.

95 E Obadia, ‘ICSID, Investment Treaties and Arbitration: Current and Emerging Issues’, in Investment Treaties and Arbitration, (2002) 19 ASA Special Series 69.

96 N Blackaby, ‘Investment Arbitration and Commercial Arbitration (or the Tale of the Dolphin and the Shark)’, in LA Mistelis and JDM Lew (eds), Pervasive Problems in International Arbitration, (Kluwer Law International 2005), para 11-12.

97 See, eg Article 9(2) of the Chinese Model BIT (2003).

98 See, eg Article 1121 of the NAFTA or Article 26(2) of the US Model BIT (2012).

99 See, eg Article 8(1) of the UK Model BIT (2005), Alternative version.

100 Dolzer and Schreuer (n 51 above) 239; with reference to ICSID; see also United Nations Conference on Trade and Development (UNCTAD), Dispute Settlement, International Centre for Settlement of Investment Disputes, Module prepared by C Schreuer, (United Nations 2003) 7. On consent through direct agreement between the parties see Steingruber (n 1 above) paras 11.32 et seq.

101 Cremades (n 78 above) 157.

102 Dolzer and Schreuer (n 51 above) 239. See Amco v Indonesia, Decision on Jurisdiction, 25 September 1983, 1 ICSID Reports 392.

103 UNCTAD (n 100 above) 9. See CSOB v Slovak Republic, ICSID Case No ARB/97/4, Decision on Jurisdiction, 24 May 1999, (1999) 14(1) ICSID Review-FILJ 251, 268-271.

104 Dolzer and Schreuer (n 51 above) 239. See Duke Energy v Peru, ICSID Case No ARB/03/28, Decision on Jurisdiction, 1 February 2006, paras 119-134, 131.

105 On consent through host State (national) investment legislation see Steingruber (n 1 above) paras 11.37 et seq.

106 UNCTAD (n 100 above) 11.

107 See M Hirsch, The Arbitration Mechanism of the International Centre for the Settlement of Investment Disputes, (Martinus Nijoff Publishers 1993) 51.

108 C Schreuer, The ICSID Convention – A Commentary, (Cambridge University Press 2001) para 259 at Article 25. See also M Potestà, ‘The Interpretation of Consent to ICSID Arbitration Contained in Domestic Investment Laws’, (2011) 27(2) Arbitration International 154.

109 See, eg Article 5 of Togo’s Investment Code (Law No 89–22 of 31 October 1989); Article 21 of Mali’s Law No 91–048/AN-RM of 26 February 1991 on Bearing on Investment Law, Investment Laws of the World; Article 24 of Law No 95–620 of 3 August 1995 on the Investment Code of the Republic of Côte d’Ivoire; Article 38 of the Code des Investissements of the Democratic Republic of Congo (Law No 004/2004 of 21 February 2002). For the wording of the provisions, see Potestà (n 108 above) footnote 29.

110 Potestà (n 108 above) 154.

111 Lew and others (n 13 above) para 28-15. Emphasis added.

112 On consent through investment treaties see Steingruber (n 1 above) paras 11.44 et seq.

113 See Cremades (n 78 above) 157.

114 Hirsch (n 107 above) 54.

115 See Lew and others (n 13 above) para 28-22 for BITs.

116 Cremades (n 78 above) 162.

117 M Blessing, ‘The Law Applicable to the Arbitration Clause’, in ICCA Congress Series No 9 (Paris 1998), A van den Bergh (ed), (Kluwer Law International 1999) 185.

118 J Crawford, ‘Treaty and Contract in Investment Arbitration’, (2008) 24(3) Arbitration International 361.

119 Republic of Ecuador v Occidental Exploration and Production Co [2005] EWCA Civ 1116, [32]–[33].

120 Common Market of the Southern Cone pursuant to the Treaty of Asunción of 26 March 1991.

121 See UNCTAD(n 100 above) 23-24.

122 The ICSID Convention itself does not offer consent to arbitration: see eg Dolzer and Schreuer (n 51 above) 243.

123 Cremades (n 78 above) 160.

124 See, eg Article X of the 1987 ASEAN Agreement for the Promotion and Protection of Investments.

125 C Schreuer, L Malintoppi, A Reinisch, and A Sinclair, The ICSID Convention, A Commentary, (2nd edn, Cambridge University Press 2009), paras 464 et seq at Article 25.

126 Lew and others (n 13 above) para 28-35.

127 Ibid.

128 See Steingruber (n 1 above) paras 7.05 et seq.

129 Lew and others (n 13 above) para 8-13.

130 Blackaby and others (n 32 above) para 2.57.

131 See ICC recommended arbitration clause.

132 Found in the LCIA, ICSID, SIAC and HKIAC recommended clauses.

133 See, eg standard clause of the Japanese Commercial Arbitration Association.

134 See similarly ‘dispute, controversy or claim’ in AAA, ICDR, HKIAC, WIPO, SCC Clauses.

135 See, eg standard clause of ICC, LCIA, SIAC.

136 Lew and others (n 13 above) para 8-14.

137 LCIA standard clause.

138 Lew and others (n 13 above) para 8-15.

139 See Steingruber (n 1 above) paras 7.09 et seq.

140 Ibid.

141 On counterlaims in investment arbitration, see P Lalive and L Halonen, ‘On the Availability of Counterclaims in Investment Treaty Arbitration’, in AJ Bělohlávek and N Rozehnalová (eds), Rights of the Host States within the System of International Investment Protection, Czech Yearbook of International Law, Vol II (Juris Publishing 2011); JE Kalicki and MB Silberman, ‘Case Comment, Spyridon Roussalis v Romania’, ICSID Case No ARB/06/1, Award, 7 December 2011, (2012) 27(1) ICSID Review-FILJ 9; and also Steingruber (n 1 above) paras 14.13 et seq.

142 See Steingruber (n 1 above) paras 14.04 et seq.

143 UNCTAD (n 100 above) 29.

144 See, eg Albania Law on Foreign Investments, 1993, Article 8(2); El Salvador Foreign Investment Law 1988, Article 21; Botswana Settlement of Investment Disputes (Convention) Act 1970, section 11.

145 See, eg Papua New Guinea Investment Disputes Convention Act 1978, section 2.

146 Schreuer (n 108 above) para 353 at Article 25.

147 See Tradex v Albania, ICSID Case No ARB/94/2, Decision on Jurisdiction, 24 December 1996, (1999) 14(1) ICSID Review-FILJ 161, 174. UNCTAD (n 100 above) 29.

148 See Dolzer and Schreuer (n 51 above) 246. A provision that is typical for US BITs is contained in Article VII of the Argentina–US BIT of 1991.

149 See, eg Article 9 of the BIT between El Salvador and the Netherlands: ‘disputes which arise within the scope of this agreement between one Contracting Party and the investor of the other Contracting Party concerning an investment’.

150 Dolzer and Schreuer (n 51 above) p 246.

151 Schreuer (n 108 above) para 355 at Article 25.

152 Z Douglas, The International Law of Investment Claims, (Cambridge University Press 2009) para 478.

153 The Russian Federation adopted a completely different approach to its consent to investment treaty arbitration than the USSR in the past: While of the 11 BITs signed by the USSR 9 provide for limited consent to investor–State arbitration, in each of the BITs signed by the Russian Federation the consent to investor–State arbitration is expressed in the widest terms. The same development has occurred in China later, as from 2000 (Douglas (n 152 above) paras 485 et seq).

154 Dolzer and Schreuer (n 51 above) 246.

155 See also Dolzer and Schreuer (n 51 above) 244.

156 Schreuer (n 108 above) para 348 at Article 25.

157 UNCTAD (n 100 above) 29.

158 See Schreuer (n 108 above) para 89 at Article 25.

159 For an overview about the ‘Nationality of Individuals’, see Dolzer and Schreuer (n 51 above) 47 et seq; and about the ‘Nationality of Corporations’, see Dolzer and Schreuer (n 51 above) 49 et seq.

160 Dolzer and Schreuer (n 51 above) 46.

161 On these two aspects see Steingruber (n 1 above) paras 13.62 et seq.

162 This became an issue in Tokios Tokelés v Ukraine, ICSID Case No ARB/02/18, Decision on Jurisdiction, 29 April 2004.

163 Autopista Concesionada de Venezuela, CA v Bolivarian Republic of Venezuela, ICSID Case No ARB/00/5, Award on Jurisdiction, 27 September 2001, (2001) 16(2) ICSID Review-FILJ 469, para 64.

164 G Kaufmann-Kohler, ‘Interpretation of Treaties: How do arbitral tribunal interpret dispute settlement provisions embodied in investment treaties?’, in LA Mistelis and JDM Lew (eds), Pervasive Problems in International Arbitration, (Kluwer Law International 2005) para 13-13.

165 See Prosper Weil in his dissenting opinion (29 April 2004) in Tokios Tokelés v Ukraine, ICSID Case No ARB/02/18 (Kaufmann-Kohler (n 164 above) para 13-13).

166 Dolzer and Schreuer (n 51 above) 233.

167 F Yala, ‘The Notion of “Investment” in ICSID Case Law: A Drifting Jurisdictional Requirement?, Some “Un-Conventional” Thoughts on Salini, SGS and Mihaly’, (2005) 22(2) Journal of International Arbitration, 105.

168 On the different ways of defining ‘investment’ see Steingruber (n 1 above) paras 13.31 et seq.

169 Salini Costruttori SpA et Italstrade SpA v Morocco, ICSID Case No ARB/00/4, Decision on Jurisdiction, 23 July 2001, Clunet 196 (2002), 42 ILM (2003) 609, para 53; SGS v Pakistan, ICSID Case No ARB/01/13, Decision on Jurisdiction, 6 August 2003, 8 ICSID Reports 406, para 133, fn 113; Joy Mining Machinery Ltd v Egypt, ICSID Case No ARB/03/11, Award on Jurisdiction, 6 August 2004, paras 53, 57, 62; AES Corporation v Argentina, ICSID Case No ARB/02/17, Decision on Jurisdiction, 26 April 2005, para 88; Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Pakistan, ICSID Case No ARB/03/29, Decision on Jurisdiction, 14 November 2005, paras 130-138; Jan de Nul NV and Dredging International NV v Arab Republic of Egypt, ICSID Case No ARB/04/13, Decision on Jurisdiction, 16 June 2006, paras 90-96.

170 Dolzer and Schreuer (n 51 above) 233. The four criteria are considered to be embodied in Article 25 of the ICSID Convention. After having been clearly restated in Salini v Morocco and having also been applied in subsequent decisions, the application of these criteria is now generally referred to as the Salini test (Dolzer and Schreuer, (n 51 above) 68). On the notion of ‘investment’, see also N Rubins, ‘The Notion of “Investment” in International Investment Arbitration’, in N Horn, SM Kröll (eds), Arbitrating Foreign Investment Disputes. Procedural and Substantive Legal Aspects, (Kluwer Law International 2004).

171 Fedax NV v Republic of Venezuela, ICSID Case No ARB/96/3, Decision on Jurisdiction, 11 July 1997, and Award, 9 March 1998, 37 ILM 1378 (1998), XXIVa YBCA 23 (1999).

172 Salini v Morocco, ICSID Case No ARB/00/4, Decision on Jurisdiction, 23 July 2001, para 52.

173 See, eg Phoenix Action Ltd v The Czech Republic, ICSID Case No ARB/06/5, Award, 9 April 2009, para 83.

174 L Reed, J Paulsson, and N Blackaby, A Guide to ICSID Arbitration, (Kluwer Law International 2004), 68 et seq.

175 RSM Production Corporation v Grenada, ICSID Case No ARB/05/14, Award, 13 March 2009, para 241, cited by Reed and others, (n 174 above) 69.

176 Reed and others (n 174 above) p 69, citing MCI Power Group LC and New Turbine, Inc v Republic of Ecuador, ICSID Case No ARB/03/6, Award, 31 July 2007, para 165. See also Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania, ICSID Case No ARB/05/22, Award, 24 July 2008; Malaysian Historical Salvors, Sdn, Bhd v Government of Malaysia, ICSID Case No ARB/05/10, Decision on the Application for Annulment, 16 April 2009; Pantechniki SA Contractors & Engineers v Republic of Albania, ICSID Case No ARB/07/21, Award, 30 July 2009.

177 Consortium Groupement LESI—DIPENTA v Popular Democratic Republic of Algeria, ICSID Case No ARB/03/08, Award, 10 January 2005; Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Islamic Republic of Pakistan, ICSID Case No ARB/03/29, Decision on Jurisdiction, 14 November 2005; Victor Pey Casado and President Allende Foundation v Republic of Chile, ICSID Case No ARB/98/2, Award, 8 May 2008, cited by Reed and others (n 174 above) 69.

178 Salini Costruttori SpA and Italstrade SpA v Kingdom of Morocco, ICSID Case No ARB/00/4, Decision on Jurisdiction, 23 July 2001; Jan de Nul NV and Dredging International NV v Arab Republic of Egypt, ICSID Case No ARB/04/13, Decision on Jurisdiction, 16 June 2006; Saipem SpA v People’s Republic of Bangladesh, ICSID Case No ARB/05/07, Decision on Jurisdiction and Recommendation on Provisional Measures, 21 March 2007; Ioannis Kardassopoulos v Georgia, ICSID Case No ARB/05/18, Decision on Jurisdiction, 6 July 2007, cited by Reed and others (n 174 above) 69.

179 Joy Mining Machinery Ltd v Arab Republic of Egypt, ICSID Case No ARB/03/11, Award on Jurisdiction, 6 August 2004; Helnan International Hotels A/S v Arab Republic of Egypt, ICSID Case No ARB/05/19, Decision on Jurisdiction, 17 October 2006, cited by Reed and others (n 174 above) 69.

180 Phoenix Action, Ltd v Czech Republic, ICSID Case No ARB/06/5, Award, 15 April 2009, cited by Reed and others (n 174 above) 69.

181 Abaclat and Others v The Argentine Republic, ICSID Case No ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011. The dissenting opinion of Georges Abi-Saab is dated 28 October 2011. For comments on different issues which have arisen in the Abaclat case see the forthcoming (2012) 27(2) ICSID Review-FILJ.

182 Ibid, paras 363 et seq.

183 Ibid, para 364.

184 C McLachlan, L Shore, and M Weiniger, International Investment Arbitration, Substantive Principles, (OUP 2007) para 6.23, citing Schreuer (n 108 above) 125.

185 McLachlan and others (n 184 above) para 6.23.

186 Fedax NV v Republic of Venezuela, ICSID Case No ARB/96/3, Decision on Jurisdiction, 11 July 1997, and Award, 9 March 1998, 37 ILM 1378 (1998), XXIVa YBCA 23 (1999).

187 Lew and others (n 13 above) para 28–61.

188 Abaclat and Others v Argentina, ICSID Case No ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011, paras 362 et seq. On sovereign bonds in international arbitration see M Waibel, ‘Opening Pandora’s Box: Sovereign Bonds in International Arbitration’, (2007) 101 The American Journal of International Law 711 and on sovereign defaults before international courts and tribunals more in general see M Waibel, Sovereign Defaults before International Courts and Tribunals, (Cambridge University Press 2011).

189 Dolzer and Schreuer (n 51 above) 61.

190 ibid.

191 See CSOB v Slovak Republic, ICSID Case No ARB/97/4, Decision on Jurisdiction, 24 May 1999, para 68. See also Salini Costruttori v Morocco, Decision on Jurisdiction, 23 July 2003, 42 ILM 609 (2003), paras 44, 52.

192 Dolzer and Schreuer (n 51 above) 62.

193 Abaclat and Others v Argentina, ICSID Case No ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011, para 369, making reference for an overview regarding this issue to GEA Group Aktiengesellschaft v Ukraine, ICSID Case No ARB/08/16, Award, 31 March 2011, paras 137–143.

194 Abaclat and Others v Argentina, ICSID Case No ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011, para 370, making reference to Romak SA v The Republic of Uzbekistan (PCA Case No AA280), Award of 26 November 2009, paras 180 and 207.

195 Dolzer and Schreuer (n 51 above) 238.

196 1 ICSID Reports 28.

197 On extension of consent to arbitration by application of general principles of contract law or corporate law see Steingruber (n 1 above) paras 9.03 et seq.

198 On agency see, eg Brekoulakis (n 5 above) paras 2.76 et seq.

199 On assignment see in particular D Girsberger, C Hausmaninger, ‘Assignment of Rights and Agreement to Arbitrate’, (1992) 8(2) Arbitration International 121; S Jagusch, A Sinclair, ‘The Impact of Third Parties on International Arbitration – Issues of Assignment’, in LA Mistelis and JDM Lew (eds), Pervasive Problems in International Arbitration, (Kluwer Law International 2005), and JC Landrove, Assignment and Arbitration, A Comparative Study, (Schulthess 2009).

200 On subrogation see, eg Brekoulakis (n 5 above) para 2.69.

201 On third party beneficiaries see eg Brekoulakis (n 5 above) paras 2.143 et seq.

202 On universal succession see eg Poudret and Besson (n 19 above) para 290.

203 On extension of consent to non-signatories see Steingruber (n 1 above) paras 9.30 et seq.

204 On the doctrine of arbitral estoppel see in particular Brekoulakis (n 5 above) paras 4.03 et seq and JM Hosking, ‘Non-Signatories and International Arbitration in the United States: the Quest for Consent’, (2004) 20(3) Arbitration International 289.

205 On the doctrine of group of companies see in particular Brekoulakis (n 5 above) paras 5.04 et seq and B Hanotiau, ‘Groups of Companies in International Arbitration’, in LA Mistelis and JDM Lew (eds), Pervasive Problems in International Arbitration, (Kluwer Law International 2005).

206 Brekoulakis (n 5 above) para 1-72.

207 Lew and others (n 13 above) para 7-44.

208 See R David, L’arbitrage dans le commerce international, (Economica 1982), para 227; Raeschke-Kessler and Berger, (n 47 above) para 277; CA Paris, 25 March 1983, Société Sorvia v Weinstein International Disc Corp, Rev arb 363 (1984) 365; see also A & B v C & D [1982] Lloyd’s Rep 166. For the opposite case where the lack of an arbitration agreement in one contract led to an interpretation of a connected contract which struck out an arbitration agreement, see MH Alshaya Company WLL v RETEK Information Systems (2000) WL 33116470 (Lew and others (n 13 above) para 7-45) or the ICC Case No 7154, 121 Clunet 1059 (1994).

209 Maxum Foundation, Inc v Salus Corp, 779 F 2d 974, 978 (4th Cir 1985); Hart Enterprises Int, Inc v Anhui Provincial Import & Export Corp, 888 F Supp 587-591, XXI YBCA 767 (1996) (SDNY 1995).

210 See ICC Case No 8420, XXV YBCA 328 (2000) 338-340 (Lew and others (n 13 above) para 7-46).

211 Article 25(2)(b) of the ICSID Convention provides for that: ‘“National of another Contracting State” means: (b) …any juridical person which had the nationality of the Contracting State party to the dispute on that date and which, because of foreign control, the parties have agreed should be treated as a national of another Contracting State for the purposes of this Convention’.

212 See Steingruber (n 1 above) paras 13.84 et seq.

213 Two cases in which this issue arose were: Vacuum Salt Production Limited v Government of the Republic of Ghana, ICSID Case No ARB/92/1, 4 ICSID Reports 320 (1997) 346 and Tokios Tokelés v Ukraine, ICSID Case No ARB/02/18, Decision on Jurisdiction, 29 April 2004.

214 TSA Spectrum de Argentina SA v Argentine Republic, ICSID Case No ARB/05/5, Award, 19 December 2008.

215 Ibid, para 148.

216 On the growing importance of the State parties’ will in defining ‘investment’ see Steingruber, (n 1 above) paras 13.40 et seq. There is also a broad spectrum of alternative perspectives between these two main trends of thought. The most notable of these favours taking into account the criteria of the contribution to economic development of the host State or the growth of its patrimony (Yala (n 167 above) 106).

217 Yala (n 167 above) 106.

218 Fedax NV v Venezuela, ICSID Case No ARB/96/3, 11 July 1997, 37 ILM 1531 (1997); 126 Clunet 278 (1999).

219 CSOB v Slovak Republic, ICSID Case No ARB/97/4, Decision on Jurisdiction, 24 May 1999, (1999) 14(1) ICSID Review-FILJ 251; 5 ICSID Reports 329 (2003).

220 Yala, (n 167 above) 106.

221 Ceskoslovenska Obchodni Banka, AS (Czech Republic) v The Slovak Republic, ICSID Case No ARB/97/4, Decision on Objections to Jurisdiction, 24 May 1999, (1999) XXIVa YBCA 44, (1999) 14(1) ICSID Review-FILJ 250.

222 CSOB v Slovak Republic, ICSID Case No ARB/97/4, Decision on Jurisdiction, 24 May 1999, para 49.

223 Abaclat and Others v The Argentine Republic, ICSID Case No ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011. The dissenting opinion of Georges Abi-Saab is dated 28 October 2011.

224 Ibid, para 364.

225 On consent and jurisdiction ratione temporis see Steingruber (n 1 above) paras 13.109 et seq.

226 Schreuer and others (n 125 above) para 479 at Article 25.

227 See, eg Article 10 of the Netherlands Model BIT (1997).

228 See, eg South Africa Model BIT or Article II(2) of the Argentina-Spain BIT.

229 Jan de Nul v Egypt, ICSID Case No ARB/04/13, Decision on Jurisdiction, 16 June 2006.

230 Helnan v Egypt, ICSID Case No ARB 05/19, Decision on Jurisdiction, 17 October 2006.

231 M Weiniger, ‘Jurisdiction Challenges in BIT Arbitrations – Do you read a BIT by reading a BIT or by reading into a BIT’, in LA Mistelis, JDM Lew (eds), Pervasive Problems in International Arbitration, (Kluwer Law International 2005), para 4-40.

232 Dolzer and Schreuer (n 51 above) 153.

233 On umbrella clauses in relation to consent to arbitration see Steingruber (n 1 above) paras 12.77 et seq.

234 See, eg Kaufmann-Kohler (n 164 above).

235 SGS Société Générale de Surveillance SA v Islamic Republic of Pakistan, ICSID Case No ARB/01/13, Decision on Jurisdiction, 6 August 2003, (2003) 18(1) ICSID Review-FILJ 301; (2003) 42 ILM 1290.

236 SGS Société Générale de Surveillance SA v Republic of the Philippines, ICSID Case No ARB/02/6, Decision on Jurisdiction, 29 January 2004, (2004) 19 Mealey’s IAR 15.

237 See also R Dolzer, T Myers, ‘After Tecmed: Most-Favored-Nation Clauses in Investment Protection Agreements’, (2004) 19(1) ICSID Review-FILJ 49. See also Dolzer and Schreuer (n 51 above) 253.

238 See Article 1103 of the NAFTA; Article 10(7) of the ECT.

239 Dolzer and Schreuer (n 51 above) 253.

240 Kaufmann-Kohler (n 164 above) 269 et seq. On consent to arbitration and MFN clauses see also Steingruber (n 1) paras 14.25 et seq.

241 Emilio Augustín Maffezini v Kingdom of Spain, ICSID Case No ARB/97/7, Award, 13 November 2000, (2001) 16(1) ICSID Review-FILJ 248 and (2002) XXVII YBCA 13.

242 Kaufmann-Kohler (n 164 above) 270. On the Maffezini case see also R Teitelbaum, ‘Who’s Afraid of Maffezini? Recent Developments in the Interpretation of Most Favored Nation Clauses’, (2005) 22(3) Journal of International Arbitration.

243 Maffezini v Spain, ICSID Case No ARB/97/7, Award, 13 November 2000, para 63.

244 Siemens AG v Argentine Republic, ICSID Case ARB/02/8, Decision on Jurisdiction, 3 August 2004.

245 Gas Natural SDG, SA v Argentine Republic, ICSID Case ARB/03/10, Decision of the Tribunal on Preliminary Questions on Jurisdiction, 17 June 2005.

246 Suez, Sociedad General de Aguas de Barcelona SA & Interagua Servicios Integrales de Agua SA v Argentine Republic, ICSID Case ARB/03/17, Decision on Jurisdiction, 16 May 2006.

247 A Faya Rodriguez, ‘The Most-Favored-Nation Clause in International Investment Agreements – A Tool for Treaty Shopping? A Tool for Treaty Shopping?’, (2008) 25(1) Journal of International Arbitration 95.

248 Salini Costruttori SpA and Italstrade SpA v Hashemite Kingdom of Jordan, ICSID Case No ARB/02/13 2a, Decision on Jurisdiction, 29 November 2004.

249 Plama Consortium Ltd et al. v Republic of Bulgaria, ICSID Case No ARB/03/04, Decision on Jurisdiction, 8 February 2005.

250 Telenor Mobile Communications AS v Republic of Hungary, ICSID Case No ARB/04/15, Award, 13 September 2006.

251 B Poulain, ‘Clauses de la Nation la Plus Favorisée et Clauses d’Arbitrage Investisseur-Etat : Est-ce la Fin de la Jurisprudence Maffezini ?’, (2007) 25(2) ASA Bulletin 301.

252 Basically an extension of jurisdiction.

253 Faya Rodriguez (n 247 above) 95-96.

254 A more restrictive approach was eg taken in Wintershall Aktiengesellschaft v Argentine Republic, ICSID Case No ARB/04/14, Award, 8 December 2008. A more liberal approach was eg followed in RosInvestCo UK Ltd v The Russian Federation, SCC Case No V 079/2005, Award on Jurisdiction, October 2007.

255 See MJ Valasek, É-A Ménard, ‘Case Comment – Impregilo SpA v Argentine Republic and Hochtief AG v The Argentine Republic, Making Sense of Dissents: The Jurisprudence Inconstante of the MFN Clause’, (2012) 27(1) ICSID Review-FILJ, discussing Impregilo SpA v Argentine Republic, ICSID Case No ARB/07/17, Award, 21 June 2011, and Hochtief AG v The Argentine Republic, ICSID Case No ARB/07/31, Decision on Jurisdiction, 24 October 2011.

256 See Lew and others (n 13 above) para 16-39.

257 On joinder and intervention of third parties in commercial arbitration in relation to consent to arbitration see Steingruber (n 1 above) paras 10.03 et seq.

258 See KP Berger, International Economic Arbitration, (Kluwer Law 1993) 311-312.

259 See B Hanotiau, ‘Complex – Multicontract – Multiparty – Arbitrations’, (1998) 14(4) Arbitration International 384.

260 See M Platte, ‘When Should an Arbitrator Join Cases’, (2002) 18(1) Arbitration International 68; Lew and others (n 13 above) para 16-38.

261 See, eg JJ van Haersolte-van Hof, ‘Consolidation under the English Arbitration Act 1996: A View from the Netherlands’, (1997) 13(4) Arbitration International 427.

262 For a detailed analysis of the advantages of consolidation generally, see JC Chiu, ‘Consolidation of Arbitral Proceeding and International Arbitration’, (1990) 7(2) Journal of International Arbitration 53.

263 See, eg E Gaillard, ‘The Consolidation of Arbitral Proceeding and Court Proceedings’, in Complex Arbitrations, Perspectives on their Procedural Implications, ICC International Court of Arbitration Bulletin, Special Supplement, (ICC Publishing 2003) 36 ; see also Chiu (n 262 above) 55-56, or P Leboulanger, ‘Multi-Contract Arbitration’, (1996) 13(4) Journal of International Arbitration 62.

264 Ibid.

265 For a detailed analysis of the disadvantages of consolidation generally, see Chiu (n 262 above).

266 See, eg Chiu (n 262 above) 58.

267 See, eg Gaillard (n 263 above) 37. See also Chiu (n 262 above) 61.

268 See, eg Lew and others (n 13 above) para 16-75. See also A Diamond, ‘Multi-Party Arbitrations: a Plea for a Pragmatic Piecemeal Solution’, (1991) 7(4) Arbitration International 403 and in particular M Collins, ‘Privacy and Confidentiality in Arbitration Proceedings’, (1995) 11(3) Arbitration International 321, discussing the case Oxford Shipping Company Limited v Nippon Yusen Kaisha (‘The Eastern Saga’) [1984] 2 Lloyd’s Rep 373 (QB).

269 Chiu (n 262 above) 57. On consolidation of arbitrations in relation to consent to arbitration see Steingruber (n 1 above) paras 10.24 et seq.

270 One of the exceptions is the Netherlands: see Article 1046 of the Netherlands Code of Civil Procedure (‘CCP’).

271 See Leboulanger (n 263 above) 64.

272 Ibid.

273 See Article 4 of the Swiss Rules of International Arbitration (2012).

274 Ibid.

275 See Article 12 of the CEPANI Arbitration Rules.

276 See Article 11 of the SCC Arbitration Rules (2010).

277 Article 7 of the ICC Rules of Arbitration (2012).

278 Article 10 of the ICC Rules of Arbitration (2012).

279 See Steingruber (n 1 above) para 10.36.

280 See Article 17 of the CIETAC Arbitration Rules (2012).

281 Section 35 of the English Arbitration Act 1996.

282 Article 1046 of the Netherlands CCP.

283 See the discussion between S Jarvin, ‘Consolidated arbitrations, the 1958 New York Arbitration Convention and the Dutch Arbitration Act 1986 – a Critique of Dr van den Berg’, (1987) 3(3) Arbitration International 254; AJ van den Berg, ‘Consolidated arbitrations and the 1958 New York Arbitration Convention’, (1986) 2(4) Arbitration International 367; AJ van den Berg, ‘Consolidated arbitrations, the 1958 New York Arbitration Convention and the Dutch Arbitration Act 1986 – A Replique to Mr Jarvin’, (1987) 3(3) Arbitration International 257.

284 KM Rooney, The New Hong Kong Arbitration Law, (2011) 16(1) IBA Arbitration News 54.

285 See, eg Australia, New Zealand.

286 For the situation in the USA, where a tradition with regard to ‘consolidation’ also exists, see eg Born (n 65 above) 2079 et seq and 2088 et seq or Steingruber (n 1 above) paras 10.49 et seq.

287 Lew and others (n 13 above) para 28-29.

288 HC Alvarez, ‘Arbitration Under the North American Free Trade Agreement’, (2000) 16(4) Arbitration International 413.

289 See the US Model BIT (2012) or the Canada Model BIT (2004).

290 See the Chile-US Free Trade Agreement, the Morocco-US Free Trade Agreement, the Singapore-US Free Trade Agreement, the Canada-Chile Free Trade Agreement.

291 A Crivellaro, ‘Consolidation of arbitral and court proceedings in investment disputes’, in BM Cremades, JDM Lew (eds), Parallel State and Arbitral Procedures in International Arbitration, Dossiers – ICC Institute of World Business Law, (ICC Publishing 2005) 106.

292 See also Crivellaro (n 291 above) 111.

293 An exception is, eg Article 1046 of the Netherlands CCP which provides for the possibility of mandatory consolidation.

294 See, eg the consent given by the parties to consolidation by choosing the Swiss Rules of International Arbitration (Article 4).

295 On consolidation of investment arbitrations see also G Kaufmann-Kohler, L Boisson de Chazournes, V Bonnin, MM Mbengue, ‘Consolidation of Proceedings in Investment Arbitration: How Can Multiple Proceedings Arising from the Same or Related Situations Be Handled Efficiently’, Final Report on the Geneva Colloquium held on 22 April 2006, (2006) 21(1) ICSID Review-FILJ 59; or Steingruber (n 1 above) paras 13.146 et seq.

296 Crivellaro (n 291 above) 119.

297 Ibid.

298 See Article 53 of the ICSID Convention. The situation is however different in non-ICSID arbitrations and in arbitrations conducted under the Additional Facility (see Schreuer and others (n 125 above) para 5 at Article 52).

299 See Crivellaro (n 291 above) 111 et seq.

300 See Kaufmann-Kohler and others (n 295 above) 88.

301 See Steingruber (n 1 above) paras 13.168 et seq.

302 Lew and others (n 13 above) para 5-11.

303 See the US judgment Reily v Russel, 34 Mo 524 (1864) 528 (Lew and others(n 13 above) para 5-16).

304 See however Kaufmann-Kohler and Peter (n 7 above) 186.

305 See Brekoulakis (n 5 above) para 1.102.

306 LA Mistelis, ‘Reality Test: Current State of Affairs in Theory and Practice Relating to “Lex Arbitri” ’, (2006) 17(2) The American Review of International Arbitration 159.

307 Hanotiau (n 9 above) 554.

308 K Lionnet, ‘Rechtspolitische Bedeutung der Schiedsgerichtsbarkeit’, in KP Berger, WF Ebke, S Elsing, B Grossfeld, G Kuehne (eds), Festschrift für Otto Sandrock (Verlag Recht und Wirtschaft 2000) 606. See also Lew and others (n 13 above) para 7-9.

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