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Beyond Consent
Revisiting Jurisdiction in Investment Treaty Arbitration
Series: - Nijhoff International Investment Law Series, Volume: 18
Author:
Conventional wisdom in the theory and practice of investment treaty arbitration says that the jurisdiction of arbitral tribunals is regulated by party consent. In
Beyond Consent: Revisiting Jurisdiction in Investment Treaty Arbitration, Relja Radović investigates the formation of another layer of jurisdictional regulation, which is developed by arbitral tribunals.
The principle that the jurisdiction of arbitral tribunals is governed by party consent stems from the foundations of the international legal order. Against that background, Radović surveys case law and analyses the development of arbitrator-made jurisdictional rules, which complement those defined by disputing parties. He then argues in favour of recognising the regulatory function of arbitral tribunals in the jurisdictional structure of investment treaty arbitration.
The principle that the jurisdiction of arbitral tribunals is governed by party consent stems from the foundations of the international legal order. Against that background, Radović surveys case law and analyses the development of arbitrator-made jurisdictional rules, which complement those defined by disputing parties. He then argues in favour of recognising the regulatory function of arbitral tribunals in the jurisdictional structure of investment treaty arbitration.
Relja Radović, PhD (University of Luxembourg, 2019), is an attorney at law qualified in Serbia. He studied law in Novi Sad, Leiden, and Luxembourg. He has published articles on diverse topics in the fields of international adjudication and investment treaty arbitration.
Acknowledgements
Summary
List of Graphs
List of Abbreviations
Introduction
1 Consensual and Arbitral Jurisdictional Regulation
2 Framing the Project
2.1 ‘Consent’
2.2 ‘Jurisdiction’
2.3 Scope of the Project
3 Method
4 Outline
5 Relevance
1 The Process of Jurisdictional Regulation in Investment Treaty Arbitration
1 Introduction
2 The Significance of Consent
2.1 The Consensualism of International Adjudication
2.2 The Function of Consent
2.2.1 The Origins of the Power to Adjudicate
2.2.2 Dispute and Justiciability
2.2.3 A Multistage Process
2.2.4 The Contractual Nature of International Jurisdiction
2.3 A General Principle of International Law
2.4 Some Contextual Considerations
2.4.1 Global Public Goods
2.4.2 Protective Treaty Regimes
2.4.3 A Hybrid Regime
3 Jurisdictional Regulation in Investment Treaty Arbitration
3.1 Legal Framework
3.1.1 The icsid Convention
3.1.2 ‘Arbitration Without Privity’
3.2 Agreement to Arbitrate
3.2.1 Offer and Acceptance
3.2.2 Contract, Agreement, or Unilateral Act
3.2.3 The Form of an Agreement to Arbitrate
3.3 The Substance of Jurisdictional Regulation
3.3.1 Arbitrable (Justiciable) Disputes
3.3.2 Conditions of Access
4 The Governing Legal Regime
4.1 The Law Governing Agreements to Arbitrate
4.2 The Rules of Interpretation of Agreements to Arbitrate
4.3 Three Stages of Jurisdictional Checks
4.3.1 Pre-Examination by Administrative Organs
4.3.2 Examination by Arbitral Tribunals
4.3.3 Post-Examination by Annulment Committees and Courts
4.4 The Power of Tribunals to Fill Gaps in Jurisdictional Regulation
5 Conclusion
2 Arbitrator-Made Rules and the Procedural Aspects of Consensual Jurisdictional Regulation
1 Introduction
2 Rules Weakening the Conditions of Access
2.1 The Jurisdiction/Admissibility Dichotomy
2.2 Conditions Precedent as Issues of Admissibility
2.3 Applicable Procedure as an Issue of Admissibility
3 Rules Bypassing the Conditions of Access
3.1 Bypassing Conditions Precedent
3.1.1 Futility
3.1.2 The Mavrommatis Principle
3.1.3 Identity of Disputes
3.2 Bypassing Fork-in-the-Road Clauses
4 Most-Favoured-Nation Clause as a Jurisdictional Panacea
4.1 Dispute Resolution as Substantive Protection
4.2 Presumptions on the mfn-Dispute Resolution Conjunction
4.2.1 Conditions Precedent and Presumed Applicability
4.2.2 Substantive Jurisdiction and Presumed Inapplicability
4.3 Presumptions in Practice
5 Conclusion
3 Arbitrator-Made Rules and the Substantive Aspects of Consensual Jurisdictional Regulation
1 Introduction
2 Rules with a Temporal Dimension
2.1 The Non-Retroactivity of Denial of Benefits
2.2 The Extension of the Validity of Consent and the Continued Act Doctrine
3 Rules Expanding the Scope of Protection
3.1 The Broches Test
3.2 Protecting Indirect Investments
4 Rules Expanding the Scope of Arbitrable Disputes: Example of Jurisdictional Bridging
5 Conclusion
4 Arbitrator-Made Rules Imposing Additional Jurisdictional Limits
1 Introduction
2 Rules Restricting the Scope of Protection
2.1 The Objective Definition of ‘Investment’
2.1.1 The ICSID Framework
2.1.2 Non-ICSID Context
2.2 The Independent Legality Requirement
2.3 The Objective Definition of ‘Investor’
3 Rules Restricting the Scope of Arbitrable Disputes: Example of Umbrella Clauses
4 Abuse of Process as a Jurisdictional Limit in Statu Nascendi
5 Conclusion
5 Towards a New Jurisdictional Framework of Investment Treaty Arbitration
1 Introduction
2 The Impetus of Arbitral Jurisdictional Regulation
2.1 Traditional Concerns about Investment Arbitration
2.1.1 Commercial Law Approaches
2.1.2 One-Sided System
2.1.3 Biased Arbitrators and ‘Adventurism’ in Jurisdictional Determinations
2.2 A Fresh Start: Changing Perspectives on Party Consent
2.2.1 Hard Perspective
2.2.2 Soft Perspective
2.2.3 The Specific Framework of Investor-State Dispute Settlement
2.2.3.1 Substantive Opportunities for Law-Making
2.2.3.2 Procedural Opportunities for Law-Making
3 A Two-Layered Model of Jurisdictional Regulation in Investment Treaty Arbitration
3.1 Primary Rules
3.2 Secondary Rules
3.2.1 Defining Secondary Rules
3.2.2 Practice as a Source of Law
3.2.3 Practical Application and the Doctrine of Evolutive Jurisdictional Regulation
4 Some Challenges of the Proposed Model
4.1 The Development of Secondary Rules and the ‘Impulse for Change’
4.2 The Relationship between Primary and Secondary Rules Regarding Legal Change
4.3 Control Mechanisms
4.4 Transparency and the Availability of the Law-Making Material
4.5 The Risk of Excessiveness and the Prospect of Stabilisation of Practice
5 The Two-Layered Model of Jurisdictional Regulation and the International Legal Order
5.1 Investment Arbitration and Global Governance
5.2 Trends towards Accepting Judicial Regulation in International Adjudication
6 Conclusion
Final Conclusions
Bibliography
Table of Cases
Treaties
Miscellaneous Sources
Index
Summary
List of Graphs
List of Abbreviations
Introduction
1 Consensual and Arbitral Jurisdictional Regulation
2 Framing the Project
2.1 ‘Consent’
2.2 ‘Jurisdiction’
2.3 Scope of the Project
3 Method
4 Outline
5 Relevance
1 The Process of Jurisdictional Regulation in Investment Treaty Arbitration
1 Introduction
2 The Significance of Consent
2.1 The Consensualism of International Adjudication
2.2 The Function of Consent
2.2.1 The Origins of the Power to Adjudicate
2.2.2 Dispute and Justiciability
2.2.3 A Multistage Process
2.2.4 The Contractual Nature of International Jurisdiction
2.3 A General Principle of International Law
2.4 Some Contextual Considerations
2.4.1 Global Public Goods
2.4.2 Protective Treaty Regimes
2.4.3 A Hybrid Regime
3 Jurisdictional Regulation in Investment Treaty Arbitration
3.1 Legal Framework
3.1.1 The icsid Convention
3.1.2 ‘Arbitration Without Privity’
3.2 Agreement to Arbitrate
3.2.1 Offer and Acceptance
3.2.2 Contract, Agreement, or Unilateral Act
3.2.3 The Form of an Agreement to Arbitrate
3.3 The Substance of Jurisdictional Regulation
3.3.1 Arbitrable (Justiciable) Disputes
3.3.2 Conditions of Access
4 The Governing Legal Regime
4.1 The Law Governing Agreements to Arbitrate
4.2 The Rules of Interpretation of Agreements to Arbitrate
4.3 Three Stages of Jurisdictional Checks
4.3.1 Pre-Examination by Administrative Organs
4.3.2 Examination by Arbitral Tribunals
4.3.3 Post-Examination by Annulment Committees and Courts
4.4 The Power of Tribunals to Fill Gaps in Jurisdictional Regulation
5 Conclusion
2 Arbitrator-Made Rules and the Procedural Aspects of Consensual Jurisdictional Regulation
1 Introduction
2 Rules Weakening the Conditions of Access
2.1 The Jurisdiction/Admissibility Dichotomy
2.2 Conditions Precedent as Issues of Admissibility
2.3 Applicable Procedure as an Issue of Admissibility
3 Rules Bypassing the Conditions of Access
3.1 Bypassing Conditions Precedent
3.1.1 Futility
3.1.2 The Mavrommatis Principle
3.1.3 Identity of Disputes
3.2 Bypassing Fork-in-the-Road Clauses
4 Most-Favoured-Nation Clause as a Jurisdictional Panacea
4.1 Dispute Resolution as Substantive Protection
4.2 Presumptions on the mfn-Dispute Resolution Conjunction
4.2.1 Conditions Precedent and Presumed Applicability
4.2.2 Substantive Jurisdiction and Presumed Inapplicability
4.3 Presumptions in Practice
5 Conclusion
3 Arbitrator-Made Rules and the Substantive Aspects of Consensual Jurisdictional Regulation
1 Introduction
2 Rules with a Temporal Dimension
2.1 The Non-Retroactivity of Denial of Benefits
2.2 The Extension of the Validity of Consent and the Continued Act Doctrine
3 Rules Expanding the Scope of Protection
3.1 The Broches Test
3.2 Protecting Indirect Investments
4 Rules Expanding the Scope of Arbitrable Disputes: Example of Jurisdictional Bridging
5 Conclusion
4 Arbitrator-Made Rules Imposing Additional Jurisdictional Limits
1 Introduction
2 Rules Restricting the Scope of Protection
2.1 The Objective Definition of ‘Investment’
2.1.1 The ICSID Framework
2.1.2 Non-ICSID Context
2.2 The Independent Legality Requirement
2.3 The Objective Definition of ‘Investor’
3 Rules Restricting the Scope of Arbitrable Disputes: Example of Umbrella Clauses
4 Abuse of Process as a Jurisdictional Limit in Statu Nascendi
5 Conclusion
5 Towards a New Jurisdictional Framework of Investment Treaty Arbitration
1 Introduction
2 The Impetus of Arbitral Jurisdictional Regulation
2.1 Traditional Concerns about Investment Arbitration
2.1.1 Commercial Law Approaches
2.1.2 One-Sided System
2.1.3 Biased Arbitrators and ‘Adventurism’ in Jurisdictional Determinations
2.2 A Fresh Start: Changing Perspectives on Party Consent
2.2.1 Hard Perspective
2.2.2 Soft Perspective
2.2.3 The Specific Framework of Investor-State Dispute Settlement
2.2.3.1 Substantive Opportunities for Law-Making
2.2.3.2 Procedural Opportunities for Law-Making
3 A Two-Layered Model of Jurisdictional Regulation in Investment Treaty Arbitration
3.1 Primary Rules
3.2 Secondary Rules
3.2.1 Defining Secondary Rules
3.2.2 Practice as a Source of Law
3.2.3 Practical Application and the Doctrine of Evolutive Jurisdictional Regulation
4 Some Challenges of the Proposed Model
4.1 The Development of Secondary Rules and the ‘Impulse for Change’
4.2 The Relationship between Primary and Secondary Rules Regarding Legal Change
4.3 Control Mechanisms
4.4 Transparency and the Availability of the Law-Making Material
4.5 The Risk of Excessiveness and the Prospect of Stabilisation of Practice
5 The Two-Layered Model of Jurisdictional Regulation and the International Legal Order
5.1 Investment Arbitration and Global Governance
5.2 Trends towards Accepting Judicial Regulation in International Adjudication
6 Conclusion
Final Conclusions
Bibliography
Table of Cases
Treaties
Miscellaneous Sources
Index
Academics, practitioners, and everyone else interested in investment treaty arbitration, international dispute settlement, the jurisdiction of international courts and tribunals, and public international law generally.