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Fernando Tupa addresses the sometimes-overlooked yet fundamental principle that consent to international arbitration is forum-specific, and explores its significance and practical consequences for investment tribunals. The author proposes that, if there is only consent “in principle” to international arbitration by the host State in an investment agreement due to the lack of a forum (or the unavailability of the forum contemplated therein), a foreign investor would not be entitled to unilaterally initiate an investment claim against the host State under said agreement, absent a subsequent agreement between the foreign investor and the host State on an arbitral forum. He also draws some conclusions and warns against the dangerous consequences of ignoring this basic principle.
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Abstract

This monograph addresses the sometimes overlooked yet fundamental principle that consent to international arbitration is forum-specific, and explores its significance and practical consequences in investment arbitration. This monograph contends that if there is no arbitral forum mentioned in the relevant dispute settlement provision of an investment agreement, the forum specified therein becomes unavailable for some reason, or a subsequent agreement on a forum is required between the parties to the dispute, there is only consent “in principle” to international arbitration in the investment agreement. Such expression of “consent” is unenforceable and ineffective, which means that a foreign investor would not be entitled to unilaterally initiate an investment claim against the host State under said agreement absent a subsequent agreement between the foreign investor and the host State on an arbitral forum. This monograph also shows that there is an explicit requirement of a forum-specific consent in the arbitral rules of the often-used arbitral institutions. In addition, the most-favored nation clause in investment agreements could not be applied to overcome the lack of forum in dispute settlement provisions. Finally, this monograph proposes possible avenues to tackle the absence of an agreed-upon forum in an investor-State dispute settlement provision, draws some conclusions and warns against the dangerous consequences of ignoring this basic principle.

In: The Dilemma of Consent to International Arbitration in Investment Agreements without a Forum
Author:

Abstract

This monograph addresses the sometimes overlooked yet fundamental principle that consent to international arbitration is forum-specific, and explores its significance and practical consequences in investment arbitration. This monograph contends that if there is no arbitral forum mentioned in the relevant dispute settlement provision of an investment agreement, the forum specified therein becomes unavailable for some reason, or a subsequent agreement on a forum is required between the parties to the dispute, there is only consent “in principle” to international arbitration in the investment agreement. Such expression of “consent” is unenforceable and ineffective, which means that a foreign investor would not be entitled to unilaterally initiate an investment claim against the host State under said agreement absent a subsequent agreement between the foreign investor and the host State on an arbitral forum. This monograph also shows that there is an explicit requirement of a forum-specific consent in the arbitral rules of the often-used arbitral institutions. In addition, the most-favored nation clause in investment agreements could not be applied to overcome the lack of forum in dispute settlement provisions. Finally, this monograph proposes possible avenues to tackle the absence of an agreed-upon forum in an investor-State dispute settlement provision, draws some conclusions and warns against the dangerous consequences of ignoring this basic principle.

In: Brill Research Perspectives in International Investment Law and Arbitration