香港留学生国际经济法硕士课程作业范文格式-Critically assess the Decision on Juris

香港留学生国际经济法硕士课程作业范文格式-Critically assess the Decision on Jurisdiction and Admissibility and the Dissenting Opinion of Professor Georges Abi-Saab in Abaclat and Others v. Argentine

 

 

ICSID公约是由国际复兴开发银行执行董事会制定的（w6rldbank），建立了ICSID解决投资争端，此外，解决投资争端国际中心是紧密相连的世界银行资助其组织

满分银行的预算，但成本符合诉讼由争议双方承担。 “解决投资争端国际中心”有两大演技机构：土地行政理事会秘书处。行政会是解决投资争端国际中心的管理机构。主持“当然”由世界银行总裁（但无投票权）包括一个的ICSID缔约国的代表（代表刮胡子平等的投票权。）

 

 

在国际投资领域的一个重要的待遇标准，国际社会应力求在公平待遇协议的解释。为保证法律的稳定性和可预测性是有用的。仲裁庭提出了基于国际标准的解释扩展趋势。在未来的社会中，国际社会需要明确的条约中的公平待遇的含义和限制自由裁量权仲裁庭的过度使用。然后它试图达到保护投资者与东道国公共事务的权力平衡。

 

 

Introduction 

The ICSID Convention was formulated by the Executive Directors of the International Bank for Reconstruction and Development (W6rldBank) that established ICSID for Settlement to investment disputes. In addition， ICSID is closely linked to the World Bank which finances its organization

Out of the Bank budget but the costs fits Proceedings are borne by the disputing Parties. The ICSID has two acting bodies: the Administrative Council land the Secretariat. The Administrative Council is the governing body of ICSID. It is chaired “ex officio” By the President of the World Bank (but has no vote) and is comprised of one representative of each of the ICSID Contracting States (all representative shave equal voting power.

 

 

In relation to the ICSID cases against developing Latin American countries, these have brought to the surface an urgent need to define the limits of investor rights and protections more clearly when balanced against the duties and obligations of the State to its citizens. Moreover, neither BITS, other International Investment Agreements (IIAs) nor jurisprudence have provided clear guidance with regard to the level of remedy or compensation available to foreign investors against breaches of obligations other than those relating to expropriation.

 

 

In order to have a deep know the decision on Jurisdiction and Admissibility and the Dissenting Opinion of Professor Georges Abi-Saab in Abaclat and Others v. Argentine, having an analysis based on the international law and the ICSID. In this paper, it mainly has three parts. The first part introduces the background and the case of Abaclat and Others v. Argentine. It includes the related parties, related fact, related law and related decision. The second part analysis the decision of the case detailed. It will explain the complex investment relationship between Italy and Argentine with discuss of the issues in the arbitral tribunal.

 

 

1. Background of the case of Abaclat and Others v. Argentine

1.1 The Related parties 

Based on the case of Abaclat and Others v. Argentine, the related parties are clearly. The claimants of the case are Abaclat and others (case formerly known as Glovanna A Beccara and others). And the respondent of the case is the argentine republic. Claimants are mostly natural persons of Italian nationality or juridical persons incorporated and existing under the laws of Italy (I. Tudor, 2008). Respondent is represented in this arbitration by its duly authorized attorneys.

 

 

1.2 Related fact

The mainly related fact concerns the jurisdictional phase of a dispute relating to Claimants ‘claims for compensatory  damages  due  to  Respondent‘s alleged breach of its obligations under the Agreement between the Argentine Republic and the Republic of Italy on the Promotion and Protection of Investments, signed in Buenos Aires on 22 May 1990, in two original copies, in the Italian and the Spanish language, both - bonds issued by Respondent, allegedly held by Claimants, on which payment Respondent defaulted. The related concept of this case includes the bonds, process of issuing bonds, the bond market and rating of bonds. 

 

 

1.3 Related law

This case mainly related the ICSID legal framework. It includes the including the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965 (hereinafter ―ICSID Convention‖), the Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings (hereinafter the Institution Rules‖), the Rules for Procedure for Arbitration Proceedings (hereinafter the ICSID Arbitration Rules‖) and the Administrative and Financial Regulations, in their versions as amended in 2006. The related law of the case also includes the Articles 37 and 38 ICSID convention and Rule 4 ICSID Arbitration Rules (Bryan Al Garner, 2000).

 

 

1.4 Related decision

According to the evidence of the parties, some tribunals also questioned the usefulness of the term in the framework of ICSID. In the decision report, the Executive Directors have interpreted the concept of ―jurisdiction of the Centre as a convenient expression to mean the limits within which the provisions of the Convention will apply and the facilities of the Centre will be available for 95 C-MJ Section IV 23(C. McLachlan, 2007). And the concept of jurisdiction under the Convention also covers issues which may usually be regarded as issues of admissibility. 97. It is thus not surprising that some tribunals have questioned the usefulness of the term in the framework of ICSID.98

 

 

2. Critical analysis of above decision 

2.1 The attribute of this case.

According to the decision of the case, it will easy to find that this case very complex and typical for the following cases. Argentina is the most litigated country in the ICSID and the most significant example of how a member State of ICSID is making use of the tools provided by the Convention for challenging awards rendered against the host country (A. New combe and L. Para dell, 2009)). such areas of concern are both the size of potential awards and the reduction of viable choices open to policy makers due to their adverse effects on foreign investors), the lack of transparency proceeding, the existence of multiplicity international arbitration procedures, the inconsistency of awards that impact upon the legitimacy of ICSID.

 

 

Moreover, Argentina is a member, among other international organizations, of the WTO, UNASUR, UNCITRAL and the Multilateral Investment Guarantee Agency (MICA).This country also is a member of Southern Common Market and signed some agreements that touch on investment issues. The fact that ICSID tribunals have not been uniformed in the application of criterion to accept the defense of necessity alleged by Argentina, generated great concern for the Argentine government(M. Sornarajah, 2010). They forced to developed several strategies, such as renegotiation of public contract with the claimants to obtain an agreement to withdrawals or suspend the proceeding of the ICSID cases, resorted to Article 52 of the ICSID Convention to seek the annulment of awards and requested a stay in the enforcement of the award based on Rule 54 of the ICSID Rules of Arbitration. 

 

 

2.2 Law and procedures should be observed

Both the Arbitration Centre and the Counseling Centre will have an initial stage of use only for countries that are part of LTNASUR for a period of 3 years. A second stage, from the start of the third year of the centre's existence, may use its services in Central America and the Caribbean and in the final stage, from the sixth year onwards; it will be open to any country wishing to use it. In other words, through the express designation of ICSID arbitration in Article 8 BIT, Italy and Argentina, which are both Contracting Parties to the ICSID Convention, express their consent required under Article 25 ICSID Convention to submit specific disputes with nationals of each other to ICSID arbitration. The scope of this consent is therefore defined by and must be determined according to the relevant provisions of the BIT, and in particular by Article 8.

 

 

To the extent that the BIT provides an investor with specific rights for the protection of its investment, a dispute relating to the existence, scope or violation of such a right can be deemed a legal dispute‖ in the sense of Article 25 ICSID Convention. The arbitration tribunal of the case proposed that the foreign investors expect the host country act consistent, not ambiguous and keep transparent of the relation between the foreign investors, so that the latter will understand all related laws and regulations of the investment. The arbitration tribunal further points out, the host country need to make investors understand legislation policy, administrative law enforcement and the purpose of ordered behind, so that investors can have better understand and abide to the policy and command(Stephan, 2009). However, according to the interpretation of the arbitration tribunal, the obligations and burden of the host country will add greatly, not only because they want to keep the law of the transparent, it still with the obligation of consultation and advice. This is a great burden for those developing countries with administrative resources.#p#分页标题#e#

 

 

2.3 The Details should be cared

Based on this case，these are three points which to be discussed as following.

 

 

2.3.1 Fair and equitable treatment standard 

The arbitral tribunal considers fair and equitable treatment standard should be in accordance with international law, but the non-discrimination principle contained in customary international law.

 

 

The tribunal held that:" ICSID 1105th paragraph 1st is a comprehensive concept, it can't be understood separately. ‘Fair and equitable treatment standard' and ' full protection and security’ should be explained clearly based on the premise of the international law. The real intention of Italy issued the policy is protecting their investment (Buenos Aires, 2006). And the ban has obvious discrimination which against the fair and equitable treatment standard clearly.

 

 

The decision of this case also runs counter to the standards of fair and equitable treatment standard. The arbitration tribunal cited Mann doctoral thesis," fair and equitable treatment provides national and MFN treatment is more comprehensive and in-depth standard, such a general standard of treatment is almost enough to cover any cases". Although the stated generalization based on some specific facts of cases, Italy violated the principle of national treatment and the fair and equitable treatment in essence.

 

 

It is clearly to see that the decision of this case violates the eleventh chapter of other rules. And its determination also violated the fair and equitable treatment in terms of the viewpoint, has the distinctive color. It is early fair and equitable treatment of generalized theory of the typical representative, emphasizing the fair and equitable treatment of blanket. It also expanded the possibilities in violation of fair and equitable treatment.

 

 

2.3.2 Enlarge the scope of the application

The decision of this case has broken the limit that the customary international law as the basis of the fair and equitable treatment. It considered fair and equitable treatment should also be dependent on the meaning of the" justice" for the ICSID members. And it expands the scope of application of the fair and equitable treatment.

 

 

The arbitral tribunal considers that the fair and equitable treatment not only in accordance with international law, but also should join the" justice". It is pointed out that the intention of the 1105th in the" international law" should be understood as ‘statute of the International Court of justice". And the 38th enumerated all the sources of international law is in the "on the basis of international law entitled to treatment" which based on the" add". It is not restrictions from the" international law", and it also means “customary international law"(Rudolf Dolzer and Christoph Schreuer, 2008). This interpretation of the fair and equitable treatment is broader.

 

 

This view has caused great controversy. A member of the ICSID government thinks, the arbitral tribunal ruling would make any government of most behavior that may constitute a violation of the fair and equitable treatment, such as the Italy verification event. It also bring more stringent national obligation for the host government.

 

 

2.3.3 Scope of the international law

The customary international law is developed along with the time development, and the fair and equitable treatment has evolved. The interpretation of the scope in the “customary international law" is a big problem. The standards established in this case become the reference model for quite a long time. And there is a classic presentation:" should be in accordance with international standards of government behavior is appropriate. Government for the treatment of aliens shall reach the atrocities, malicious or intentional disregard can constitute the international illegal act, or any impartial rational people can readily recognized government behavior is far did not meet international standards." The arbitral tribunal considers that minimum standard of treatment of international is with the development of era, so it should find the mean of customary international law in common of origin international law from now on.

 

 

For the due process of judgment, the judgment of the court and ruled did not violate the due process. And it did not violate the fair and equitable treatment. In the course of judicial relief, ICSID give the foreign investors the chance to choose the relief way, or turn to local judicial organs, or proposed in international arbitration, the two are not conflict (Dimsey, Mariel, 2007). Only in the local courts refuse referee, inappropriate delays and other circumstances can constitute a denial of justice.

 

 

In this case, the arbitration tribunal accepted the limit of FTC interpretation of the" customary international law". It detailed the application of the fair and equitable treatment for judicial injustice description of the case before. After that, judicial injustice was introduced to the fair and equitable treatment standard. These changes not only response to the FTC interpretation, but also take the impact on arbitration practice. The Counseling Centre will provide legal guidance, technical assistance, research, specialized studies and legal representation in terms of investment disputes.

 

 

Conclusion 

According to the analysis of the decision, their denunciations to ICSID comes at a time of much debate about ICSID "legitimacy." The legitimacy of ICSID is perceived not only by the result of its cases, Grossman states that it will depend on if ICSID proceedings is considered (1) fair and unbiased, (2) interpreting and applying norms consistent with what States believe the law is or should be, and (3) transparent and infused with democratic norms. X360.In these points ICSID has been suffering a legitimacy crisis because of its lack of transparency and failure to address the broader needs of society as well as generally inconsistency and indeterminacy, the lack of hierarchy of investment tribunals and the fact that it has no system of precedent. Moreover, inconsistent decisions rendered by tribunals regarding State liability, have become problematic in recent years particularly in light of the already challenged relationship between certain Latin American countries and capital exporting countries.

 

 

As an important treatment standard in the international investment field， the international community should strive to make the interpretation of agreement on the fair treatment. That is useful for ensuring the stability and predictability of the terms of law. The arbitration tribunal presents the expansion of the trend Based on the international standard explanation. In the future society, the international community needs explicit the meaning of the fair treatment in the treaty and limit the overuse of discretion arbitration tribunal. Then it tries to reach the investor protection and the balance of host countries public affairs power.

 

 

Reference 

 

A. New combe and L. Para dell (2009) Law and Practice of Investment Treaties: Standards of Treatment, Wolters Kluwer Law& Business, the Netherlands.

 

Bryan Al Garner(2000), Black Law Dictionary (7th edition)，Cambridge

University Press, London,

 

Buenos Aires: Rev (2006). Argentina del Regimen de la Administration Publics Nro.333一Section Doctrine .

 

C. McLachlan, L. Shore, M. Weiniger (2007): International Investment

Arbitration: Substantive Principles, Oxford University Press.

 

Dimsey, Mariel (2007). The Resolution of International Investment Disputes: Challenges and Solutions.

 

I. Tudor (2008), the Fair and Equitable Treatment Standard in the international Law of Foreign Investment, Oxford University Press.

 

M. Sornarajah (2010), the International Law on Foreign Investment, 3rd edition, Cambridge University Press.

 

Rudolf Dolzer and Christoph Schreuer(2008), Principles of International Investment Law, Oxford University Press.

 

Stephan W. Schill (2009), the Multilateralization of International Investment Law, Cambridge University Press.