The Role of Investment Arbitration in the Resolution of International Securities Investment Disputes
Abdullah EGELİ, Attorney at Law
Investment, from the perspective of international law, is a very broad concept, that is versatile and not agreed-upon a common definition.. Determining the concept of investment within the framework of international agreements is especially important in terms of potential investment disputes to be experienced. Yet, in many concrete cases in which international investment disputes are tried to be resolved by arbitration, it is possible to see that disputes have been rejected by the defendant and that the objection to jurisdiction has been excluded from the concept of investment defined and covered by the treaty. Recently, the concept of investment, revealed by the multilateral and bilateral investment treaties (BIT) on mutual encouragement and protection of investments, has been an extremely important issue not only for the investor and the state invested in but also for the solution of international investment disputes(1).
Some of the multilateral investment treaties in which the definition of investment is included are ICSID (International Center for Settlement of Investment Disputes) Convention, Energy Charter Treaty and MIGA (Multilateral Investment Guarantee Agency) Treaty. Certain aspects of these agreements, especially those envisaged by the ICSID Convention, are distinctive for the determination of the parties to international investment disputes. In terms of foreign capital investments, investor states have sought to obtain some security precautions against possible risks (especially expropriation, seizure, nationalization and similar applications) in the states they will invest in, resulting in bilateral investment treaties. These bilateral investment treaties are also very important in terms of the economies of the developing countries. Even though the concept of investment is defined differently in each treaty, it can be said that many of the assets, services, rights, benefits and privileges are accepted as an investment in the bilateral investment treaties(2).
In the field of capital market, thousands of international featured disputes arise every year, especially between intermediaries and investors. The use of arbitration in the resolution of these disputes also shows a rapid development as a more frequent method of increase in the number of disputes and the internationalization of capital market disputes(3). The issue of capital market disputes raise the question of whether it is appropriate to resolve the dispute of a securities investment within ICSID arbitration, especially when taking into account the characteristics of these disputes and the characteristics of the arbitration institution. For this reason, one of the issues to receive priority consideration is the question of whether the ICSID investment arbitration procedure is appropriate for such dispute types, although commercial arbitration is particularly common in developed countries, especially for the settlement of such disputes.
The investment arbitration and the commercial arbitration are two different judicial procedures that are topical not only in their doctrines but also in practical life. The main reason for the differences between investment arbitration and commercial arbitration is that the nature of the parties is different. In all of the investment arbitration cases, one of the parties to the case is a state. In commercial arbitration cases, although it is possible that one of the parties to the case is a state, this is a rare case and the states party to the commercial arbitration cases generally act differently from the states which are party to the investment arbitration cases. In a dispute resolution case, as a princple, a state that is a party to the commercial arbitrationacts like a private law person, not as a sovereign state having a superior power. On the other hand, a state, which is a party to the investment arbitration, without exception, does not act as a private law person, but acts as a sovereign state with superior command power(4).
Since investment and commercial arbitration are revealed in different ways, it is also possible that the arbitration proceedings of the two arbitral tribunals may be carried out in different arbitration centers or as “ad hoc”, subject to different rules of arbitration. For example, an “investment dispute” can be arbitrated in the ICSID (5) or in the International Chamber of Commerce (ICC), which is the typical arbitration center where “UNCITRAL Ad Hoc Arbitration Rules” or the Stockholm Chamber of Commerce Code of Conduct (SCC) are applied. It is also quite natural to find differences between the methods to be followed in different arbitration centers or carried out as ad hoc untied to any arbitration center(6). For example, there are differences between the ICSID rules of arbitration and the UNCITRAL ad hoc arbitration rules regarding the conditions for awarding interim injunctions. Likewise, the procedures to be followed between the ICC arbitration of a commercial dispute and The London Court of International Arbitration (LCIA) arbitration of the same commercial dispute are also different. However, in terms of its institutional structure, since the ICSID is based on a convention concluded between states in terms of its institutional structure, it carries some distinguishing characteristics that no other investment arbitrators have.
It should be kept in mind that while investment arbitrage and commercial arbitration are being specified, it is essential that these two arbitrage types are largely similar to each other, despite some differences. This is because investment arbitration is created by inspiring from commercial arbitration. Despite all the differences that we have expressed generally above, there are also many similarities between commercial arbitration and investment arbitration. Specifically, it is hard to ascertain whether it is a “commercial arbitration” or an “investment arbitration” trail, without any further details other than general context about that arbitration.
(1) Olcay Işık, “Uluslararası Hukukta Yatırım Kavramı: Antlaşmalar Temelinde Bir Değerlendirme” Uluslararası Hukuk ve Politika, V. VII, N. 28, 2011, p. 143.
(2) Işık, op. cit., p. 144.
(3) Deborah B. Oliver, “Arbitration of Securities Claim: Policy Considerations for Keeping Investor-Broker Disputes Out of Court”, Columbia Bussines Law Review, 1987, p. 527.
(4) İnci Ataman-Figanmeşe, “Milletlerarası Ticarî Tahkim ile Yatırım Tahkimi Arasındaki Farklar”, İstanbul Üniversitesi Milletlerarası Hukuk Bülteni (MHB), Y. 31, N. 1, 2011, p. 145-146.
(5) Although it is common to consider ICSID arbitration as the only resolution waywhen dealing with investment disputes through arbitration, it is an insufficient approach to exclusively address ICSID arbitration when dealing with investment arbitrage. As a matter of fact, according to the 2009 UNCTAD (United Nations Trade Commission), only 63% of the cases arising from investment disputes are in ICSID arbitration. On the other hand, the rate of investment disputes seen in other arbitration proceedings is 37%..(Ataman-Figanmeşe, op. cit., p. 97, 98).
(6) Almost all of the BIT agreements concluded between states, that allow the settlement of disputes between the investor and the host state through arbitration, grant a possibility to go to ICSID arbitration in a dispute, but most of these agreements also make it possible to resort to proceedings other than ICSID. For example, almost all of the BIT Agreements concluded by the UK authorize only ICSID arbitration to resolve investment disputes, whereas the BIT Agreements concluded by the United States also allow the UNCITRAL Ad Hoc Arbitration Rules, as well as ICSID, for the settlement of investment disputes. Similar to the provisions of the BIT Agreements that the US is a party, the BIT Agreements, which generally specify alternative jurisdictions, provide the investor with a choice of arbitration trial in the case of a dispute. The “Energy Charter Agreement”, which is a multilateral international agreement, provides alternative means of resolving investment disputes. Article 26/2 of the Energy Charter Treaty emphasize the alternatives; ICSID, UNCITRAL rules for ad hoc proceedings, or arbitration in Stockholm Chamber of Commerce. (Ataman- Figanmeşe, op. cit., p. 95-96, fn. 8).