Beyond Consent: Revisiting Jurisdiction in Investment Treaty Arbitration: Nijhoff International Investment Law Series, cartea 18
Autor Relja Radovićen Limba Engleză Hardback – 16 iun 2021
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.
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Specificații
ISBN-13: 9789004453685
ISBN-10: 9004453687
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Nijhoff International Investment Law Series
ISBN-10: 9004453687
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Nijhoff International Investment Law Series
Cuprins
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’
2.3Scope 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
2.1The Consensualism of International Adjudication
2.2The 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
2.3A General Principle of International Law
2.4Some 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
3.1Legal Framework
3.1.1 The icsid Convention
3.1.2 ‘Arbitration Without Privity’
3.2Agreement 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
3.3The Substance of Jurisdictional Regulation
3.3.1 Arbitrable (Justiciable) Disputes
3.3.2 Conditions of Access
4 The Governing Legal Regime
4.1The Law Governing Agreements to Arbitrate
4.2The Rules of Interpretation of Agreements to Arbitrate
4.3Three 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
4.4The 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
2.1The Jurisdiction/Admissibility Dichotomy
2.2Conditions Precedent as Issues of Admissibility
2.3Applicable Procedure as an Issue of Admissibility
3 Rules Bypassing the Conditions of Access
3.1Bypassing Conditions Precedent
3.1.1 Futility
3.1.2 The Mavrommatis Principle
3.1.3 Identity of Disputes
3.2Bypassing Fork-in-the-Road Clauses
4 Most-Favoured-Nation Clause as a Jurisdictional Panacea
4.1Dispute Resolution as Substantive Protection
4.2Presumptions on the mfn-Dispute Resolution Conjunction
4.2.1 Conditions Precedent and Presumed Applicability
4.2.2 Substantive Jurisdiction and Presumed Inapplicability
4.3Presumptions in Practice
5 Conclusion
3 Arbitrator-Made Rules and the Substantive Aspects of Consensual Jurisdictional Regulation
1 Introduction
2 Rules with a Temporal Dimension
2.1The Non-Retroactivity of Denial of Benefits
2.2The Extension of the Validity of Consent and the Continued Act Doctrine
3 Rules Expanding the Scope of Protection
3.1The Broches Test
3.2Protecting 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
2.1The Objective Definition of ‘Investment’
2.1.1 The ICSID Framework
2.1.2 Non-ICSID Context
2.2The Independent Legality Requirement
2.3The 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
2.1Traditional 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
2.2A 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
3.1Primary Rules
3.2Secondary 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
4.1The Development of Secondary Rules and the ‘Impulse for Change’
4.2The Relationship between Primary and Secondary Rules Regarding Legal Change
4.3Control Mechanisms
4.4Transparency and the Availability of the Law-Making Material
4.5The Risk of Excessiveness and the Prospect of Stabilisation of Practice
5 The Two-Layered Model of Jurisdictional Regulation and the International Legal Order
5.1Investment Arbitration and Global Governance
5.2Trends 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’
2.3Scope 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
2.1The Consensualism of International Adjudication
2.2The 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
2.3A General Principle of International Law
2.4Some 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
3.1Legal Framework
3.1.1 The icsid Convention
3.1.2 ‘Arbitration Without Privity’
3.2Agreement 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
3.3The Substance of Jurisdictional Regulation
3.3.1 Arbitrable (Justiciable) Disputes
3.3.2 Conditions of Access
4 The Governing Legal Regime
4.1The Law Governing Agreements to Arbitrate
4.2The Rules of Interpretation of Agreements to Arbitrate
4.3Three 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
4.4The 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
2.1The Jurisdiction/Admissibility Dichotomy
2.2Conditions Precedent as Issues of Admissibility
2.3Applicable Procedure as an Issue of Admissibility
3 Rules Bypassing the Conditions of Access
3.1Bypassing Conditions Precedent
3.1.1 Futility
3.1.2 The Mavrommatis Principle
3.1.3 Identity of Disputes
3.2Bypassing Fork-in-the-Road Clauses
4 Most-Favoured-Nation Clause as a Jurisdictional Panacea
4.1Dispute Resolution as Substantive Protection
4.2Presumptions on the mfn-Dispute Resolution Conjunction
4.2.1 Conditions Precedent and Presumed Applicability
4.2.2 Substantive Jurisdiction and Presumed Inapplicability
4.3Presumptions in Practice
5 Conclusion
3 Arbitrator-Made Rules and the Substantive Aspects of Consensual Jurisdictional Regulation
1 Introduction
2 Rules with a Temporal Dimension
2.1The Non-Retroactivity of Denial of Benefits
2.2The Extension of the Validity of Consent and the Continued Act Doctrine
3 Rules Expanding the Scope of Protection
3.1The Broches Test
3.2Protecting 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
2.1The Objective Definition of ‘Investment’
2.1.1 The ICSID Framework
2.1.2 Non-ICSID Context
2.2The Independent Legality Requirement
2.3The 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
2.1Traditional 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
2.2A 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
3.1Primary Rules
3.2Secondary 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
4.1The Development of Secondary Rules and the ‘Impulse for Change’
4.2The Relationship between Primary and Secondary Rules Regarding Legal Change
4.3Control Mechanisms
4.4Transparency and the Availability of the Law-Making Material
4.5The Risk of Excessiveness and the Prospect of Stabilisation of Practice
5 The Two-Layered Model of Jurisdictional Regulation and the International Legal Order
5.1Investment Arbitration and Global Governance
5.2Trends towards Accepting Judicial Regulation in International Adjudication
6 Conclusion
Final Conclusions
Bibliography
Table of Cases
Treaties
Miscellaneous Sources
Index
Notă biografică
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.