II. Jus standi before international courts and tribunals
Sovereign States as subjects of international law have jus standi before international adjudicatory bodies. Prior to the advent of investor-State-dispute-settlement (ISDS), international dispute settlement mostly involved State-to-State investment disputes in the form mainly of mixed claims commissions and diplomatic protection.2
Physical and legal persons were traditionally considered not to be subjects of international law. Absent ISDS, such persons could only have their investment claims espoused before an international adjudicatory body by their State of nationality acting on their behalf in diplomatic protection. The alternative would be raising claims before domestic courts.3
III. Jus standi in investor-State dispute settlement
A. Arbitral tribunal's jurisdiction
Direct access to justice is a typical characteristic of ISDS. By agreeing on ISDS clauses in their treaties, States consent to the resolution of investment disputes with the investors of the other contracting party via international arbitration.4 The investor accepts this open offer by filing a request for arbitration, and provided it meets the requirements set forth under the treaty it has jus standi before the arbitral tribunal.5
B. Treaty definitions and other provisions
Treaty definitions and other provisions give content to the investor’s jus standi. The following considerations usually apply across the spectrum of ISDS:
Treaty definitions of “investment” commonly include ownership and control by the investor.11
Treaty definitions of “investment” usually refer to directly as well as indirectly owned or controlled assets. Case-law, therefore, generally allows shareholders to raise claims in their own rights,12 but tends to deny jus standi to entities not closely related to the investment.13
Some treaties also contain provisions (denial of benefits clauses) denying protection to investors with “no substantial business activities”.14
C. Privity of contract and rules of attribution of conduct
Privity of contract establishes that a subject must be a party to a contract to sue or be sued under that contract, but in ISDS it is often the local subsidiary of the investor that concludes the investment contract. While the local subsidiary has no jus standi as per the treaty, the investor might lack privity of contract.15 Case-law is not definitely settled on this issue, especially considering the variety of possible factual circumstances. But an investor owning or controlling (directly or indirectly) an investment, has reasons to argue that it has jus standi before the arbitral tribunal for the State’s alleged interferences with the investment contract amounting to a violation of investment treaty standards.16
A State entity or a State-owned enterprise (lacking jus standi before the investment treaty arbitral tribunal) may also be a party to the investment contract.17 Customary international law rules of attribution codified under the International Law Commission (ILC)’s Draft Articles on Responsibility of States for International Wrongful Acts apply, although these are open to interpretation as a variety of possible real-life business scenarios must be taken into account.18
Andrews, N., Contracts and English Dispute Resolution, Nagoya University Comparative Study of Civil Justice, 2010.
Badia, A., Piercing the Veil of State Enterprises in International Arbitration, International Arbitration Law Library, 2014, pp. 17-44.
Baltag, C., The Energy Charter Treaty: The Notion of Investor, International Arbitration Law Library, 2012.
Baltag, C., The ICSID Convention: A Successful Story: The Origins and History of the ICSID, in Baltag, C. (ed.), ICSID Convention after 50 Years: Unsettled Issues, 2017, pp. 1-24.
Bishop, D.R., Crawford, J.R. and Reisman, W.M. (eds.), Foreign Investment Disputes: Cases, Materials and Commentary, 2014.
Bray, H.L., Understanding Change: Evolution from International Claims Commissions to Investment Treaty Arbitration, in Schill, S.W., Tams, C.J. and Hofmann, R. (eds.), International Investment Law and History, 2018, pp. 102-135.
Crawford, J. and Mertenskoetter, P., The Use of the ILC’s Attribution Rules in Investment Arbitration, in Kinnear, M., Fischer, G.R., Almeida, J.M. and Torres, L.F. (eds.), Building International Investment Law: The First 50 Years of ICSID, 2015, pp. 27-42.
Clasmeier M., Arbitral Awards as Investments: Treaty Interpretation and the Dynamics of International Investment Law, International Arbitration Law Library, 2016.
Doherty, M. and Fletcher, R., Reform to the Privity Rule: Contracts (Rights of Third Parties) Act 1999, International Journal of Legal Education, 2001, pp. 91-101.
Dolzer, R. and Schreuer, C., Principles of International Investment Law, 2012.
Douglas, Z., The International Law of Investment Claims, 2009.
Dupuy, P.M., Preconditions to Arbitration and Consent of States to ICSID Jurisdiction, in Kinnear, M., Fischer, G.R., Almeida, J.M. and Torres, L.F. (eds.), Building International Investment Law: The First 50 Years of ICSID, 2015, pp. 219-236.
Gastrell, L. and Le Cannu, J-P, Procedural Requirements of ‘Denial-of-Benefits’ Clauses in Investment Treaties: A Review of Arbitral Decisions, ICSID Review - Foreign Investment Law Journal, 2015, pp. 78-97.
Harris, D.J., Cases and Materials on International Law, 2006.
Jagusch, S., Restructuring Investments to Achieve Investment Treaty Protection, in Kinnear, M., Fischer, G.R., Almeida, J.M. and Torres, L. F. (eds.), Building International Investment Law: The First 50 Years of ICSID, 2015, pp. 175-190.
Kinnear, M., Bjorklund, A.K. and Hannaford, J.F.G. (eds.), Investment Disputes under NAFTA: An Annotated Guide to NAFTA Chapter 11, 2006.
Kovács, C., Attribution in International Investment Law, 2018.
ICSID, ICSID, History of the ICSID Convention: Documents Concerning the Origin and Formulation of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Vol. II Part 1, 1968.
Lim, C.L., Ho, J. and Paparinskis, M. (eds.), International Investment Law and Arbitration: Commentary, Awards and Other Materials, 2018.
Magnarelli, M., Privity of Contract in International Investment Arbitration: Original Sin or Useful Tool?, International Arbitration Law Library, 2020.
Magnarelli, M., The Unresolved Conundrum of Contract-Based and Treaty-Based Claims: An Extra Element of Contention: Privity of Contract and Forum Selection Clauses in Investment Contracts, European Investment Law and Arbitration Review, 2016, pp. 76-87.
Merkin, R., Historical Introduction to the Law of Privity, in Merkin R. (ed.), Privity of Contract: The Impact of the Contracts (Right of Third Parties) Act 1999, 2000, pp. 1-17.
Nolan, M.D. and Sourgens, F.G., Limits of Consent: Arbitration Without Privity and Beyond, in Arias, D. and Fernández-Ballesteros M.A. (eds.), Liber Amicorum Bernardo Cremades, 2010.
Paulsson, J., Arbitration Without Privity, ICSID Review - Foreign Investment Law Journal, 1995, pp. 232-257.
Petrochilos, G., Attribution: State Organs and Entities Exercising Elements of Governmental Authority, in Yannaca-Small K. (ed.), Arbitration under International Investment Treaties: A Guide to Key Issues, 2010.
Romanetti, A., Defining Investors: Who Is Eligible To Claim?, Journal of International Arbitration, 2012, pp. 231-254.
Sasson, M., Substantive Law in Investment Treaty Arbitration: The Unsettled Relationship Between International Law and Municipal Law, 2017.
Schreuer, C., The Future of Investment Arbitration, in Arsanjani, M.H., Cogan, J.K., Sloane, R.D. and Wiessner, S. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, 2011, pp. 783-803.
Shan, W. and Wang, L., The Definition of “Investment”: Recent Developments and Lingering Issues, in Kalicki, J.E. and Abdel Raouf, M. (eds.), Evolution and Adaptation: The Future of International Arbitration, 2019, pp. 169-197.
Veeder V.V. and Legg, A., The Meaning of ‘Foreign Control’ under Article 25(2)(B) of the ICSID Convention, in Kinnear, M., Fischer, G.R., Almeida, J.M. and Torres, L. F. (eds.), Building International Investment Law: The First 50 Years of ICSID, 2015.
Déjà enregistré ?