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di Eduardo Savarese
Multiple fora for the same disputed facts. What coordination between international and national jurisdictions in the framework of ICSID?
When looking at the question of coordination between ICSID jurisdiction and other (national/or international) jurisdictions, we have to take into due consideration two general aspects of the current international law on foreign investments.
Firstly, ICSID arbitration is mainly based on investment treaties, and specifically on bilateral investment treaties (hereinafter BITs). This means that ICSID tribunals (as they have constantly maintained since the ad hoc Committee in Vivendi) have jurisdiction on treaty-based claims. Indeed, an investment dispute may concern several aspects. An identical factual background can be viewed according to different perspectives, namely as a violation of treaty provisions, as a breach of an investment contract or as State misconduct that violates domestic law. In the same vein, since ICSID Tribunals generally maintain that non – controlling minority shareholdings constitute an “investment” for purposes of both the ICSID Convention and most BITs, the risk of multiple proceedings over similar claims based on the same State conduct becomes clear. And this was the case in the well-known “Czech awards” which, however, did not concerned ICSID but UNCITRAL arbitrations. However, there is a single legal aspect which interests ICSID Tribunals on the basis of BITs, i.e. claims of treaty violations.
Secondly, ICSID arbitration is increasingly being perceived as a new branch of general international administrative law, to the extent that ICSID Tribunals, by applying the fair and equitable standard, control overall State conduct in terms of transparency and predictability of administrative practices, respect for fair process and the rule of law, in this way safeguarding investors’ legitimate expectations. Such rulings may interfere with statements by the administrative courts of the host State.
Bearing in mind these two general outlines, we can already say that an investment dispute might be (and in actual fact is) presented before different mechanisms of dispute settlement, namely contractual claims before domestic courts or (domestic or international) commercial arbitration, according to the provisions written into the contract; administrative claims before domestic courts according to domestic laws and treaty claims before ICSID Tribunals. This dispute may be settled before different jurisdictions on the basis of different legal regimes, even though the same factual background is evaluated and appreciated at the same time.