Environmental Engineering Reference
In-Depth Information
proceeding. The first one is a “court-like” proceeding resulting in a binding verdict,
and the second one is a proceeding led by a mediator which tries to achieve a
consensual abatement of differences.
263
Like the first proceeding, the third one also
reaches a binding judgment.
264
ICSID has a simple structure, consisting of the Administrative Council and the
Secretariat. The Administrative Council is the governing body of the ICSID and
encompasses functions like the election of the Secretary-General and the adoption
of the ICSID budget (Art. 4 to 8 of the ICSID Convention). The Secretariat consists
of a Secretary-General, a Deputy Secretary-General and staff (Art. 9 of the ICSID
Convention), whereby the Secretary-General is the legal representative organ of
ICSID (Art. 11 of the ICSID Convention). The tasks of the Secretariat include
providing institutional support for the initiation and assisting with the ICSID pro-
ceedings in the constitution arbitral tribunals (Art. 36 and 38 of the ICSID Con-
vention). According to Art. 18 of the ICSID Convention, the Centre has full
international legal personality and due to Art. 19 of the ICSID Convention immu-
nity and privileges within the contracting states to fulfill its tasks.
2.3.2.1
Jurisdiction of Arbitration
Art. 25 of the ICSID Convention deals with the jurisdiction of the Centre. The
specialty of Art. 25(1) of the ICSID Convention lies in the fact that the jurisdiction
is limited to
(
...
) any legal dispute arising directly out of an investment (
...
).
'
According to Art. 41(1) of the ICSID Convention, the respective tribunal must
decide on its jurisdiction in a case-by-case analysis.
However, jurisdiction is not as simple as it might seem. With regard to invest-
ments, there are a lot of different contracts involved. The most prominent are the
BIT and the investment contract between the investor and the host state. The
investment contract between an investor and the host state is also known as a
state contract.
265
Concerning ICSID jurisdiction, the BIT is relevant as the major
tool, which allows ICSID arbitration. If the BIT excludes this possibility, it is
difficult to get under the ICSID Convention
'
s umbrella. As mentioned above,
breaches of the BIT (treaty claims) can be subject of ICSID tribunals
'
jurisdiction.
BITs give the investor contractual rights against the host state, although there is no
direct contractual relationship.
266
'
263
Hobe and M¨ ller (
2009
), 65 (67); Tietje (
2003
), 5 (10).
264
Tietje (
2003
), 5 (10).
265
Metje (
2008
), 64; Sch
obener et al. (
2010
), 242, Kap. 4 §16 para 81.
266
Nariman (
2004
), 123 (134).
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