Environmental Engineering Reference
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investor waives its right to ICSID jurisdiction. 289 The second issue deals with the
problem of implicit waivers. Mostly, there are several contracts between the state
and the investor (not the BIT), which might include special forum selection
clauses. 290
In both cases, the investor might not be able to use ICSID arbitration
anymore.
Yet, some ICSID tribunals have concluded that a forum selection clause does not
waive the right of ICSID jurisdiction. 291 Other tribunals have mentioned that a
forum selection clause only waives the rights concerning contract claims, but not
treaty claims. 292 As other ICSID tribunals have mentioned, there is an option to
waive ICSID jurisdiction even in the case of treaty claims. 293 The waiver must be
formulated in an explicit way and an ICSID tribunal must deal with the waiver and
its consequences within the respective case. 294 Furthermore, one ICSID tribunal
mentioned that it is important to:
(
...
) give effect to any valid choice of forum
'
295 The literature does not support that a forum selection
clause waives arbitration. 296 Some authors favor the idea to exclude a forum
selection clause to avoid a complicated aftermath. 297 To avoid this dispute, the
utilization of national courts or other arbitration tribunals should only be an option
in the state contract, and not an obligation. 298
There can be a problem if a BIT encompasses different dispute settlement
regulations than the state contract. In the case of the G/M-BIT, Art. 11(2) stipulates
that all disputes related to an investment are subject to ICSID regulation. Therefore,
both parties should not agree on other dispute settlement forums (national or
international). An investor in particular would risk losing ICSID jurisdiction,
since even an implicit waiver (e.g. forum selection clause) might be interpreted
as an exclusion of ICSID jurisdiction. The choice of the ICC or CAM should be
clearly connected to questions of commercial disputes, since these cannot be
subject to ICSID jurisdiction.
clause in the contract.
'
289 Rosenberg ( 2010 ), 8 (8).
290 Liebscher ( 2009 ), 105 (115).
291
Specifically for concessions and BITs, in: ICSID [2011] ARB/07/17—Award, 42 para 180;
ICSID [2002] ARB/97/3—Annulment, 89 (131) para 101; ICSID [1998] ARB/97/6—Preliminary
Decision, 457 (466) paras 25-26.
292
ICSID [2003] ARB/01/13, 307 (360-361) paras 161 and 162; ICSID [2002] ARB/97/3—
Annulment, 89 (130) para 98 and (131) para 101.
293 ICSID [2005] ARB/02/3, 29 para 118.
294 ICSID [2005] ARB/02/3, 29 paras 118-119.
295 ICSID [2002] ARB/97/3—Annulment, 89 (130) para 98.
296 Vinuesa ( 2005 ), 331 (354); cf Rosenberg ( 2010 ), 8 (11).
297 Dolzer and Schreuer ( 2008 ), 220.
298 Griebel ( 2008 ), 103 and 104.
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