Environmental Engineering Reference
In-Depth Information
There are also some drawbacks to ICSID arbitration. Some claim that the
obligation of publicity foils with the above-mentioned privacy. 341 ICSID tribunals
are in favor of publishing cases and awards, even if one party is against this. 342 This
is against to Rule 15 of the Arbitration Rules, which highlights in paragraph one
that all
...
'
(
) deliberations of the (t)ribunal shall take place in private and remain
secret.
Other authors mention that ICSID proceedings are as private as other
international arbitration proceedings. 343 In addition, the public interest, which is
higher than in cases of international commercial arbitration, creates a certain
pressure to make proceedings public. The higher interest frequently relates to the
possible involvement of tax money or important domestic projects. Another draw-
back of ICSID arbitration rests in the fact that treaty interpretation, the mixture of
national and international as applicable law, and the dealings with state parties need
specialists, which complicates the process. 344 Furthermore, the long duration of
ICSID trials is a negative factor. 345 The average ICSID tribunal arbitration period is
between 2 and 3 years. 346 However, it is important that arbitration tribunals reach a
verdict within a reasonable amount of time. 347
Overall, the benefits outweigh the drawbacks. There is no doubt that treaty
interpretation and the mixture of laws require specialists, which applies to all
forms of international arbitration. The duration of ICSID proceedings greatly
depends on the behavior of the parties and their will to cooperate. In addition, the
size of the project also determines the length of the arbitration. This is comparable
to international commercial arbitration. It would be wrong solely limit this argu-
ment to ICSID arbitration. Most of the negative perceptions connected to ICSID
arbitration also apply to other forms of international arbitration. One last benefit of
ICSID jurisdiction remains. Even in the worst case scenario that Morocco (or any
other MENA state) denounces the ICSID Convention, the state would still be bound
by its previous consent to ICSID arbitration related to all for pending or predicted
cases. 348 Hence, an investor should avoid waiving its right to ICSID jurisdiction, as
this is a functional tool to protect an investor
'
s rights. The same is valid for
Morocco/ONE. Only in the case of ICSID jurisdiction do they have the possibility
to annul an award. Most importantly, both parties must try to settle all disputes
amicably and not to abuse any rights. Since it is a long-term project, it is necessary
that there is a constantly positive climate.
'
341
Vannieuwenhuyse ( 2009 ), 115 (121); Egonu ( 2007 ), 479 (487); Tietje ( 2010 ), 5 (17-18); cf
Trakman ( 2002 ), 1 (5); For more publicity in investment proceedings, in: Lorcher ( 2005 ), 11 (16).
342
Egonu ( 2007 ), 479 (485-486).
343
Privacy to protect sensitive business or government information, in: Egonu ( 2007 ), 479 (482);
Tietje ( 2010 ), 5 (17); Reed et al. ( 2004 ), 8.
344 Jagusch et al. ( 2010 ), 75 (98).
345 Hunter ( 2007 ), 165 (170); cf UNCTAD ( 2010b ), 18.
346 Hauschka ( 2005 ), 1550 (1558).
347 Fiebiger ( 2010 ), 269 (270).
348 Fouret ( 2008 ), 71 (76); UNCTAD ( 2010a ), 2.
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