Environmental Engineering Reference
In-Depth Information
simply including it in their BIT.
294
According to Rule 2 of the Institution Rules, the
date of consent is when the parties
(
...
) consented in writing to submit it to the
'
Centre (
or the day when the last of the two parties acted. The date of consent is
important because determination of the nationality of the investor is according to
this day.
295
Finally, the last sentence of Art. 25(1) of the ICSID Convention
stipulates that once a party gives consent, it is not irrevocable unilaterally.
No. 23 of the Report of Executive Directors also highlights this. The benefit of
the previous state consent lies in the fact that it is predictable and manageable for
the investor, should a dispute arise.
296
Consequently, the fact that Morocco ratified the G/M-BIT is an expression of
consent. Art. 11(2) of the G/M-BIT mentions that the ICSID Convention applies,
despite the existence of a different agreement between the parties. The only
condition is that there should be a 6-month period after the claim of the breach
before it is submitted to ICSID. Within this period, both parties should try to settle
the dispute. It is advisable for an investor and Morocco/ONE to conclude a separate
section in the state contract which deals with the issue of consent and express their
will to use the ICSID Convention to solve investment disputes.
...
)
'
3.5.2.1.2 Legal Disputes
ICSID tribunals have a similar description and definition of the term dispute like the
ICJ and the PCIJ.
297
The PCIJ mentioned that a dispute is
) a disagreement on a
point of law or fact, a conflict of legal views or of interest between two parties
(
(
...
'
298
Similarly, the ICJ concluded that a dispute is
) a situation in which the
two sides hold clearly opposite views concerning the question of the performance or
non-performance of certain treaty obligations.
...
).
(
...
'
'
299
These definitions are subject to
critics because of their broad or narrow nature.
300
Concerning ICSID jurisdiction,
Art. 25(1) of the ICSID Convention stipulates that the jurisdiction of ICSID extends
'
'
In Section V
(Jurisdiction of the Centre) of the Report of Executive Directors, No 26 defines the
term more narrowly. Within No 26, it is written that:
(
...
) to any legal dispute arising directly out of an investment (
...
).
'
[T]he expression “legal dispute” has been used to make clear that while conflicts of rights
are within the jurisdiction of the Centre, mere conflicts of interests are not. The dispute must
concern the existence or scope of a legal right or obligation, or the nature or extent of the
reparation to be made for breach of a legal obligation.
294
ICSID [1997] ARB/93/1—Award, 21 para 5.18.
295
Hobe and M¨ ller (
2009
), 65 (70); Schreuer (
2010
), 353 (361).
296
Harten and Loughlin (
2006
), 121 (144).
297
Schreuer (
2008
), 959 (960).
298
PCIJ [1924] The Mavrommatis Palestine Concessions, 7 (11).
299
ICJ [1950] Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, 65 (74).
300
Dispute is a complex term and difficult of define, in: Schreuer (
2008
), 959 (960).
