Environmental Engineering Reference
In-Depth Information
79
treatment is just that, a minimum standard.
(i)t is meant to
serve as a floor, an absolute bottom, below which conduct is not accepted by the
international community
It pointed out that
'
'
and that
(
...
) (it) is not meant to vary from state to state
'
'
80
Nevertheless, the sole arbitrator in one ICSID case
or investor to investor.
'
mentioned that the state
s responsibility concerning the minimum standard is in
proportion to its resources.
81
The ICSID and the closely related development of investment arbitration have
helped to move away from the old “gun-boat” strategies by creating a legal
framework which enables all investors to file a claim in front of a neutral
forum.
82
In earlier times, states used “gun-boat” strategies to protect the rights of
their investors abroad, using their economic and political power.
83
The fact that a natural or legal person can file a claim against a state is unique
within international law. Combined with the obligation to comply, the ICSID
Convention is an effective international investment protection tool. There is also
the possibility to conduct international commercial arbitration against a state, but
unlike the ICSID Convention, there are no comprehensive legal regimes within
commercial arbitration. The ICSID Convention also includes certain compliance
mechanisms which do not exist within international commercial arbitration. How-
ever, this will be discussed in a later section of this thesis dealing with the best
choice of investment arbitration institutions.
'
2.1.3
International Commercial Arbitration
It is frequently highlighted that international commercial arbitration is one of the
best ways to solve international commercial disputes.
84
International arbitration is
defined as:
(
) [A] process by which parties agree to the binding resolution of their disputes by
adjudicators, known as arbitrators, who are selected by the parties either directly or
indirectly via a mechanism chosen by the parties.
85
...
Thus, the key aspects of international arbitrations are that the arbitration is
according to a party agreement, the dispute is resolved by selected arbitrators of
the parties, and the decision is binding.
86
Procedural flexibility, speed, costs and
79
ICSID [2009] In accordance with the UNCITRAL Arbitration Rules, 263-264 para 615.
80
ICSID [2009] In accordance with the UNCITRAL Arbitration Rules, 263-264 para 615.
81
In the case, the arbitrator mentioned that the minimum standard of due diligence is a modified
objective standard, in: ICSID [2009] ARB/07/21—Award, 20-21 para 81;
82
UNCTAD (
2010b
), 13; BITs allow direct claims against the state, in: Maier (
2010
), 95 (101).
83
UNCTAD (
2010b
), 1.
84
Buchanan (
1988
), 511 (512); Partasides and Fullelove (
2010
), 1 (1); Kutty (
2006
), 565 (570-571).
85
McIlwrath and Savage (
2010
), 5 para I-015.
86
SCC (
2014b
); McIlwrath and Savage (
2010
), 5 para I-015; Partasides and Fullelove (
2010
),
1 (1); Buchanan (
1988
), 511 (512); Kutty (
2006
), 565 (570).
