DOI: https://doi.org/10.14710/dilrev.6.2.2021.247-264

INCONSISTENCIES IN ICSID AWARDS ON DISPUTES RELATED TO MFN AND UMBRELLA CLAUSE

*Herliana Herliana  -  Faculty of Law, Universitas Gadjah Mada, Indonesia
Open Access Copyright (c) 2021 Diponegoro Law Review under http://creativecommons.org/licenses/by-nc-sa/4.0.

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Abstract
Investment arbitration has been acclaimed as an important part of Foreign Direct Investment (FDI) movement around the globe because it provides a neutral and trustable forum for settling investment dispute. However, many argue that investment arbitration often becomes advocates of foreign investors and neglect the developing country’s interests as the host of investment. This paper aims at studying the investment arbitration awards rendered by International Center for Settlement of Investment Dispute (ICSID) tribunals launched against developing countries. The question is whether and to what extent those awards have equally observed the interests of foreign investors and host states of investments. To answer the questions, this paper employs case study method and use publicly available ICSID cases. This research shows that some ICSID tribunals have inconsistent reasoning which led to contradictory decisions. Apparently, as some cases indicate ICSID tribunals gave more weight to the need to protect foreign investors rather than host countries’ development interests. As a consequence, inconsistency and ambiguity have led to uncertainty and unpredictability of the forum. This is not only disadvantaged the parties due to inability to foresee the likely outcome of the disputes but also endanger the ICSID tribunals’ credibility as neutral and reliable forum.
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Keywords: ICSID; Investment Arbitration; Foreign Investors; Investment Dispute; MFN; Umbrella Clause
Funding: Faculty of Law, Gadjah Mada University

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  2. Bradlow, Daniel D., and Alfred Escher. Legal Aspects of Foreign Direct Investment. Kluwer Law International, 1999
  3. Cole, Tony. “The Boundaries of Most Favored Nation Treatment in International Investment Law.” Mich. J. Int’l L. 33 (2011): 537
  4. Desierto, Diane A. “Necessity and Supplementary Means of Interpretation for Non-Precluded Measures in Bilateral Investment Treaties.” U. Pa. J. Int’l L. 31 (2009): 827
  5. Dolzer, Rudolf, and Christoph Schreuer. Principles of International Investment Law. Oxford University Press, 2008
  6. Dranias, Nicholas C. “Consideration as Contract: A Secular Natural Law of Contracts.” Tex. Rev. L. & Pol. 12 (2007): 267
  7. Egli, Gabriel. “Don’t Get Bit: Addressing ICSID’s Inconsistent Application of Most-Favored-Nation Clauses to Dispute Resolution Provisions.” Pepp. L. Rev. 34 (2006): 1045
  8. Guzman, Andrew T. “Why LDCs Sign Treaties That Hurt Them: Explaining the Popularity of Bilateral Investment Treaties.” Va. j. Int’l L. 38 (1997): 639
  9. Hallward, Marry, Do Bilateral Investment Treaties Attract Foreign Direct Investment? Only a Bit And They Could Bite https://papers.ssrn.com/so13/papers.cfm?abstract_id=636541, downloaded 10/9/2021
  10. Kessedjian, Catherine. “To Give or Not to Give Precedential Value to Investment Arbitration Awards?” In The Future of Investment Arbitration, edited by Catherine A. Rogers and Roger P. Alford. Oxford University Press, 2009
  11. Pietro, Domenico Di. “Applicable Law Under Article 42 of the ICSID Convention The Case of Amco v. Indonesia.” In International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law, edited by Tod Weiler. London: Cameron May Ltd, 2005
  12. Potts, Jonathan B. “Stabilizing the Role of Umbrella Clauses in Bilateral Investment Treaties: Intent, Reliance, and Internationalization.” Va. J. Int’l L. 51 (2010): 1005
  13. Salacause, Jeswald W. The Law of Investment Treaties. Oxford University Press, 2010
  14. Salacuse, Jeswald W, and Nicholas P Sullivan. “Do BITs Really Work: An Evaluation of Bilateral Investment Treaties and Their Grand Bargain.” Harv. Int’l LJ 46 (2005): 67
  15. Schill, Stephan W. “Enabling Private Ordering: Function, Scope and Effect of Umbrella Clauses in International Investment Treaties.” Minn. J. Int’l L. 18 (2009): 1
  16. ———. “Mulitilateralizing Investment Treaties through Most-Favored-Nation Clauses.” Berkeley J. Int’l Law 27 (2009): 496
  17. Schreuer, Christoph. “Consent to Arbitration.” In The Oxford Handbook of International Investment Law, edited by Christoph Schreuer, Peter Muchlinski, and Federico Ortino. Oxford University Press, 2008
  18. ———. “Investment Treaty Arbitration and Jurisdiction over Contract Claims-the Vivendi I Case Considered.” In International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law, edited by Tod Weiler. London: Cameron May Ltd, 2005
  19. Shany, Yuval. “Contract Claims vs. Treaty Claims: Mapping Conflicts Between ICSID Decisions on Multisourced Investment Claims.” The American Journal of International Law 99, no. 4 (2005): 835–51
  20. Sornarajah, M. The International Law on Foreign Investment. Third Edit. Cambridge University PRess, 2010
  21. Sourgens, Frédéric G. “By Equal Contest of Arms: Jurisdictional Proof in Investor-State Arbitrations.” NCJ Int’l L. & Com. Reg. 38 (2012): 875
  22. Vandelde, Kenneth J. Bilateral Investment Treaties: History, Policy, and Interpretation. Oxford University Press, 2010
  23. Wick, Diana Marie. “The Counter-Productivity of ICSID Denunciation and Proposals for Change.” J. Int’l Bus. & L. 11 (2012): 239
  24. Williams, David AR. “Jurisdiction and Admissibility.” In The Oxford Handbook of International Investment Law, edited by Christoph Schreuer, Peter Muchlinski, and Federico Ortino. Oxford University Press, 2008
  25. Wong, Jarrod. “Umbrella Clauses in Bilateral Investment Treaties: Of Breaches of Contract, Treat Violations, and the Divide between Developing and Developed Countries in Foreign Investment Disputes.” Geo. Mason L. Rev. 14 (2006): 135

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