Examining the Effectiveness of the ICSID (International Centre for Settlement in Investment disputes): comme ci comme ça?
Internal Mentor :
Partner,Clarus Law Associates
BBA.LL.B (Hons.) With Specialization in Corporate Laws,
Semester IX, 5th Year
2009 - 2014 Batch
College of Legal Studies
University of Petroleum & Energy Studies (UPES), Dehradun
The following research thesis aims to effectively trace the evolution and emergence of institutional arbitration in the realm of international commercial arbitration through an analysis of the International Centre for Settlement of Investment Disputes1 by fundamentally examining its statutory composition, inception and subsequently analysing recent arbitral awards and institutional practices to derive a conclusion which would highlight the efficiency of the abovementioned organization from the perspective of a developing country.
The emergence of the ICSID can be traced in the early 1960s this era was characterized by a wave of take overs, high intensity capital based investment in regions such as Africa, Asia etc. It is during this time span that the eminent need was felt by foreign investors to develop a a mechanism to govern disputes in foreign countries and also to ensure that rules and practices of international investment are standardized. This ultimately led to the establishment of the International Centre for Settlement of Investment Disputes. The relevance of the subject can be best assessed by examining holistically the various considerations involved with respect to the functioning of this institution such as the non description of the term ‘investment’ in its governing statute2, the scope of access to the ICSID by non signatory countries to the convention but member countries of the WTO3, the process of annulment of an award etc4.
The research approach adopted in preparing this dissertation is doctrinal in nature. An attempt has been made to analyse the proposition of law related to the modern day relevancy of the ICSID with the aid of relevant arbitral awards and other emerging phenomenon such as the recent series of amendments to the arbitration rules under the Washington Convention. The student primarily aims to carry out an internal doctrinal analysis on the subject while taking ‘tertiary’ help from empirical sources5. A comparative analysis shall also be carried out while tracing the fundamental differences between other Institutional Arbitration mechanisms such as the LCIA, ICA6. Under the present economic conditions wherein effective markets in developing countries seem to be further evolving and also there seems to be a paradigm shift in the approach towards international commercial arbitration in developing countries such as India7, Philippines etc, under these circumstances the aforesaid research thesis aims at analysing the position of ICSID while aiming to determine the efficiency of the same and if truly its existence contributes in the jurisprudence of the international commercial arbitration. The approach of the thesis shall be to first trace the development of the ICSID through the Washington convention, thereafter examining various recent arbitral awards and recent occurrences and also critically examining various scholarly arguments effecting the development of this jurisprudence. The primary sources used for researching are Conventions and arbitral awards. Collections will be made from secondary sources in the form of journals, websites, books and articles in order to present a holistic view of the current scenario. III. Hypothesis:
The following hypothesis has been relied upon in order to research in the said field: “The ICSID does not have an effective annulment mechanism” IV. Scope of study
The student shall follow a multi-disciplinary approach on the...
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