正在加载图片...
408 International Organization and in the BIT context this problem is acute given the vastness of the global invest- ment landscape.Thankfully,the unique enforcement provisions in BITs provide an important way for compliance to be observed.As noted earlier,BITs contain investor-state dispute settlement clauses,which legal scholars have lauded as the most important element of the treaties.26 These clauses constitute a major shift in investment relations because they give investors direct recourse to enforce the trea- ties themselves.Multinational firms who have grievances no longer must convince their own government to pursue their claims but instead may seek redress against the host government directly through international arbitration.This reduces the potential for delay and guarantees that any perceived violation by a BIT-signatory host government can be pursued by firms in a neutral,third-party setting.For our purposes,this also means that treaty violations are singled out by those firms who are directly harmed by noncompliance and who have the strongest incentives to pur- sue such violations.Therefore,to identify possible treaty violations,one can look to the international arbitration venues where these claims are handled. ICSID Disputes as a Source of Information on BIT Compliance BITs typically specify multiple venues through which investors may pursue their grievances,yet among the arbitration options ICSID clearly stands alone as the single most important arbitral venue.27 It is used far more than all other options combined,its strong institutional structure enhances its effectiveness,and most importantly,its proceedings and awards are widely observable.Investors have turned to ICSID to contest foreign governments'violations of BITs more than eight times as frequently as they have turned to all other institutionalized arbitration bodies.28 Moreover,ICSID's prominence is enhanced due to its establishment by an inter- national convention as well as its direct ties to the World Bank.Its functioning is aided by a secretary-general with unique abilities to disregard frivolous cases and to appoint arbitrators as well as a secretariat that disseminates information on ICSID cases and proceedings.Another major source of ICSID's power is that its awards carry the same effect as the judgment of a national court;rulings are legally bind- ing on the parties and the domestic courts of an ICSID member state can be used to enforce the award.29 26.For further discussions of the importance of these clauses,see Dolzer and Stevens 1995;Franck 2007;and Walde 2005. 27.Allee and Peinhardt 2010.Among other institutional arbitration options are the International Chamber of Commerce in Paris,the Stockholm Arbitration Institute,the Arab Investment Court,and the Cairo Regional Centre for International Commercial Arbitration. 28.UNCTAD(2008b,1-2)reports that as of 2007,ICSID had been used 182 times in investor- state dispute settlement while other institutional arbitration options had been used only 21 times.These same UNCTAD data also indicated that 80 treaty-based disputes were addressed using ad hoc arbitra- tion (as compared to instirutionalized arbitration),generally under UNCITRAL rules. 29.See Dolzer and Schreuer 2008,287-90 for an overview of the enforcement process;and Bald- win,Kantor,and Nolan 2006 for specific cases.and in the BIT context this problem is acute given the vastness of the global invest￾ment landscape+ Thankfully, the unique enforcement provisions in BITs provide an important way for compliance to be observed+ As noted earlier, BITs contain investor-state dispute settlement clauses, which legal scholars have lauded as the most important element of the treaties+ 26 These clauses constitute a major shift in investment relations because they give investors direct recourse to enforce the trea￾ties themselves+ Multinational firms who have grievances no longer must convince their own government to pursue their claims but instead may seek redress against the host government directly through international arbitration+ This reduces the potential for delay and guarantees that any perceived violation by a BIT-signatory host government can be pursued by firms in a neutral, third-party setting+ For our purposes, this also means that treaty violations are singled out by those firms who are directly harmed by noncompliance and who have the strongest incentives to pur￾sue such violations+ Therefore, to identify possible treaty violations, one can look to the international arbitration venues where these claims are handled+ ICSID Disputes as a Source of Information on BIT Compliance BITs typically specify multiple venues through which investors may pursue their grievances, yet among the arbitration options ICSID clearly stands alone as the single most important arbitral venue+ 27 It is used far more than all other options combined, its strong institutional structure enhances its effectiveness, and most importantly, its proceedings and awards are widely observable+ Investors have turned to ICSID to contest foreign governments’ violations of BITs more than eight times as frequently as they have turned to all other institutionalized arbitration bodies+ 28 Moreover, ICSID’s prominence is enhanced due to its establishment by an inter￾national convention as well as its direct ties to the World Bank+ Its functioning is aided by a secretary-general with unique abilities to disregard frivolous cases and to appoint arbitrators as well as a secretariat that disseminates information on ICSID cases and proceedings+ Another major source of ICSID’s power is that its awards carry the same effect as the judgment of a national court; rulings are legally bind￾ing on the parties and the domestic courts of an ICSID member state can be used to enforce the award+ 29 26+ For further discussions of the importance of these clauses, see Dolzer and Stevens 1995; Franck 2007; and Wälde 2005+ 27+ Allee and Peinhardt 2010+ Among other institutional arbitration options are the International Chamber of Commerce in Paris, the Stockholm Arbitration Institute, the Arab Investment Court, and the Cairo Regional Centre for International Commercial Arbitration+ 28+ UNCTAD ~2008b, 1–2! reports that as of 2007, ICSID had been used 182 times in investor￾state dispute settlement while other institutional arbitration options had been used only 21 times+ These same UNCTAD data also indicated that 80 treaty-based disputes were addressed using ad hoc arbitra￾tion ~as compared to institutionalized arbitration!, generally under UNCITRAL rules+ 29+ See Dolzer and Schreuer 2008, 287–90 for an overview of the enforcement process; and Bald￾win, Kantor, and Nolan 2006 for specific cases+ 408 International Organization
<<向上翻页向下翻页>>
©2008-现在 cucdc.com 高等教育资讯网 版权所有