Available only in Russian
Author: Iliya Rachkov
Keywords: admissibility of claims, competence (jurisdiction) of international investment arbitration tribunals, foreign investments, foreign investors, host states, international investment law
In international investment law, there are no uniform rules. This is true for both the substantive and the procedural law provisions. There is no single body for resolution of investment disputes either. All this makes the application and the interpretation of international investment law extremely difficult. These difficulties entail non-predictability as to which strategy and tactics the claimant or the respondent shall follow in order to get the dispute resolved in his favour. To protect themselves from foreign investors’ claims, the respondent States hosting investments challenge the competence (jurisdiction) of arbitration tribunals and the admissibility of claims. This is due to the following: if the dispute passes from the first stage (jurisdiction and admissibility of claim) into the next one – the merits stage, statistically the respondent State is less likely to win the case. This article analyses specific examples of how States defend themselves from claims of foreign investors by challenging the competence (jurisdiction) of arbitration tribunals and the admissibility of claims. In the beginning, emphasis is put on the distinction between the notions of “jurisdiction” and “admissibility”. This is followed by specific examples of how respondent States substantiate their arguments that the arbitration tribunal has no jurisdiction over the claim or that the claim is not admissible. The following falls within the first group: the subject matter of the dispute does not qualify as an “investment”; the claimant is not an “investor”; when operating its investment, the investor violated the laws of the host country; the period of limitation expired; the investor abused his rights; protection of the investor’s rights shall be denied; the respondent State filed a counterclaim against the investor; the international treaty to which the investor refers does not constitute the basis for the protection of the investor / his investment; the investor waived his rights; the actions of the persons who violated the investor’s rights are not attributable to the State; the arbitration tribunal is not entitled to solve the dispute at hand.
About the author: Iliya Rachkov – Candidate of Sciences (Ph.D.) in Law, Associate Professor, Moscow State Institute (University) of International Relations, Moscow, Russia.
Citation: Rachkov I. (2018) Resheniya mezhdunarodnykh investitsionnykh arbitrazhey o kompetentsii (yurisdiktsii) i priemlemosti iskov: obzor naibolee primechatel’nykh del za 2016 god [Awards of international investment arbitration tribunals on competence (jurisdiction) and admissibility of claims: an overview of the most remarkable cases for 2016]. Mezhdunarodnoe pravosudie, vol.8, no.3, pp.93–110. (In Russian).
Burova E.S., Koroteeva K.V. (2018) Veter peremen: aktual'nye obsuzhdeniya reformy sistemy razresheniya sporov mezhdu inostrannymi investorami i gosudarstvami [The wind of change: actual discussions on the reform of the system for resolving disputes between foreign investors and states]. Zakon, no.5, pp.153–163. (In Russian).
Kozyakova А. (2017) Delo Urbaser and CABB v. Argentina v mezhdunarodnom investitsionnom arbitrazhe: poisk spravedlivogo balansa mezhdu inostrannym investorom i prinimayushchim gosudarstvom [Case Urbaser and CABB v. Argentina in the international investment arbitration tribunal: search for a fair balance between a foreign investor and the host state]. Mezhdunarodnoe pravosudie, vol.7, no.3, pp.3–18. (In Russian).
Rachkov I. (2014) Byvshie aktsionery “YUKOSa” protiv Rossii: Kommentariy k arbitrazhnomu resheniyu pod egidoy Postoyannoy Palaty Treteyskogo Suda v Gaage [Former shareholders of YUKOS v. Russia: Commentary to the arbitral award under the auspices of the Permanent Court of Arbitration in The Hague]. Mezhdunarodnoe pravosudie, vol.4, no.3, pp.18–34. (In Russian).
Rachkov I.V. (2017) Delo “Rusoro” protiv Venesuely [Rusoro v. Venezuela]. Pravo i biznes, no.3, pp.3–16. (In Russian).
Waibel M. (2015) Investment Arbitration: Jurisdiction and Admissibility. In: Bungenberg M., Griebel J., Hobe S., Reinisch A. (ed.) International Investment Law: A Handbook, München: C.H.Beck; Oxford: Hart; Baden-Baden: Nomos, pp.1212–1287.