Featured LLM Perspectives Online Publications

An Exaggerated Account of ICSID?: A Reply to Professor Robin Broad

INTRODUCTION

In her article “Corporate Bias in the World Bank Groups ICSID: A Case Study of a Global Mining Corporation Suing El Salvador,” Professor Robin Broad uses the example of the pending arbitration dispute of Pacific Rim Cayman LLC v. Republic of El Salvador to make a compelling case for the increasingly evident imbalances in the current regime of the International Centre for the Settlement of Investment Disputes (“ICSID”). The aforementioned case arose out of a dispute between Canadian-based transnational mining corporation Pacific Rim and El Salvador over its failure to authorize an extraction permit after the company allegedly invested millions in the exploration of the El Dorado mine in the northeastern province of Cabañas.01Lauren Carasik, World Bank Threatens El Salvador’s Development, Al Jazeera America News Network, (Apr. 22, 2014), http://america.aljazeera.com/opinions/2014/4/el-salvador-worldbankpacificrimoceangoldmining.html [http://perma.cc/LHY4-HVAY]. While I do share some of Professor Broad’s skepticism and believe that the ICSID system needs reform, I find that her particular claims lack merit both as they pertain to (a) pro-corporate bias in the ICSID system and (b) the lack of consideration for public interests by the ICSID tribunal. In this short comment, I will try to offer a critical narrative of Professor Broad’s claims, and through this process highlight some of the concerns related to the ICSID system and suggest any necessary reforms. My comment is divided into two substantive parts: Part I discusses the issues revolving around the pro-corporate allegations raised by Professor Broad, and Part II addresses the alleged lack of consideration for public interests by ICSID.

IS THERE ANY CORPORATE BIAS AT ICSID?

In her article, Professor Broad alleges that corporate bias is pervasive at ICSID. The basis of her claim regarding this bias is not clear and mainly involves efforts to build a case supporting El Salvador’s position in the Pacific Rim case based on the rhetoric of public good and environmental protection. The reasons she feels corporate bias exists at ICSID are (a) the result of the jurisdictional phase of the Pacific Rim Case;02Robin Broad, Corporate Bias in the World Bank Group’s International Centre for Settlement of Investment Disputes: A Case Study of a Global Mining Corporation Suing El Salvador, 36 U. Pa. J. Int’l L. 851, 864 (2015) [hereinafter “Broad”]. (b) the practice of Third Party funding at ICSID;03Id. at 866. and (c) ICSID awards’ finality and the procedure for annulment of awards.04Id. In this section, I will try to verify the accuracy of all these claims and determine if any corporate bias does exist based on these grounds.

Allowing The Pacific Rim Case To Proceed To The Merits

In her work, Professor Broad alleges that the fact that the Pacific Rimcase has been allowed to proceed to the merits stage is in itself evidence of pro-corporate bias.05Id. at 864. I believe this is a rather exaggerated claim and the jurisdictional decision of the ICSID tribunal provides no such indication of corporate bias.

The Pacific Rim case originated in the early 2000’s when worldwide gold prices began to rise.06Id. at 858. In the midst of this market flux, Canadian mining company Pacific Rim came to El Salvador as the result of a merger with an El Salvadorian company that had an existing exploration license with permission to explore for the duration of the next three years.07Id. (citing Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, El Salvador’s Rejoinder on the Merits, ¶17 (July 11, 2014) [hereinafter “Rejoinder”]).

It is important to note that in El Salvador the process for getting a license to explore minerals is separate from the process for getting approval for the actual exploitation or mining.08Broad, supra note 2 at 858; see also Article 35, Mining Law of El Salvador, Legislative Decree No. 544, Dec. 14, 1995, published in the Official Gazette No. 16, Book 330 of Jan. 24, 1996 (“El Titular de la concesión será dueño de los minerales extraídos, y como tal, podrá comercializarlos libremente, ya sea dentro o fuera del país, siempre que cumpla con las regulaciones que dicte el Ministerio . . . ” ). In order to begin operating a mine, an interested party must provide an Environmental Impact Assessment and a financial feasibility report;09Public Citizen, CAFTA Investor Rights Undermining Democracy and the Environment: Pacific Rim Mining Case, https://www.citizen.org/documents/Pacific_Rim_Backgrounder1.pdf [perma.cc/DSE5-ZR8Y] (last visited Feb 6, 2016). the mere fact that a party has permission to explore a mine site in no way gives it a right to actually exploit the minerals of the mine.

In 2004, after exploring with their existing permit, Pacific Rim applied for an extraction permit.10Julia G. Brown, International Investment Agreements: Regulatory Chill in the Face of Litigious Heat?, 3:1 online: Uwo J. Leg Stud 3, 14 (2013). For the Concession Application, see Conversion of El Dorado Norte and El Dorado Sur Licenses to an El Dorado Exploitation Concession, Dec. 22, 2004. The location for extraction was in the basin of the largest river in El Salvador – the Rio Lempa.11Public Citizen, supra note 9, at 1. In late 2005, Pacific Rim submitted its Environmental Impact Assessment, which was also published in newspapers to allow the local community to provide comments.12Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, Notice of Intent, ¶59−60 (Apr. 30, 2009) [hereinafter “Notice of Intent”]. Local groups and independent scientists found that the Environmental Impact Assessment did not contain details with respect to possible water contamination.13Brown, supra note 10, at 14 (citing Public Citizen, supra note 9, at 2). Further, there were concerns regarding the use of cyanide close to one of the largest and only fresh water resources in El Salvador.14Id. (citing Public Citizen, supra note 9, at 2). This resulted in local groups and coalitions lobbying the government to review national mining laws and deny approval of the mine.15Public Citizen, supra note 9, at 2 The government in turn delayed its response to Pacific Rim, and finally, in 2008, issued a moratorium on all pending permits.16Brown, supra note 10, at 14 (citing Rejoinder, supra note 7, at ¶73−75).

Earlier in December 2007, having already contemplated the option of arbitration, Pacific Rim had reincorporated one of its subsidiaries based in the Cayman Islands in Nevada.17Id. at 14−15 (citing Public Citizen, supra note 9, at 3). As stated previously, Pacific Rim is a Canadian company; since Canada is not a signatory to the Central American Free Trade Agreement-Dominican Republic Trade Agreement (“CAFTA”), Pacific Rim underwent this corporate restructuring and moved part of its company to the United States in order to be able to invoke that agreement.18Broad, supra note 2, at 863. In November 2008, Pacific Rim was purchased by a Canadian-Australian company called Oceana-Gold.19Press Release, Oceana-Gold and Pacific Rim Mining, Oceana-Gold Agrees to Acquire Pacific Rim Mining (Oct 8, 2013), http://www.marketwired.com/press-release/oceanagold-agrees-to-acquire-pacific-rim-mining-tsx-pmu-1838763.htm [perma.cc/52TX-497U].

In 2008, Pacific Rim filed a suit at ICSID under CAFTA and El Salvador’s domestic law, arguing that El Salvador should provide compensation for the lost investment and future profits due to the moratorium.20Notice of Intent, supra note 12. Pacific Rim argued that that they were guaranteed support for their project by the government and subsequent the complete turnaround by the government lacked transparency and was both arbitrary and unfair.21Broad, supra note 2, at 862. Further, Pacific Rim claimed that the El Salvador government discriminated against it, because other industries with comparable environmental impacts received permits at the same time that Pacific Rim was denied one.22Brown, supra note 10, at 15.

El Salvador responded to the claims raised by Pacific Rim by denying that it had breached any of its obligations owed to Pacific Rim, and by stating that Pacific Rim had misrepresented their domestic laws and regulations.23Id. at 15 (citing Rejoinder, supra note 7, at ¶20, ¶125). El Salvador further claimed that Pacific Rim failed to follow proper protocols for issuance of a license, as Pacific Rim did not possess title to a large chunk of the land earmarked for the mining project, failed to secure relevant environmental authorizations, and never submitted the final feasibility study.24Carasik, supra note 1.

In June 2012, the ICSID tribunal issued its decision in the jurisdictional phase of this case, which Professor Broad alleges is evidence of corporate bias at ICSID.25Broad, supra note 2, at 864. As to the CAFTA claim, the Tribunal rightly dismissed it. As stated by Professor Broad herself, the Tribunal dismissed the CAFTA claims because Canada was not a signatory to CAFTA and the Canadian company’s decision to change the nationality of its subsidiary from the Cayman Islands to the United States did not mean the newly established US Company could enjoy the benefits of CAFTA.26Id. at 863. Had there been any corporate bias, the Tribunal would have allowed a claim under CAFTA itself by allowing the Pacific Rim to take advantage of the change in nationality.

Now proceeding to the claim under El Salvador’s domestic law. In relevant part, Article 15 of El Salvador’s domestic Investment Law provides:

In the case of disputes arising between foreign investors and the State, regarding their investment in El Salvador, the investors may submit the dispute to: (a) the International Center for Settlement of Investment Disputes (ICSID), in order to settle the dispute by means of conciliation and arbitration, in accordance with the Convention on Settlement of Investment Disputes Among States and Nationals of other States (ICSID Convention…)27Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, Decision on Respondents’ Jurisdictional Objections, 5.38 (Aug. 2, 2010) (quoting Investment Law Legislative Decree [LEGIS. DECREE] [CIVIL CODE] art. 15 (El. Sal.)) [hereinafter “Pacific Rim Decision”].

El Salvador argued that the ICSID tribunal lacked jurisdiction based on the fact that (a) that Article 15 of the Investment Law does not constitute consent to ICSID jurisdiction;28Pac Rim Decision, supra note 27, at 5.3 (citing Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, Jurisdiction Memorial, §§ 337−378 [hereinafter “Jurisdiction Memorial”]; Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, Jurisdiction Reply, §§ 225−250 [hereinafter “Jurisdiction Reply”]). (b) even if the Investment Law did constitute such consent and did apply to Pacific Rim, its claims are precluded by the failure to initiate conciliation before ICSID arbitration;29Id. (citing Jurisdiction Memorial, supra note 28, at §§ 424−427; Jurisdiction Reply supra note 28, at §§ 253−254). (c) Pacific Rim is not a foreign investor under the Investment Law;30Id. (citing Jurisdiction Memorial, supra note 28 at §§ 379−380; Jurisdiction Reply, §§ 255−261). and (d) the CAFTA waiver precludes jurisdiction under the Investment Law.31Id. (citing Jurisdiction Memorial, supra note 28 at §§ 428−454; Jurisdiction Reply, §§ 262−264). The decision of the Tribunal was based on sufficient well-reasoned and non-biased legal principles. The four claims were decided in favor of the investor based on the following rationales:

(a) Consent

The Tribunal found that Article 15 of the El Salvador’s domestic law does establish consent for the purpose of the ICSID Convention. The Tribunal, following international law principles of treaty interpretation of taking into consideration the words used in the text32Id. and the intention of the government at the time the declaration was made,33Id. at 5.35. found that the wording of Article 15 is clear and unambiguous and provides consent for the purpose of the ICSID Convention. By providing foreign investors with the option of submitting the “disputes arising between foreign investors and the State, regarding their investment in El Salvador” to ICSID, Article 15 of the Investment Law clearly provides the consent of the respondent required by Article 25 of the ICSID Convention, which the investor can accept.34Id. at 5.42.

(b) Failure to Initiate Conciliation Proceedings

As to this issue, the Tribunal found no merit in the argument that if Article 15 constituted consent, Pacific Rim’s claims were precluded for failing to initiate conciliation before arbitration. The Tribunal held that the conjunction “and” in Article 15 of the Investment Law could only mean that both dispute settlement mechanisms provided by the ICSID Convention are available to the Claimant.35Id. The Tribunal found no available evidence of the word “and” meaning that conciliation must be exhausted before initiating arbitration.36Id. Relying on a previous ICSID decision,37Southern Pacific Properties Limited v. Arab Republic of Egypt, ICSID Case No ARB/84/3,3 ICSID Reports 131, Second Decision on Jurisdiction, §102 (1995). the Tribunal stated that once consent has been given by the respondent (as it is in the form of Article 15), it is for the party instituting the proceedings to choose between conciliation and arbitration under the ICSID Convention.38Pac Rim Decision, supra note 27, at 5.42.

(c) Pacific Rim Being a Foreign Investor

The Tribunal found enough evidence to consider Pacific Rim to be a foreign investor. The Tribunal concluded that the definition of “a foreign investor” contained in the Investment Law was sufficiently broad to cover investments such as that made by Pacific Rim.39Pac Rim Decision, supra note 27, at 5.43. Additionally, the fact that Register of the El Salvador’s Ministry of Economy clearly showed that the El Salvadoran Government had always treated Pacific Rim as a foreign investor rendered superfluous any discussion regarding the investment’s foreign status.40Id.

(d) Applicability of the CAFTA Waiver

With respect to the CAFTA waiver, the Tribunal found no juridical difficulty in having an ICSID arbitration based on different claims arising from separate investment protections and separate but identical arbitration provisions (i.e., CAFTA and the Investment Law).41Id. at 5.45. The Tribunal held that, when consent to the same tribunal´s jurisdiction is contained in two or more instruments, El Salvador’s suggestion that different ICSID arbitrations must be commenced under each instrument would render null the natural inclinations of both investors and States for fairness, consistency, and procedural efficiency in international arbitration.42Id. Further, it also stated that its jurisdiction to decide the claims in this ICSID arbitration was not affected by its rejection of Pacific Rim’s CAFTA Claims.43Id. at 5.46. The Tribunal accepted Pacific Rim’s submission that:

“Claimant commenced this proceeding by both invoking CAFTA and the Investment Law, and the Tribunal has already held that this dual invocation of consent did not violate Claimant´s waiver provision. Where the commencement of the proceeding did not violate the waiver, it can hardly be imagined that its continuation would somehow do so, regardless of which claims go forward and which do not.”44Id. at 5.47.

For these reasons, there is no evidence of pro-corporate bias in the reasoning behind the case proceeding to the merits stage; the decision on the four claims had its basis in recognized principles of international law, prior practice, case law, estoppel by the host State, principles of fairness, and logical reasoning. Although a very strict interpretation of the domestic law and a pro-State stand by the ICSID tribunal could have turned the scales in the opposite direction, the decision in no way indicates that the Tribunal was taking an unduly a pro-investor stand.

Third Party Funding At ICSID

Another of Professor Broad’s arguments for the pro-corporate bias of the ICSID system relates to Pacific Rim’s purchase by the larger and richer Australian/American mining company Ocean gold, which subsequently funded the arbitration while the claimant in the case remained Pacific Rim.45Broad, supra note 2, at 866. While this is just a coincidence and not third party funding in its true sense,46See Pia Eberhardt & Cecilia Olivet, Profiting from Injustice 56−63 (2012) (describing third party funding is traditionally when a financial company funds litigation in exchange for a share in the outcome of the case) [hereinafter “Pia Eberhardt & Cecilia Olivet”]. she alleges that this creates an inequitable situation: if El Salvador wins, it would have access only to resources of Pacific Rim – which according to her research is essentially an “on paper company” – whereas Pacific Rim has unlimited financial resources to fight the case.47Broad, supra note 2, at 866. This imbalance is the standard problem with third party funding.

Her criticism of such “third party funding,” while definitely intriguing and serving to highlight a particular problem with the ICSID system, does not provide the whole story. In particular, Professor Broad’s attack on the ICSID structure is incomplete and thus lacks merit. In the following part, I will examine the claims of pro-corporate bias with respect to the practice of third party funding at ICSID primarily with regards to three areas: (a) the main alleged problem with third party funding; (b) the ICSID case law regarding third party funding; and (c) the analysis of the existing system.

Criticisms of Third Party Funding at ICSID

As discussed previously, the basis of Professor Broad’s criticism is the possibility of El Salvador being the loser even if it wins the ICSID arbitration. Third party funding has been subjected to severe criticism, mainly due to the lack of transparency regarding the practice and the necessity of security for costs.48Carlos González-Bueno, Third Party Funding Again Under the Spotlight, Kluwer Arbitration Blog (Oct. 8, 2014), http://kluwerarbitrationblog.com/2014/10/08/third-party-funding-again-under-the-spotlight/#fnref-10894-4 [perma.cc/25CG-X4M2].

The first criticism stems from concerns regarding arbitrator’s impartiality and independence. As Gonzales-Buenos states, this predicament might arise if an arbitrator taking part in a proceeding in which one of the parties is funded by a third party could be serving as a State representative in another proceeding in which the claim was funded by the same funder.49Id. The fact that the funder could eventually pay the arbitrators remuneration in the second proceeding could raise serious of conflict of interests concerns.50Id. Considering the close-knit circle of arbitrators, the possibility of such an occurrence is extremely high.51Pia Eberhardt & Cecilia Olivet, supra note 46, at 34−55 (showing how there is a close knit circle of individuals who appear as counsels or arbitrators in most ICSID cases therefore the chances are pretty high for an arbitrator in one case to be a counsel in another).

The second criticism – which is essentially the issue Professor Broad raises – is the State party’s inability to recover costs even when it secures a favorable outcome. This is mainly since ICSID would lack the necessary authority to order a third party funder to pay advances on costs, since the funder is neither a signatory to the arbitration agreement nor a party to the arbitration itself.52Carlos González-Bueno, supra note 48. Below, I discuss how ICSID has dealt with the issue of third party funding.

ICSID and Third Party Funding

In recent years, as third party funding has become more common, ICSID tribunals have recognized the issues related to third party funding and have adjusted accordingly. The current ICSID case law related to third party funding has been serving the ends of justice and the original purpose of ICSID. As far as the issue of disclosure of third party funding is concerned, the two latest cases from ICSID are EuroGas Inc., and Belmont Resources Inc. v. Slovak Republic53EuroGas Inc and Belmont Resources Inc. v. Slovak Republic, ICSID Case No ARB/14/14, Transcript of the First Session and Hearing on Provisional Measures, 145 (Mar. 17, 2015) [hereinafter “EuroGas”]. and Muhammet Cap & Sehil Insaat Endustri ve Ticaret Ltd., Sti. v. Turkmenistan.54Muhammet Cap & Sehil Insaat Endustri ve Ticaret Ltd., Sti. v. Turkmenistan, ICSID Case No ARB/12/6, Procedural Order No 2 (April 11, 2014) [hereinafter “Muhammet Cap”]. In both, the respective tribunal ordered the investors to disclose details of their third party funding.55Jean-Christophe Honlet, Recent decisions on third-party funding in investment arbitration, 30:3 ICSID Review, 699–712 (2015). In particular, the tribunals laid down the following reasons for allowing disclosure: (i) to avoid a conflict of interest for the arbitrator as a result of the third-party funder; (ii) for transparency and to identify the true party to the case; (iii) for the Tribunal to decide fairly how costs should be allocated at the end of any arbitration; (iv) if there is an application of security for costs; and (v) to ensure that confidential information which may come out during the arbitral proceedings is not disclosed to parties with ulterior motives.56Muhammet Cap, supra note 54, at 10.

Additionally, when it comes to the issue of security for costs, the most pertinent case law is that of RSM Production Corporation v. Saint Lucia.57RSM Production Corporation v. Saint Lucia, ICSID Case No ARB/12/10, Decision on Saint Lucia’s Request for Security for Costs, ¶¶26–37(Aug 13, 2014) [hereinafter “RSM”]. In this case, the ICSID tribunal invoked its power to preserve rights under Article 4758See Article 47, Convention on the Settlement of Investment Disputes between States and Nationals of Other States, as amended Apr. 10, 2006, Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159 (“Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party”) [hereinafter “ICSID Convention”]. of the ICSID Convention in conjunction with Rule 39(1)59See Rule 39 (1), Rules of Procedure for Arbitration Proceedings ICSID (“At any time after the institution of the proceeding, a party may request that provisional measures for the preservation of its rights be recommended by the Tribunal. The request shall specify the rights to be preserved, the measures the recommendation of which is requested, and the circumstances that require such measures”). of the ICSID arbitration rules and ordered RSM Production Corporation to pay security for costs in the pending arbitration.60RSM, supra note 57, at ¶¶46−90. The decision, as stated by the tribunal, was based on three elements: the claimant’s proven history of non-payment, its admitted lack of financial resources, and the presence of third-party funders.61Carlos González-Bueno, supra note 48. The objective of that decision was that third-party funders should also bear a risk of adverse decisions on costs, which was precisely the problem Professor Broad has highlighted.62Id. Therefore, contrary to allegations otherwise, not only have ICSID tribunals ordered parties to disclose details of their third party funding, but also ordered parties in cases of third-party funding to pay security costs pending arbitration where there was a genuine concern regarding chances of non-payment.

The System As It Exists

While the tribunal in EuroGas Inc. and Belmont Resources Inc. v. Slovak Republic ordered the investor to disclose identity of its third party funding, the tribunal in the case of Muhammet Cap & Sehil Insaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan further ordered the party to disclose the terms of its funding.63Jean-Christophe Honlet, supra note 55, at 708. These two cases definitely point towards a new regime where third party funders can no longer remain obscured. ICSID tribunals are no longer hesitant to order disclosure if sufficient grounds to justify it exist.64See Muhammet Cap, supra note 54, at ¶10 (stating the significant justification should exist to compel a disclosure).

With respect to ordering payment of security costs, in the RSM Production Corporation v. Saint Lucia case, the tribunal invoked its power to protect rights of the parties. In doing so, the tribunal identified the presence of exceptional circumstances that called for a provisional award ordering security for costs.65RSM, supra note 57, at ¶¶75−87. The tribunal recognized that there existed a need for protection in the particular circumstances since the claimant had shown a history of non-compliance with prior ICSID awards.66Id. at ¶¶77−82. Furthermore, the tribunal opined that it appeared unlikely that the third party would honor payment of costs in the absence of securities or guarantees.67RSM, supra note 57, at ¶83. Therefore, the Tribunal considered it inappropriate to wait for the final arbitral award and consequently it ordered the payment of costs.68Carlos González-Bueno, supra note 48. As stated before, the tribunal stated three elements on which it based its decision: the claimant’s proven history of non-payment, its admitted lack of financial resources, and the presence of third-party funders. This reasoning seems a rather fair approach to balancing the rights of both the state and the investor in light of the object and principles of ICSID.

Critics of the ICSID system would point to another recent decision, Eurogas and Belmont v. The Slovak Republic,69EuroGas, supra note 53. where the Tribunal refused an application for security of costs. However, the tribunal in this case differentiated the latter case from RSM Production by referencing back to the three elements and showing how all three elements were absent in the Eurogas v. Belmont case.70ICSID tribunal refuses security for costs application, Harbour Litigation Funding (July 30, 2015), http://www.harbourlitigationfunding.com/icsid-tribunal-refuses-security-for-costs-application/ [perma.cc/N4U4-LE8Y].

The cases dealt with above show how Professor Broad’s concerns regarding third party funding at ICSID are exaggerated, as ICSID tribunals have shown their ability to ensure that none of Professor Broad’s hypothetical problems actually occur. If there is a genuine concern regarding Professor Broad’s claims in the Pacific Rim case, an argument for security of costs should be made by El Salvador and there is no reason to believe the Tribunal would not order the costs to be paid if appropriate under the circumstances. While some critics would want security for costs whenever third party funding is present, such an approach would involve “taking a step back,” since it might result in a situation where “parties are no longer willing to disclose the existence of a third party funder.”71Carlos González-Bueno, supra note 48. This approach and consequent lack of disclosure would invariably result in situations where there might be serious questions regarding arbitrators’ impartiality and independence. Thus, the regime for third party funding as it exists currently at ICSID is in accordance with the aims and objectives of not only ICSID but also of investor-State arbitration in general. At the end of the day, fora like ICSID were established to safeguard investors from arbitrary actions by States, and any excessively pro-State position would threaten the very foundation of investor-State arbitration.

Finality Of Awards At ICSID

Another criticism highlighted by Professor Broad related to the Pacific Rim case – a case which had not yet been decided beyond the jurisdictional stages – is the annulment procedure under ICSID. Professor Broad bases her allegations of ICSID’s pro-corporate bias partially on the fact that ICSID awards cannot be appealed on judicial grounds and that the ICSID Convention only allows the annulment of awards in cases of limited procedural errors made during the decisional process.72Broad, supra note 4, at 866.

At the start, it is imperative to understand the manner in which annulment under ICSID works. Article 52(3) of the ICSID Convention permits an ad hoc committee to annul an award if at least one of the five grounds for annulment set out in Article 52(1) is met: (a) the Tribunal was not properly constituted; (b) it manifestly exceeded its powers; (c) an arbitrator was corrupt; (d) there was a serious departure from procedure; or (e) the Tribunal failed to state the reason for its decision.73ICSID Convention, supra note 55, at Article 52(3). The way the current system works is that if the tribunal has erred in its judgement, the ad hoc committee cannot annul the award as long as the tribunal stated its reasons for an award or did not exceed its power or depart from procedure. In fact, there are instances, such as in CMS v. Argentina,74CMS Gas Transmission Company v. Argentine Republic, ICSID Case No. ARB/01/8, Decision on Application for Annulment (Sept 25, 2007). where ad hoc committees have extensively criticized the substance of decisions but did not annul the questionable portions of those awards because the high standard for annulment was not reached.75Sebastian Perry, Does ICSID need an Overhaul?, Latin Lawyer (2012), http://www.curtis.com/siteFiles/News/Does%20ICSID%20Need%20an%20Overhaul.pdf [perma.cc/WB6T-UWEJ].

Now proceeding to Professor Broad’s criticism regarding this process, she argues that the way ICSID awards’ finality works is detrimental to the interests of States and unduly favors corporations.76Broad, supra note 2, at 866. This criticism is flawed for two reasons. First, in the history of investor-State arbitration, forty percent cases have been decided in favor of the State and another thirty percent have been settled.77Pia Eberhardt, A response to the critics of Profiting from Injustice, Kluwer Arbitration Blog, (Jan 2, 2013), http://kluwerarbitrationblog.com/2013/01/02/a-response-to-the-critics-of-profiting-from-injustice/ [perma.cc/2ED2-VJ4Z]. Thus, more often than or not, the final outcome of the case has been conducive to the State and a rigid annulment procedure does not harm its interests. Secondly, States have consented to such a mechanism of dispute settlement after taking into account the various costs and benefits, and therefore it is unfair to question a system to which States themselves have agreed. As stated by Tai-Heng-Chen, it is the State parties that chose to create a structure of dispute resolution that allowed awards that were wrong on the law or even the facts to remain legally binding under international law, and therefore if States later find themselves on the losing end of an unfair award without any ability to overturn the award, that result is nothing more or less than what they consented to when they signed the ICSID Convention.78Tai-Heng Cheng, Reconsidering ICSID Awards, Kluwer Arbitration Blog, (May 11, 2011), http://kluwerarbitrationblog.com/2011/05/11/reconsidering-icsid-awards/ [perma.cc/D7JA-HE85].

In fact, some decades ago when awards were annulled by ad hoc committees on what such committees considered failure to state reasons for the award in cases where tribunals failed to state “reasonably acceptable” or “sufficiently relevant” reasoning for an award, scholars criticized this approach as one that would lead to a regime where awards were easily annulled and finality was delayed, which would unacceptably increase the costs of dispute resolution.79Id.

This procedure under ICSID, if biased at all, is biased against the investor, who never had the chance to negotiate the provisions of the ICSID Convention.80Id. However, that said, the finality of the existing award system under ICSID is not free from flaws and definitely needs reform. Professor Broad, while wrongly analyzing the effects of the ICSID annulment procedure, definitely raises an important problem within the ICSID structure. The ICSID Convention as it stands only allows the parties to submit a request for clarification.81See ICSID Convention, supra note 54, at Article 50(1) (“If any dispute shall arise between the parties as to the meaning or scope of an award, either party may request interpretation of the award by an application in writing addressed to the Secretary-General”). A possible reform, as Tai-Heng-Chen suggests, is also allowing the ICSID tribunal to reconsider their award.82Tai-Heng Cheng, supra note 78. Allowing this reform would not only allow parties to understand portions of the award they found vague but also allow the tribunal to reevaluate facts or law that the tribunal overlooked.83Id. This reform would in fact have advantages over a possible appeal process, which scholars like Professor Broad seem to advocate, by taking less time, involving less briefing, and incurring lower counsel and arbitrator expenses than an appeal process.84Id.

Thus, in conclusion, while the current system of finality of ICSID awards definitely leaves much to be desired and reform is necessary, such a structure is anything but pro-investor.

ARE ICSID DECISIONS INCOMPATIBILE WITH THE PUBLIC INTEREST?

Another criticism of the ICSID regime that Professor Broad makes without much evidence is that the ICSID regime is incompatible with public interests. There is absolutely no evidence for this assertion. In this section, I address this claim by discussing: (a) how absolutely no evidence exists to support this claim; (b) the rationale behind contentious ICSID cases; and (c) how ICSID jurisprudence has sufficient room to accommodate public interests.

Lack of Evidence

A lot of critics of the system, like Professor Broad, make claims that ICSID case law is incompatible with public interests; some academics use rhetoric like “[I]nterpretations have prioritized the protection of the property and economic interests of transnational corporations over the right of states to regulate and the sovereign right of nations to govern their own affairs.”85Open Letter from Lawyers to the Negotiators of the Trans-Pacific Partnership Urging the Rejection of Investor-State Dispute Settlement, Tpp Legal (May 8, 2012), http://tpplegal.wordpress.com/open-letter/ [perma.cc/DH8B-P5JJ]. Even UNCTAD has made similar claims, stating that there is a conflict between investment treaties and sustainable development.86World Investment Report 2012: Towards A New Generation of Investment Policies, UNCTAD (2004), http://unctad.org/en/PublicationsLibrary/wir2012_embargoed_en.pdf.

Despite the prevalence of such claims in the literature, none of them have ever been substantiated with evidence.87Honorable Charles N. Brower & Sadie Blanchard, What’s in a Meme? The Truth about Investor-State Arbitration: Why It Need Not, And Must Not, Be Repossessed by States, 52 Colum. J. Transnat’l L. 689 (2014) [hereinafter Charles N. Brower & Sadie Blanchard]. In fact, the UNCTAD report does not mention a single instance in which an investor-State tribunal hindered a legitimate protection measure or explained how investor-State arbitration undermines sustainable development in countries.88Id. at 698. On the contrary, there is evidence that international investment protection goes hand in hand with the promotion of values such as human rights, environmental protection, and the rule of law.89Charles N. Brower & Sadie Blanchard, supra note 87, at 699. As the renowned investment law expert Professor Christopher Schreuer states, this particular criticism is hardly backed by evidence and often is “substantiated” by incomplete examples.90Christopher Schreuer, Why Still ICSID?, http://www.univie.ac.at/intlaw/wordpress/pdf/why_still_icsid.pdf [perma.cc/9CSJ-E99X] (last visited Feb. 6, 2016). He provides a particular example where an NGO representative used the Methanex case to illustrate the danger posed by investment arbitration to efforts at environmental conservation.91Id. at 2. The NGO representative gave an elaborate description of the risks posed by methanol to water resources.92Christopher Schreuer, supra note 90, at 2. The NGO representative also described the various measures taken by States in response to this water pollution and the arguments put forward by Methanex before the Tribunal in support of its case.93Id. However, what the NGO representative omitted from his presentation was the outcome of the case – that the Claimant did not succeed on any of its claims.94Id. This is the kind of exercise most critics of the ICSID system have engaged in. In her article, Professor Broad has also largely been guilty of the same crime as the NGO representative – telling an incomplete story and not substantiating her claims with any evidence.

The Reasons Behind Certain ICSID Cases

The previous section highlighted the fact that no empirical evidence exists to support the allegation that ICSID case law is not compatible with public interests. Critics of the system point to certain ICSID cases as evidence for their assertion; however, they never sufficiently analyze the reasoning behind these decisions. In this section, I will discuss these oft-cited cases that are used as illustrations of ICSID tribunals allegedly ignoring public interest concerns and deciding in favor of the investors,95Charles N. Brower & Sadie Blanchard, supra note 87, at 738. and show how these examples are not what they appear at first blush and definitely not what ICSID critics portray them to be. The four cases that I focus upon in this section are Unglaube v. Costa Rica, Santa Elena v. Costa Rica, Metalclad v. Mexico [“Metalclad”], and Técnicas Medioambientales Tecmed SA v. Mexico [“Tecmed”].

In the first two cases, it was not disputed whether expropriation had occurred or not; rather, the dispute was over what compensation was due, and thus the entire discussion on which administrative and regulatory actions amounted to expropriation was only to determine whenthe admitted expropriation took place for the purpose of calculating damages.96See Id. at 736 (citing Santa Elena v. Republic of Costa Rica, ICSID Case No. ARB/96/1, Final Award, ¶¶ 76−81 (Feb. 17, 2000) and Unglaube v. Republic of Costa Rica, ICSID Case Nos. ARB/08/1, ARB/09/20, Award, ¶28, 135–37, 209–21 (2012) [hereinafter “Unglaube”])). Even where the Tribunal was considering whether certain actions amounted to a breach of fair and equitable treatment, it followed a very lenient approach and held no breach existed when the State’s action was based on protecting the environment even when the measure lacked scientific justification.97See Id. at 747 (citing Unglaube at ¶255, 286).

In the case of Metalclad, which dealt with the closing of a landfill, the tribunal’s finding of expropriation was based on the fact that the alleged expropriation occurred in response to factors like opposition of the local population and not in accordance with any non-discriminatory public purpose.98Metalclad Corp. v. United Mexican States, ICSID Case No. ARB(AF)/97/1, Final Award, ¶92, ¶104−106 (2000). In fact, Mexico did not even deny that the landfill posed no environmental risk; rather, all evidence in response to local opposition showed how the landfill operations were “consistent with, and sensitive to environmental concerns.”99See Charles N. Brower & Sadie Blanchard, supra note 87, at 736 (Citing Metalclad ¶75−102)

Similarly, in Tecmed, the claimant had purchased a landfill that had been run by a municipal corporation.100Id. Tecmed had acquired all necessary environmental permits to operate the landfill.101Id. However, in response to social and political circumstances the authorities issued orders denying Tecmed’s permits renewals resulting in the ceasing of operations of the landfill.102Técnicas Medioambientales Tecmed SA v Mexico, Award, ARB(AF)/00/2, 10 ICSID Rep 130, ¶ 127–33 (2003). At every given point during the factual stages of the case, the landfill operated in accordance with all laws and regulations.103See Charles N. Brower & Sadie Blanchard, supra note 87, at 736 (citing the final award in Técnicas Medioambientales Tecmed SA v Mexico). Further, no governmental or regulatory authority had made any adverse finding that warranted a serious sanction.104Id. Additionally, in both Metalclad and Tecmed, the investors had received assurances from the government regarding the permissibility of their activities.105Id. at 739.

Thus, it can be seen that in all these cases which are cited as evidence of ICSID tribunals’ disregard for public interests, there were many additional considerations which led to the tribunals’ awards in favor of the investors. In fact, most of these decisions were obvious rulings as the consequence of completely arbitrary and unfair actions by States, rather than any bias by the tribunals.

How Case Law Has Room to Accommodate Public Interests

Contrary to Professor Broad’s claims, investment arbitration tribunals such as those under ICSID have in fact paid heed to and tried to accommodate public interests. For example, in Unglaube v. Costa Rica, the tribunal recognized a State’s right to take regulatory actions to protect the environment.106Unglaube, supra note 96, at ¶166. Additionally, in the same case, the tribunal acknowledged how governments are accorded deference regarding the regulation of matters within their sovereign domain for the protection of areas like public health, safety, morals or welfare, functions related to taxation, and police powers of States.107Id. at ¶246. It opined that States are required only to refrain from actions that are arbitrary or discriminatory.108Id. at ¶247. In fact, the tribunal reiterated and confirmed that States have the power to expropriate properties in accordance with law and in cases that serve public interests.109Id. at ¶166, ¶205.

Likewise, the same can be said of other investment tribunals. The UNCITRAL tribunal in Chemtura v. Canada, a case which involved restrictions imposed on the use of the pesticide lindane, affirmatively stated how investment tribunals should show deference to public concerns, regardless of the factual accuracy of such concerns.110See Charles N. Brower & Sadie Blanchard, supra note 86, at 741 (citing Chemtura Corporation v Canada, UNICTRAL Award, IIC 451, ¶135 (2010) [hereinafter “Chemtura”]). The tribunal held that “[i]rrespective of the state of the science . . . the Tribunal cannot ignore the fact that lindane has raised increasingly serious concerns.111Chemtura. supra note 110, at ¶135.

While there are numerous other cases (whose discussion is beyond the scope of this comment) that show how ICSID tribunals and other investment tribunals have shown concern for public interests, these two cases summarize the essence of how the jurisprudence of such tribunals accommodate public interests. Contrary to popular belief, ICSID jurisprudence in fact does not penalize States for taking regulatory measures to protect public interests, as long as they are not arbitrary or discriminatory. It is pertinent that in no ICSID case and in only one case112Charles N. Brower & Sadie Blanchard, supra note 87, at ¶747. arising out of an investment treaty (S.D Myers v. Canada) has an environmental regulatory measure been held to violate a fair and equitable standard,113S.D. Myers v. Canada, UNCITRAL Partial Award, ¶194–95 (2000). and that in this case too, the regulatory measure was imposed with the intent to protect and promote the market share of enterprises.114Id. at ¶162.

CONCLUSION

This comment analyzed Professor Broad’s claims regarding pro-corporate bias at ICSID. Most of Professor Broad’s claims were based on rhetoric and incomplete analysis of facts and the law. Professor Broad’s claims, ranging from her criticism of the result of the jurisdictional phase of the Pacific Rim decision to ICSID’s handling of third party funding to the ICSID annulment procedure, are largely unsubstantiated. The jurisdictional phase’s decision dealing with the CAFTA claims reveals an anti-investor bias, if any bias exists at all. ICSID’s handling of third party funding shows ICSID tribunals efficiently balance the interests of the State and the investor. Even with regards to deliberating on cases involving public interests, ICSID tribunals, while hardly having socialist leanings, nonetheless showed remarkable deference to States in cases where large scale public concerns were at play. Professor Broad’s only meritorious claim is that concerning the ICSID award annulment procedure; though I fail to see how the annulment procedure at ICSID evidences the alleged bias, I must agree that the annulment procedure at ICSID definitely needs reform. The annulment procedure is so rigid that some experts believe that only awards rendered by an extraordinarily incompetent tribunal composed of three complete “clowns” can be annulled.115Perry, supra note 75.

In conclusion, the ICSID regime surely has its flaws, but nowhere near the magnitude that its critics claim. Certain trends at ICSID, especially the close-knit network of lawyers at ICSID, the rigidness of the awards, and the lack of consistency of awards need to be reevaluated, but there is no evidence to support the allegations of substantial, consistent pro-investor bias.

References   [ + ]

01. Lauren Carasik, World Bank Threatens El Salvador’s Development, Al Jazeera America News Network, (Apr. 22, 2014), http://america.aljazeera.com/opinions/2014/4/el-salvador-worldbankpacificrimoceangoldmining.html [http://perma.cc/LHY4-HVAY].
02. Robin Broad, Corporate Bias in the World Bank Group’s International Centre for Settlement of Investment Disputes: A Case Study of a Global Mining Corporation Suing El Salvador, 36 U. Pa. J. Int’l L. 851, 864 (2015) [hereinafter “Broad”].
03. Id. at 866.
04. Id.
05. Id. at 864.
06. Id. at 858.
07. Id. (citing Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, El Salvador’s Rejoinder on the Merits, ¶17 (July 11, 2014) [hereinafter “Rejoinder”]).
08. Broad, supra note 2 at 858; see also Article 35, Mining Law of El Salvador, Legislative Decree No. 544, Dec. 14, 1995, published in the Official Gazette No. 16, Book 330 of Jan. 24, 1996 (“El Titular de la concesión será dueño de los minerales extraídos, y como tal, podrá comercializarlos libremente, ya sea dentro o fuera del país, siempre que cumpla con las regulaciones que dicte el Ministerio . . . ” ).
09. Public Citizen, CAFTA Investor Rights Undermining Democracy and the Environment: Pacific Rim Mining Case, https://www.citizen.org/documents/Pacific_Rim_Backgrounder1.pdf [perma.cc/DSE5-ZR8Y] (last visited Feb 6, 2016).
10. Julia G. Brown, International Investment Agreements: Regulatory Chill in the Face of Litigious Heat?, 3:1 online: Uwo J. Leg Stud 3, 14 (2013). For the Concession Application, see Conversion of El Dorado Norte and El Dorado Sur Licenses to an El Dorado Exploitation Concession, Dec. 22, 2004.
11. Public Citizen, supra note 9, at 1.
12. Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, Notice of Intent, ¶59−60 (Apr. 30, 2009) [hereinafter “Notice of Intent”].
13. Brown, supra note 10, at 14 (citing Public Citizen, supra note 9, at 2).
14. Id. (citing Public Citizen, supra note 9, at 2).
15. Public Citizen, supra note 9, at 2
16. Brown, supra note 10, at 14 (citing Rejoinder, supra note 7, at ¶73−75).
17. Id. at 14−15 (citing Public Citizen, supra note 9, at 3).
18. Broad, supra note 2, at 863.
19. Press Release, Oceana-Gold and Pacific Rim Mining, Oceana-Gold Agrees to Acquire Pacific Rim Mining (Oct 8, 2013), http://www.marketwired.com/press-release/oceanagold-agrees-to-acquire-pacific-rim-mining-tsx-pmu-1838763.htm [perma.cc/52TX-497U].
20. Notice of Intent, supra note 12.
21. Broad, supra note 2, at 862.
22. Brown, supra note 10, at 15.
23. Id. at 15 (citing Rejoinder, supra note 7, at ¶20, ¶125).
24. Carasik, supra note 1.
25. Broad, supra note 2, at 864.
26. Id. at 863.
27. Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, Decision on Respondents’ Jurisdictional Objections, 5.38 (Aug. 2, 2010) (quoting Investment Law Legislative Decree [LEGIS. DECREE] [CIVIL CODE] art. 15 (El. Sal.)) [hereinafter “Pacific Rim Decision”].
28. Pac Rim Decision, supra note 27, at 5.3 (citing Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, Jurisdiction Memorial, §§ 337−378 [hereinafter “Jurisdiction Memorial”]; Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, Jurisdiction Reply, §§ 225−250 [hereinafter “Jurisdiction Reply”]).
29. Id. (citing Jurisdiction Memorial, supra note 28, at §§ 424−427; Jurisdiction Reply supra note 28, at §§ 253−254).
30. Id. (citing Jurisdiction Memorial, supra note 28 at §§ 379−380; Jurisdiction Reply, §§ 255−261).
31. Id. (citing Jurisdiction Memorial, supra note 28 at §§ 428−454; Jurisdiction Reply, §§ 262−264).
32. Id.
33. Id. at 5.35.
34. Id. at 5.42.
35. Id.
36. Id.
37. Southern Pacific Properties Limited v. Arab Republic of Egypt, ICSID Case No ARB/84/3,3 ICSID Reports 131, Second Decision on Jurisdiction, §102 (1995).
38. Pac Rim Decision, supra note 27, at 5.42.
39. Pac Rim Decision, supra note 27, at 5.43.
40. Id.
41. Id. at 5.45.
42. Id.
43. Id. at 5.46.
44. Id. at 5.47.
45. Broad, supra note 2, at 866.
46. See Pia Eberhardt & Cecilia Olivet, Profiting from Injustice 56−63 (2012) (describing third party funding is traditionally when a financial company funds litigation in exchange for a share in the outcome of the case) [hereinafter “Pia Eberhardt & Cecilia Olivet”].
47. Broad, supra note 2, at 866.
48. Carlos González-Bueno, Third Party Funding Again Under the Spotlight, Kluwer Arbitration Blog (Oct. 8, 2014), http://kluwerarbitrationblog.com/2014/10/08/third-party-funding-again-under-the-spotlight/#fnref-10894-4 [perma.cc/25CG-X4M2].
49. Id.
50. Id.
51. Pia Eberhardt & Cecilia Olivet, supra note 46, at 34−55 (showing how there is a close knit circle of individuals who appear as counsels or arbitrators in most ICSID cases therefore the chances are pretty high for an arbitrator in one case to be a counsel in another).
52. Carlos González-Bueno, supra note 48.
53. EuroGas Inc and Belmont Resources Inc. v. Slovak Republic, ICSID Case No ARB/14/14, Transcript of the First Session and Hearing on Provisional Measures, 145 (Mar. 17, 2015) [hereinafter “EuroGas”].
54. Muhammet Cap & Sehil Insaat Endustri ve Ticaret Ltd., Sti. v. Turkmenistan, ICSID Case No ARB/12/6, Procedural Order No 2 (April 11, 2014) [hereinafter “Muhammet Cap”].
55. Jean-Christophe Honlet, Recent decisions on third-party funding in investment arbitration, 30:3 ICSID Review, 699–712 (2015).
56. Muhammet Cap, supra note 54, at 10.
57. RSM Production Corporation v. Saint Lucia, ICSID Case No ARB/12/10, Decision on Saint Lucia’s Request for Security for Costs, ¶¶26–37(Aug 13, 2014) [hereinafter “RSM”].
58. See Article 47, Convention on the Settlement of Investment Disputes between States and Nationals of Other States, as amended Apr. 10, 2006, Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159 (“Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party”) [hereinafter “ICSID Convention”].
59. See Rule 39 (1), Rules of Procedure for Arbitration Proceedings ICSID (“At any time after the institution of the proceeding, a party may request that provisional measures for the preservation of its rights be recommended by the Tribunal. The request shall specify the rights to be preserved, the measures the recommendation of which is requested, and the circumstances that require such measures”).
60. RSM, supra note 57, at ¶¶46−90.
61. Carlos González-Bueno, supra note 48.
62. Id.
63. Jean-Christophe Honlet, supra note 55, at 708.
64. See Muhammet Cap, supra note 54, at ¶10 (stating the significant justification should exist to compel a disclosure).
65. RSM, supra note 57, at ¶¶75−87.
66. Id. at ¶¶77−82.
67. RSM, supra note 57, at ¶83.
68. Carlos González-Bueno, supra note 48.
69. EuroGas, supra note 53.
70. ICSID tribunal refuses security for costs application, Harbour Litigation Funding (July 30, 2015), http://www.harbourlitigationfunding.com/icsid-tribunal-refuses-security-for-costs-application/ [perma.cc/N4U4-LE8Y].
71. Carlos González-Bueno, supra note 48.
72. Broad, supra note 4, at 866.
73. ICSID Convention, supra note 55, at Article 52(3).
74. CMS Gas Transmission Company v. Argentine Republic, ICSID Case No. ARB/01/8, Decision on Application for Annulment (Sept 25, 2007).
75. Sebastian Perry, Does ICSID need an Overhaul?, Latin Lawyer (2012), http://www.curtis.com/siteFiles/News/Does%20ICSID%20Need%20an%20Overhaul.pdf [perma.cc/WB6T-UWEJ].
76. Broad, supra note 2, at 866.
77. Pia Eberhardt, A response to the critics of Profiting from Injustice, Kluwer Arbitration Blog, (Jan 2, 2013), http://kluwerarbitrationblog.com/2013/01/02/a-response-to-the-critics-of-profiting-from-injustice/ [perma.cc/2ED2-VJ4Z].
78. Tai-Heng Cheng, Reconsidering ICSID Awards, Kluwer Arbitration Blog, (May 11, 2011), http://kluwerarbitrationblog.com/2011/05/11/reconsidering-icsid-awards/ [perma.cc/D7JA-HE85].
79. Id.
80. Id.
81. See ICSID Convention, supra note 54, at Article 50(1) (“If any dispute shall arise between the parties as to the meaning or scope of an award, either party may request interpretation of the award by an application in writing addressed to the Secretary-General”).
82. Tai-Heng Cheng, supra note 78.
83. Id.
84. Id.
85. Open Letter from Lawyers to the Negotiators of the Trans-Pacific Partnership Urging the Rejection of Investor-State Dispute Settlement, Tpp Legal (May 8, 2012), http://tpplegal.wordpress.com/open-letter/ [perma.cc/DH8B-P5JJ].
86. World Investment Report 2012: Towards A New Generation of Investment Policies, UNCTAD (2004), http://unctad.org/en/PublicationsLibrary/wir2012_embargoed_en.pdf.
87. Honorable Charles N. Brower & Sadie Blanchard, What’s in a Meme? The Truth about Investor-State Arbitration: Why It Need Not, And Must Not, Be Repossessed by States, 52 Colum. J. Transnat’l L. 689 (2014) [hereinafter Charles N. Brower & Sadie Blanchard].
88. Id. at 698.
89. Charles N. Brower & Sadie Blanchard, supra note 87, at 699.
90. Christopher Schreuer, Why Still ICSID?, http://www.univie.ac.at/intlaw/wordpress/pdf/why_still_icsid.pdf [perma.cc/9CSJ-E99X] (last visited Feb. 6, 2016).
91. Id. at 2.
92. Christopher Schreuer, supra note 90, at 2.
93. Id.
94. Id.
95. Charles N. Brower & Sadie Blanchard, supra note 87, at 738.
96. See Id. at 736 (citing Santa Elena v. Republic of Costa Rica, ICSID Case No. ARB/96/1, Final Award, ¶¶ 76−81 (Feb. 17, 2000) and Unglaube v. Republic of Costa Rica, ICSID Case Nos. ARB/08/1, ARB/09/20, Award, ¶28, 135–37, 209–21 (2012) [hereinafter “Unglaube”])).
97. See Id. at 747 (citing Unglaube at ¶255, 286).
98. Metalclad Corp. v. United Mexican States, ICSID Case No. ARB(AF)/97/1, Final Award, ¶92, ¶104−106 (2000).
99. See Charles N. Brower & Sadie Blanchard, supra note 87, at 736 (Citing Metalclad ¶75−102)
100. Id.
101. Id.
102. Técnicas Medioambientales Tecmed SA v Mexico, Award, ARB(AF)/00/2, 10 ICSID Rep 130, ¶ 127–33 (2003).
103. See Charles N. Brower & Sadie Blanchard, supra note 87, at 736 (citing the final award in Técnicas Medioambientales Tecmed SA v Mexico).
104. Id.
105. Id. at 739.
106. Unglaube, supra note 96, at ¶166.
107. Id. at ¶246.
108. Id. at ¶247.
109. Id. at ¶166, ¶205.
110. See Charles N. Brower & Sadie Blanchard, supra note 86, at 741 (citing Chemtura Corporation v Canada, UNICTRAL Award, IIC 451, ¶135 (2010) [hereinafter “Chemtura”]).
111. Chemtura. supra note 110, at ¶135.
112. Charles N. Brower & Sadie Blanchard, supra note 87, at ¶747.
113. S.D. Myers v. Canada, UNCITRAL Partial Award, ¶194–95 (2000).
114. Id. at ¶162.
115. Perry, supra note 75.

You Might Also Like