ABSTRACT
Consent is the cornerstone in arbitration. The manner and content of consent, are of immense importance in terms of the effects they ingenerate. Inadequacies in consent might lead to concerns in terms of admissibility, jurisdiction, scope and enforcement. In case of Investment arbitration, consent can either originate from a contract, or a domestic statute, or an Investment treaty. Content of consent could vary from case to case, in terms of nature, scope, form, or the conditions entailing it. Consent to arbitration can hence vary substantially in manner, and inconsequentially, in content- nature, procedures, conditions etc. The essay explains how consent can differ in terms of content and manner, in investment arbitration cases. The aim is to draw distinction between consent by different modes in terms of various facets of content- the nature of consent, procedure through which it is perfected, and the conditions associated with it. It also ventures briefly into the indeterminate questions as to contours of consent, and analyses varied interpretations based on legal contexts and academic perspectives. Since the implications of the mode of consent, or the content of consent, do not vary substantially with the type of arbitration sought- ICSID, Non- ICSID, or ICSID additional facility, the essay precludes drawing distinction as such.
Keywords: Arbitration, Investment Arbitration, Consent, Jurisdiction, Admissibility, ICSID, Enforcement.
Consent is the cornerstone in arbitration.[1] The manner and content of consent, are of immense importance in terms of the effects they ingenerate. Inadequacies in consent might lead to concerns in terms of admissibility, jurisdiction, scope and enforcement.[2] In case of Investment arbitration, consent can either originate from a contract, or a domestic statute, or an Investment treaty.[3]Content of consent could vary from case to case, in terms of nature, scope, form, or the conditions entailing it. In fact, determination of the meaning and contours of consent often depends on the interpretative techniques – narrow or broad, adopted by the forum.[4] However, if the question is about the general distinction between ‘consent by contract’ and ‘consent by law/treaty’, it lies in the fact that the road to obtain final consent tends to be a relatively a complex multi-step process in treaty or statute based cases, as compared to contract based investment arbitration.
The essay explains how consent can differ in terms of content and manner, in investment arbitration cases. The aim is to draw distinction between consent by different modes in terms of various facets of content- the nature of consent, procedure through which it is perfected, and the conditions associated with it. Since the implications of the mode of consent, or the content of consent, do not vary substantially with the type of arbitration sought- ICSID, Non- ICSID, or ICSID additional facility, the essay precludes drawing distinction as such.
[1]K Youssef, Consent in context: Fulfilling the promise of international arbitration, Multiparty, Multi-Contract, and Non-Contract Arbitration, (Thomson Reuters 2011); AM Steingruber, Consent in international arbitration, (OUP 2012).
[2]J Werner, ‘The Trade Explosion and Some Likely Effects on International Arbitration’, (1997) 14(2) Journal of International Arbitration 6.
[3]E Obadia, ‘ICSID, Investment Treaties and Arbitration: Current and Emerging Issues’, in Investment Treaties and Arbitration, (2002) 19 ASA Special Series 69.
[4]Tradex v Albania, Decision on Jurisdiction, 24 December 1996, 5 ICSID Reports 47.