The aim of this article is to identify the main principles governing the interpretation of domestic law clauses that grant jurisdiction to ICSID arbitration and to analyse the meaning of such provisions in the context of the SPP v. Egypt case as the first case on the issue. The article first examines the peculiarities of consent to ICSID jurisdiction by way of national legislation. In the first part the analysis of the practice of arbitral tribunals in which a claim was introduced on the basis of consent to arbitration in domestic law shows that specific language of national legislation on consent to arbitration varies considerably. Therefore, since consent is the “cornerstone” of the Centre’s jurisdiction, arbitral tribunals recognize that not all references to ICSID arbitration in national legislation amount to consent. They approach the task of ascertaining the existence of such consent with great care. In the second part, the article focuses on the SPP v. Egypt case on the issue and analyses challenges that the tribunal met in interpreting relevant national clauses and establishing the consent to arbitration. Finally, this article discusses the legacy of interpretation standard of SPP v. Egypt case in context of the dissenting opinion and further case law. It is argued that the rules of interpretation of domestic law clauses that grant jurisdiction to ICSID arbitration are conditioned by the sui generis nature of consent to arbitration as unilateral declarations capable of giving rise to international legal obligations. Therefore, for the purpose of establishing whether there is consent to arbitration provided in national legislation, international tribunals reasonably take a balanced approach and use the methodological mix of rules of interpretation involving various sources: the VCLT, customary law principles governing unilateral declarations and domestic legislation. Additionally, this article provides suggestions on the possible role of the Guiding Principles applicable to unilateral declarations of states capable of creating legal obligations (Guiding principles) in interpreting domestic provisions containing an offer to arbitrate before ICSID.
1. Andreeva, Yulia. “Consent to Arbitration as a Unilateral Act of State: In Search for a Non-Conventional Approach Towards Treaty Interpretation”: 59-83. In: Todd Weiler, ed. Investment Treaty Arbitration and International Law. Vol. 3. JurisNet LLC, 2010.
2. Caron, David. “The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law”: 649-674. In: Mahnoush Arsanjani and Jacob Cogan, eds. Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. Robert Sloane & Siegfried Weissner, 2011.
3. Potesta, Michele. “The Interpretation of Consent to ICSID Arbitration Contained in Domestic Investment Laws.” Arbitration International 27 (2011): 149-169.
4. Steingruber, Andrea Marco Consent in International Arbitration. Oxford: OUP, 2012.
5. Weiler, Todd, ed. Investment Treaty Arbitration and International Law. 2nd ed. Vol. 2. JurisNet LLC, 2009.
1. Biwater Gauff v. Tanzania. ICSID Case No. ARB/05/22, Award (July 24, 2008).
2. Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali). ICJ Rep 574 (Merits) .
3. CEMEX Caracas Investments BV and CEMEX Caracas II Investments BV v. Republic of Venezuela. ICSID Case No. ARB/08/15, Decision on Jurisdiction (December 30, 2010).
4. Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization. Advisory Opinion. ICJ Rep150  (June 8, 1960).
5. Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID convention). Opened for signature March 18, 1965, entered into force October 14, 1966 // http://www.jus.uio.no/lm/icsid.settlement.of.disputes.between.states.and.nationals.of.other.states.convention.washington.1965/ (accessed June 30, 2014).
6. Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations. UN International Law Commission, Report of the 58th Session, UN Doc. A/61/10 (2006).
7. Inceysa Vallisoletana, SL v. Republic of El Salvador. ICSID Case No. ARB/03/26, Award (August 2, 2006).
8. Mobil Corp. and others v. Bolivarian Republic of Venezuela. ICSID Case No. ARB/07/27, Decision on Jurisdiction (June 10, 2010).
9. Nuclear Tests cases (Australia v. France; New Zealand v. France). ICJ Rep 1974 267-8 (Merits) .
10. Rumeli Telekom AS and Telsim Mobil Telekomunikasyon Hizmetleri AS v. Republic of Kazakhstan. ICSID Case No. ARB/05/16, Award (July 29, 2008).
11. SOABI v. Senegal. ICSID Case No. Allli/82/1, Award (February 25, 1988).
12. Southern Pacific Properties (Middle East) Ltd (SPP) v. Arab Republic of Egypt. ICSID Case No. ARB/84/3, Decision on Jurisdiction (April 27, 1985) and Decision on Jurisdiction (April 14, 1988).
13. Tradex Hellas (Greece) v. Republic of Albania. ICSID Case No. ARB/94/2, Decision on Jurisdiction (December 24, 1996).
14. Vienna Convention on the Law of Treaties (VCLT). 1155 UNTS 331, Vienna (May 23, 1969) // https://treaties.un.org/pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=X XIII~1&chapter=23&Temp=mtdsg3&lang=en (accessed 30 June, 2014).
15. Zhinvali Development Ltd v. Republic of Georgia. ICSID Case No. ARB/00/1, Award (January 24, 2003).
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