CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ ABOUT RECENT DEVELOPMENTS IN A FURTHER AIM TO REFORM… decision-maker”, 44 nor “emanation of the state”, 45 nor a “national court judge acting as such”. 46 This characteristic thus relates to the adjudicator’s status, whereas the previous requirement – consent – relates to the source of his/her authority and jurisdiction. If the ITI process is intended to be regarded as arbitration, which essentially is helpful for enforcement purposes, its design will need to show some “private” element. Such an element is most likely to be found in the constitution or composition of the ITI. The most controversial issue, namely whether the parties’ participation in the selection of the arbitrators is a defining feature of arbitration, while the parties’ autonomy to select the arbitrators, or to agree upon a means of selecting arbitrators, “is one of the foundations of the arbitral process”. Enforcement of ITI awards is crucial for the overall effectiveness of the system and largely depends on the characterization of the ITI as arbitration or court. If the ITI’s decisions cannot be deemed arbitral in nature because of the body’s predominant court-like features, the chances of enforcement would be significantly reduced. The reason for this is that, unlike for arbitral awards, there is no uniform international regime for the enforcement of judgments of international courts. In the event that the ITI is characterized as arbitration the enforcement may be sought in the Contracting States as well as in third countries. When requested to recognize an ITI award under the NYC, the court would ask at least the questions whether, if it is an “award” under the NYC, is there an “agreement in writing” under Articles II and V(1)(a) of the Convention and if the presence of a built-in appeal poses any problems under the NYC. The Convention does not define “arbitration”, “arbitral tribunal” or “arbitral award”. Article I is nevertheless instructive as it sets territorial conditions and speaks of awards of permanent arbitral bodies. The question whether the ITI scenario involves an “arbitration agreement” in writing for the purposes of Article II and V(1)(a) of the Convention should be admitted without difficulty. It is well-accepted that the consensual method based on arbitration without privity meets the writing requirement under the NYC. This is not only confirmed in a number of IIAs, but was also validated by several domestic courts applying the NYC in enforcement proceedings of non-ICSID investment awards. Notwithstanding, the ITI Statute could expressly state that (i) consent achieved through the combination of the state’s offer with the investor’s submission of a claim to the dispute settlement mechanism “shall satisfy the requirements of Article II of the NYC for an ‘agreement in writing’”; and that (ii) a claim that is submitted to the 44 GARY B. BORN (2013), International Arbitration and Forum Selection Agreements: Drafting and Enforcing, 4th edition, Kluwer Law International, pp. 1-15, 2. 45 JARROSSON (1987), pp. 103 f. 46 JEAN-LOUIS DEVOLVE, JEAN ROUCHE & GERALD POINTON (2009), French Arbitration Law and Practice: A Dynamic Civil Law Approach to International Arbitration, 2 nd ed., Kluwer Law International, para. 26 cited in Born (2014), p. 248.

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