جستجوی مقالات مرتبط با کلیدواژه « کنوانسیون واشنگتن » در نشریات گروه « فقه و حقوق »

Arbitration is common in foreign investment dispute resolution, but there is no consensus on using arbitration as regard as foreign investors, because there are foreign elements. Dispute resolution of international issues such as foreign investment is most of the often according to the rules of international documents and arbitration is one them. In Iran law there are some challenges on using arbitration for dispute resolution because of exclusions of 139 principle of Constitutional Act. But in International issues, arbitrationn is eminent. One of the most important documents is The Washington Convention acted 1965 that regards the arbitration as one of the methods of dispute resolution on foreign investment. As of finance for Progress and development it is possible to rethink about foreign investment and arbitration is one of the best ways of dispute resolution that has the least cost and the most rate and high efficiency. So, by an international approach to the issue, we try to remove the defects and make this method of dispute resolution on foreign investment eminent in Iran.

Arbitration is a mechanism to create a balance between the conflicting desires of individuals, and to achieve this goal, arbitrators should only pay attention to the common interests and desires of the parties so that the dispute is resolved based on that. On the other hand, the rules mentioned in the Washington Convention on Arbitration, which states the procedure for dealing with disputes regarding international investment by ICSID between a contracting state and an investment person who has the citizenship of another state, are used to deal with the proposed lawsuit. It is free of any substantive rules. However, a rule is included in Article (1) 42 of the mentioned agreement which states that substantive rules that are enforceable in a lawsuit are examined and identified by the court and based on that It deals with the content. In fact, the mentioned article is an example of the rules for resolving the conflict of laws, which can be found in various laws such as the national law, according to which the court resolves the conflict of laws.

It is passing nearly half a century from the ICSID activity and during this time, the concept of “investment” has changed to most controversial issue and the subject of many cases in this area. In one hand, the lack of definition in Washington convention and on the other hand, the dependence of ICSID tribunals for authenticating their competence on “double barreled” test which based on both relative treaties and Washington convention, caused that ICSID tribunals adopt various methodologies for identifying an “investment”. As a result, this can enhance the challenges in this area. This paper with the purpose of better understanding of these methodologies, seek to find a solution for the question of which perspective is more in accordance with the dynamic concept of “investment” and in fact, how they can unify the subjective legal concepts with objective Phenomena with regard to Washington convention.

The International Center for Settlement of Investment Disputes (ICSID) is a leading arbitration forum in the field of investor-state dispute settlements. Therefore, its arbitral practice in various fields of international investment law carries amplitude endowment. Despite the fact that the term “investment” appears at the heart of both the name of the Centre as well as in the title of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, no definition of this term is seen in the text of the treaty. Absence of such definition has led to huge interpretative differences in the ICSID practice. Applying different objective and subjective interpretative approaches regarding the concept of investment included in Article 25(1) of the ICSID Convention by arbitral tribunals and diverse views toward this concept through the prism of Convention and that of instruments containing consent to ICSID Jurisdiction, including bilateral and multilateral investment treaties have led to such inconsistency in the ICSID practice. After about 50 years since the conclusion of the Convention, there is neither a single definition of this concept nor a consensus on the criteria to identify it. The current condition of inconsistency may adversely affect the international investment arbitration system and the very existence of the Convention. Thus, providing a solution has always been a concern formost of the savants and practitioners in the field of international investment law. It’s very difficult to make structural reforms in the Convention in order to solve the problem, however establishing a “jurisprudence constante”could be an option. In practice, the absence of a substantive definition of the term “investment” in the Convention has resulted into expansion of jurisdiction in ICSID arbitration.