El “niño soldado” en Colombia: categoría referente, pero no suficiente

As public service sectors in host States are more often than not involved in investment disputes, critical public interests are basically relevant and possibly applicable to investor-State arbitration cases. In general, public interests can be moderate factors that tribunals take into account in adjudicating investment cases if they are legitimate and especially related to human rights,⁸² the environment⁸³ and cultural heritage.⁸⁴

regulation. However, given that most non-ICSID arbitral awards are unpublished prior to the implementation of the UNCITRAL’s transparency rules, much of the attack of legitimacy of investor-State arbitration is thus perceivably targeted at ICSID arbitration.

Though public interests seem to be peripheral in a particular case, the interplay between investors’ rights and public interests in investor-State arbitration can have a profound impact. In fact, public interests have aroused concern about a balanced approach between the pursuit of purely economic growth objectives and the need for the protection of people and the

80 Christoph Schreuer, ‘The Future of Investment Arbitration’ in Mahnoush H. Arsanjani, et al (eds), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Martinus Nijhoff Publishers, 2010) 803.

81 Charles N. Brower and Stephan W. Schil, ‘Is Arbitration a Threat or a Boom to the Legitimacy of International Investment Law’ (2008-2009) 9 Chi J Intl L 471, 498.

82 For example, Compañia de Aguas del Aconquija, SA (AdA) & Compagnie Générale des Eaux v. Argentina, ICSID Case No ARB/97/3, Award, 21 November 2000.

83 For example, William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL, PCA Case No 2009-04, Notice of Arbitration, 26 May 2008.

84 For example, Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt, ICSID Case No ARB/84/3, Award of the Tribunal, 20 May 1992, para 190.

28 environment.⁸⁵ In terms of the divergence of ICSID and non-ICSID arbitration, sustainable development⁸⁶ concerns are remarkable.

In practice, sustainable development issues have been brought before investor-State arbitral tribunals⁸⁷ and make two primary enquires into the potential protection in ICSID and non-ICSID arbitration. The first enquiry relates to the procedural protection. On the one hand, it is important that arbitral procedures be transparent and allow for public participation in the light of the momentous impact sustainable development can have on the public in investor-State arbitration. Normally, non-governmental organizations represent a broad spectrum of public interests and thus they have cardinal functions to shape the formulation of investment treaties and the development of investment dispute resolution.⁸⁸ On the other hand, third-parties participation involves certain risks, given that the need of disputing parties and the protection of sensitive information serve as the rationale for the in camera proceedings. Such ambivalence leads to different approaches to amicus curiae in ICSID and non-ICSID arbitration. The ICSID Arbitration Rules were amended in 2006 to grant tribunals more authority to determine whether third-parties can make written submissions as amicus curiae.⁸⁹

85 UNCTAD, ‘Investment Policy Framework for Sustainable Development’, UNCTAD/WEB/DIAE/PCB/2012/6, 12 June 2012, 8.

The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration go further than the ICSID Rules since they not only provide that UNCITRAL tribunals have the discretion to allow third-party

86 The United Nations (hereinafter ‘UN’) Millennium Declaration emphasizes the three pillars of sustainable development: (i) economic development, (ii) social development and (iii) environmental protection. See UN General Assembly Resolution A/RES/55/2.

87 Chester Brown, ‘Bringing Sustainable Development Issues before Investment Treaty Tribunals’ in Marie-Claire Cordonier Segger, et al (eds), Sustainable Development in World Investment Law (Kluwer Law International, 2011) 175-88.

88 The first amicus curiae submission under the amended ICSID Arbitration Rules was granted in Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania to five non-government organizations (see ICSID Case No ARB/05/22, Procedural Order No 6, 25 April 2007). Four human rights groups were granted permission in providing useful information and accompanying submissions to the tribunal in Piero Foresti, Laura de Carli and others v. Republic of South Africa (ICSID Case No ARB (AF)/07/1, Procedural Order, 5 September 2009). This was the first time an ICSID tribunal under the Additional Facility Rules required that key legal filings be disclosed to a set of third-parties. However, not all third-party’ applications to

participation as amicus curiae will be granted. The Spain-U.S. Chamber of Commerce has recently been denied permission to file a written submission in an annulment procedure in Iberdrola Energía, S.A. v.

Republic of Guatemala (ICSID Case No ARB/09/5, Decision of the Ad Hoc Committee on Non-Disputing Party’s Application to File a Written Submission, 12 February 2014).

89 R 37(2) of the ICSID Arbitration Rules.

29 submissions⁹⁰ and that hearings shall be public,⁹¹ but also dispense tribunals’ duty to request disputing parties’ consent for third-parties’ participation. Conversely, it appears that potentially interested third-parties are less likely to be aware of pending SCC and ICC arbitral proceedings due to the traditional opacity of procedures, and will therefore probably be unable to make submissions.

The second enquiry concentrates on the substantive protection. It is worth noting that investor-State arbitration is not intrinsically biased towards sustainable development or investment protection, and arbitral tribunals shall be essentially neutral and impartial.

However, the rules on treaty interpretation under the Vienna Convention on the Law of Treaties (1969) provide arbitral tribunals with potential to reconcile investment protection and sustainable development concerns. ⁹² Without prejudice to their independence, neutrality and impartiality, ICSID arbitral tribunals need to be intensely considerate of one of the indispensable components of sustainable development - economic development.⁹³

90 Arts 4 & 5 of the UNCITRAL Transparency Rules.

Since the preamble of the ICSID Convention provides that ‘considering the need for international cooperation for economic development and the role of private international investment therein’, the Centre was established to provide facilities for arbitration of investment disputes. Accordingly, one of the foremost purposes of the ICSID Convention is the promotion of private international investment and economic development. ICSID arbitration thus inherently possesses a distinguishing feature to foster economic development through providing legal certainty and further creating a favourable investment

91 Ibid, art 6.

92 First, art 31(1) & (3)(c) of the Vienna Convention stipulates that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty ‘in their context and in the light of its object and purpose’, and there shall be taken into account any relevant rules of international law applicable in the relations between parties. Second, though investment treaties primarily aim at investment protection, the object and purpose of most investment treaties are not one-dimensional in view of the fact that the preamble, substantive provisions or annexes of investment treaties frequently refer to ‘economic

development’ or other term which may be understood as long-term or sustainable development. Therefore, the Vienna Convention has the potential to strike a balance between investment protection and sustainable development, and such potential may be used by arbitral tribunals. See Katharina Berner, ‘Reconciling Investment Protection and Sustainable Development - A Pledge for an Interpretive U-Turn’, IIAs Conference, Berlin, October 2013, 8-14.

93 In a broader and flexible context, the concept of ‘economic development’, if it were to serve as a yardstick for identification of an eligible investment under the ICSID Convention, should not be restricted to

measurable contributions to GDP but should include development of human potential, political and social development and local and global environment protection (see Christoph H. Schreuer, et al, The ICSID Convention: A Commentary, 134). In this sense, the concept of ‘economic development’ is quite similar to

‘sustainable development’ under the United Nations Millennium Declaration.

30 climate to stimulate larger investment inflows.⁹⁴ Aside from the micro impact, the economic development consideration is also applied to ICSID tribunals’ adjudication, and one notable instance is that pursuant to the so-called ‘Salini test’, a significant contribution to the economic development of host States is one of five criteria indicative of the existence of a qualified investment under the ICSID Convention.⁹⁵ On the contrary, the concern of economic development is commonly absent in non-ICSID arbitration rules or regulations, and thus arbitrators are not necessarily guardians of the economic development of host States. Instead, it seems that non-ICSID arbitral tribunals are simply charged with a commission to resolve particular disputes inter partes without contemplating the wider implication on the economic and even sustainable development.

Balanced approaches to scrutinizing the relationship between sustainable development and investment protection are still insufficiently developed, and it remains arduous to assess whether bringing sustainable development issues before investor-State arbitral tribunals would advance or impair the international investment regime, in particular considering that the antipode of amicus curiae is additional time and cost which may be not what disputing parties expect. Be that as it may, the diverse extent to which third-parties can raise sustainable development concerns in ICSID and non-ICSID arbitration, and the possibility of ICSID tribunals taking into account sustainable development issues when adjudicating investment disputes would, of course, have significant implications for the sovereign choice between ICSID and non-ICSID arbitration during investment treaty negotiations.

94 As the ICSID tribunal in Amco Asia Corporation and others v. Republic of Indonesia stated, to protect investment was to protect the general interest of development and of developing countries. See ICSID Case No ARB/81/1, Award, 20 November 1984, para 249.

95 Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, ICSID Case No ARB/00/4, Decision on Jurisdiction, 31 July 2001, para 52.

The jurisdictional requirements of international arbitration are ordinarily identified as ratione personae, ratione materiae and ratione temporis. The ICSID Convention has a specific requirement of ratione personae, merely accepting disputes between a contracting State (or any constituent subdivision or agency of a contracting State designated to the Centre by that State) and a national of another contracting State.⁹⁶ Such specific requirement, however, is insignificant in evaluating ICSID and non-ICSID arbitration because all States in question are contracting States to the Convention and the fact that an investor is indeed a national of another contracting State may be uncontested between disputing parties.⁹⁷ The requirement of ratione temporis is applied equally to both ICSID and non-ICSID arbitration. Accordingly, only the requirement of ratione materiae will be examined in this chapter. Jurisdictional requirements can be satisfied in traditional non-ICSID arbitration, provided that disputing parties with capacity and powers reach a valid arbitration agreement in which the disputes fall within certain categories and, more importantly, the disputes are per se arbitrable in nature. Such criteria should, however, be additionally subject to certain requirements contained in the ICSID Convention and potentially applicable investment treaties when examining whether an investment is eligible for ICSID arbitration. In addition to the external jurisdictional limits, the incompatibility of ICSID arbitration with other dispute resolution methods and ICSID’s exclusion of remedies from national courts seem to be less efficient at first sight as compared to the compatibility of non-ICSID arbitration with conciliation and national authorities’ support. This notwithstanding, the recent decades have seen an expansion of ICSID jurisdiction by virtue of a diversity of techniques where the subject matter is deployed as a means to expand the ambit of ICSID jurisdiction to such an extent that the interpretation of the terminology of investment is virtually sufficient for ICSID tribunals to exercise their jurisdiction over a wide range of assets and activities. Further, the self-contained system also provides a number of approaches that are conducive to the efficiency and effectiveness of arbitral proceedings at the jurisdictional stage.

96 Art 25(1), (2) and (3) of the ICSID Convention.

97 Christoph H. Schreuer, et al, The ICSID Convention: A Commentary, 163). The ICSID Convention does not set objective requirements of ratione personae. In case that incorporation has several possible corporate nationalities, ICSID tribunals have uniformly adopted the test of incorporation or seat rather than control (see ibid, 282).

32 1 Subject Matter Covered by Parties’ Consent