ICSID arbitration and the state’s increasingly remote consent: Apropos the Maffezini case

Abstract

Introduction Everyone knows that besides having been a member of the Appellate Body of the World Trade Organization's Dispute Settlement Mechanism, Florentino Feliciano also has extensive experience as an arbitrator in international investment and commercial disputes at the International Centre for Settlement of Investment Disputes (ICSID or ‘the Centre’) in Washington, at the International Chamber of Commerce (ICC) in Paris, and that he is on the Arbitrators Panel of the American Arbitration Association (AAA) in New York; hence the idea to reflect on the recent evolution of ICSID, in this homage to a person who has been so deeply involved in the evolution of international economic law. This contribution intends to give some general views of the overall dramatic changes in the role played, in this time of globalization, by the mechanism provided for by ICSID. This arbitral institution is designed specifically for arbitration between states – subjects of public international law, and investors – subjects of national laws. The Washington Convention on Settlement of Investment Disputes between States and Nationals of Other States, which entered into force on 14 October 1966 and created ICSID, can be considered as a success story. Today, new directions appear that will be presented in this contribution. General background on consent to international arbitration ICSID was created at a time when new states, just appearing on the international scene after decolonization, as well as Latin American states en bloc, were quite reluctant to submit their contractual disputes with a foreign investor to arbitration.