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- Title
Contractual waiver of Article 52 ICSID: a solution to the concerns with annulment?
- Authors
Blome, Matthew
- Abstract
The ability for parties to contractually waive the right to bring annulment proceedings under the ICSID Convention remains as yet untested, creating uncertainty as to whether parties have this tool at their disposal. Given recent focus on the expansive costs and length of investment arbitration as well as examples of expansive annulment decisions, this article looks at whether parties may agree to contractually waive the right to bring annulment proceedings. Alternately it looks at whether certain grounds of annulment may be waived. The conclusion to this inquiry is that total or expansive waiver would most likely be held to be ineffective. However, the article also concludes that there remains a limited possibility that parties could agree to waive or place interpretative limitation on certain grounds, including arguably the most problematic ground, Article 52(1)(b) ICSID. A potential argument may be that parties may not be able to waive the annulment ground entirely but could control, to a certain extent, how 'the tribunal manifestly exceeds its power' is to be interpreted. Despite the potential for this limited exception, the primary finding is that whilst party autonomy should be respected as far as possible, the availability of the remedy of annulment is a mandatory rule that must prevail. The right to bring annulment proceedings should be considered beyond the control of the parties, with the consequences of waiver being systemic not merely inter partes, given the role of annulment in promoting the legitimacy of ICSID arbitration under its multilateral treaty regime.
- Subjects
WAIVER of class action rights; INTERNATIONAL Centre for Settlement of Investment Disputes; MARRIAGE annulment; ILLEGITIMACY; MANDATORY rules (Legal procedure)
- Publication
Arbitration International, 2016, Vol 32, Issue 4, p601
- ISSN
0957-0411
- Publication type
Article
- DOI
10.1093/arbint/aiv047