Contractual Waivers of Investment Arbitration: Wa(I)ve of the Future?
29 ICSID Review-Foreign Investment Law Journal 2014, Forthcoming
Posted: 18 Apr 2014
In late 2013, the Republic of Colombia made legal headlines by including a contractual waiver of investment arbitration in a draft concession agreement. Although Colombia subsequently removed the provision from the draft agreement, the event raised numerous questions about whether and to what extent states can or should be allowed to use such waivers to avoid being named as a respondent in an investment arbitration.
At this point, there is extremely little authority available concerning the enforceability of a contractual waiver of investment arbitration. Nevertheless, it is possible to consider the propriety of these sorts of provisions from a variety of perspectives. This analysis addresses a number of salient issues, including those relating to conflict of laws, policy arguments and technical questions regarding the form of the waiver. The discussion also considers potential analogies to previous awards rendered by investment tribunals and how those decisions might affect two key analyses in the area of investment law: the question of jurisdiction versus admissibility and the dichotomy between treaty and contract claims.
Keywords: contract, contractual, waiver, Colombia, arbitration, concession, investment, treaty
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