Certain Issues Concerning International Investment Arbitration within The Context of The Ata v Jordan Award

Abstract

The award in ATA v Jordan is important as it raised various issues in investment arbitration. The award is the first where an arbitral tribunal decided that an arbitration agreement and accordingly a claimant's right to arbitration were a separate investment under a Bilateral Investment Treaty (BIT) and ordered the respondent state's judicial authorities to perform certain acts. Moreover, the award is also noteworthy for being the first investment arbitral award to order the termination of judicial proceedings performed in accordance with internal law of the respondent state. The question of whether an award issued by a commercial arbitration tribunal could be deemed an investment is one of the main issues in the award of the tribunal in ATA v Jordan. Additionally, ATA v Jordan is a rich academic source for researchers as it refers to several theoretically controversial subjects of investment arbitration. This study particularly focuses on the tribunal's assessment of what constitutes an investment (i.e., assessments on jurisdiction ratione materiae) and how it determined whether the tribunal has jurisdiction ratione temporis. In this regard, this study considers the tribunal's assessment of temporal jurisdiction, the concept of a breach that extends in time, and a breach consisting a composite act. Further, the award reveals that prominent issues such as characterization of the conflict and determination of the time when the conflict arises might be subject to complex procedures. The study also examines in detail the inherent difficulties with regard to the enforcement of restitution-a concept and a form of reparation that belong to general international law-within the context of investment arbitration. Article 54 of the International Centre for Settlement of Investment Disputes (ICSID) Convention stipulates that Contracting States are obliged to recognize an award rendered by an ICSID tribunal; however, it only imposes an obligation of enforcement of the pecuniary obligations as if it were a final judgment of a court in the state concerned. While a hesitation of any infringement to the sovereignty of the states is at the forefront here, available means provided by general international law for the enforcement of the awards are also quite limited; moreover, the power of discretion belongs to the states, not to investors. In the last section of this study, the available means of general international law are mentioned.