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International Investment Law for the 21st CenturyEssays in Honour of Christoph Schreuer$
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Christina Binder, Ursula Kriebaum, August Reinisch, and Stephan Wittich

Print publication date: 2009

Print ISBN-13: 9780199571345

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780199571345.001.0001

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ON THE DENUNCIATION OF THE ICSID CONVENTION, CONSENT TO ICSID JURISDICTION, AND THE LIMITS OF THE CONTRACT ANALOGY

ON THE DENUNCIATION OF THE ICSID CONVENTION, CONSENT TO ICSID JURISDICTION, AND THE LIMITS OF THE CONTRACT ANALOGY

Chapter:
(p.251) 15 ON THE DENUNCIATION OF THE ICSID CONVENTION, CONSENT TO ICSID JURISDICTION, AND THE LIMITS OF THE CONTRACT ANALOGY
Source:
International Investment Law for the 21st Century
Author(s):

Oscar M. Garibaldi

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199571345.003.0015

This chapter argues that Professor Schreuer's interpretation of Article 72 is incorrect. The contract analogy, which is unobjectionable as an aid to explaining the basic workings of the consent regime, ceases to be useful when it dictates conclusions that are inconsistent with the text of Article 72 and the context of the ICSID Convention. At that point, applying the contract analogy to Article 72 becomes an instance, in the context of legal discourse, of what J. S. Mill called the fallacy of false analogies. Recent studies have spent more time on the development of alternative theories than on pointing out the limits of the contract analogy. Studies must not only offer an alternative analysis based on those rules of treaty interpretation, but show why the opposing theories are inadequate. The chapter presents an analysis of this issue supplemented with brief observations on the limits of the contract analogy and on the inadequacy of other theories that, though by no means attributable to Professor Schreuer, may tempt those searching for an extra-textual justification for interpreting ‘consent’ in Article 72 as an ‘agreement to arbitrate’.

Keywords:   Article 72, investment arbitration, denunciations, consent, contract analogy

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