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The Rise of Investor-State ArbitrationPolitics, Law, and Unintended Consequences$
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Taylor St John

Print publication date: 2018

Print ISBN-13: 9780198789918

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780198789918.001.0001

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Intergovernmental Discussion and Ratification of ICSID

Intergovernmental Discussion and Ratification of ICSID

(p.146) 5 Intergovernmental Discussion and Ratification of ICSID
The Rise of Investor-State Arbitration

Taylor St John

Oxford University Press

Chapter five analyzes initial state responses to the idea of ICSID. The Bank invited states to send legal experts, even if these individuals were not government officials. Despite their shared methods and language, these experts-designate expressed a variety of views about investor–state arbitration during the consultative conferences. Some experts from capital-importing states were convinced by the Bank’s argument that joining ICSID would improve their investment climate, but many questioned this argument. While the Bank argued that ICSID merely institutionalized existing practice, many experts-designate found the Convention’s potential legal implications unsettling. Several experts-designate expressed concern about the consequences of elevating investors to equal standing with states. Others, especially in the Asian consultative conference, were concerned about public policy implications, and in particular that the Convention might constrain domestic policymaking. Many experts-designate sought tighter limits on the Convention’s jurisdiction, and the Bank relied on the Convention’s double-consent requirement to assuage these concerns.

Keywords:   ICSID Convention, Aron Broches, Ratification of the ICSID Convention, BITs and increased investment, public policy concerns, No de Tokio, ICSID’s jurisdiction, espousal

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