ABSTRACT
As a natural result of the developing technology and globalizing relations, the caliber of trade and investments have gone beyond regional borders and extended all over the world. Globalization of trade and investments have brought along some conflicts arising between foreign investors and states. Over time, many methods have emerged for the resolution of these disputes, and states have leaned towards making conventions for the settlement of investment-related disputes through agreements on mutual promotion and protection of investments. Today, we can see examples of large-scale projects such as highways, bridges, airports, and power plants executed by foreign investors, through agreements they conclude with states, have increased, and in this direction, the importance of the resolution of disputes between foreign investors and states has also increased in global markets.
In this article, bilateral and multilateral international investment agreements, which we consider to be of critical importance to investors aiming to invest in foreign countries, will be examined broadly and dispute resolution methods that investors can resort to within the scope of their international investments will be touched on briefly.
I. INTRODUCTION
With the reflection of globalization, which accelerated its pace since the 18th century, on commercial activities, investors began to move beyond national borders and to invest their capital in different states, and as a natural result of this situation, a significant increase in the number of international investments came to the fore. As a matter of fact, when data from the United Nations Conference on Trade and Development (UNCTAD) is analyzed, it can be seen that the amount of foreign direct investment capital flow, which was approximately 13 billion USD in 1970, increased to approximately 1.5 trillion USD in 20191. The lack of a universal legal framework for international investments and the fact that states subject foreign investments in their own countries to internal regulations based on their sovereign powers have left investors facing various economic, legal and political risks. In order to provide some assurance to investors regarding their international investments, which are of high economic importance to both states and investors, states have headed towards signing agreements for reciprocal promotion and protection of investments (bilateral investment treaties) and becoming parties to multilateral investment agreements. In this article, bilateral and multilateral international investment agreements, which we consider to be of critical importance to investors aiming to invest in foreign countries, will be examined broadly and dispute resolution methods that investors can resort to within the scope of their international investments will be touched on briefly.
II . INTERNATIONAL INVESTMENT TREATIES
It is required for an investor to acknowledge the social and economic conditions of a foreign country to invest in, as well as legal conditions and foresee the risks. Despite a foreign investor foreseeing all risks, the necessity of protecting the rights of the investor has emerged. Therefore, states sign multilateral or bilateral Reciprocal Promotion and Protection of Investments Treaties (“International Investment Treaties”). In this section of this article, the content and the principles dominating the International Treaties will be evaluated.
International Investment Treaties regulate the rules to be applied between one or more states when an investor of a contracting state invests in another contracting state’s territory. In the aforementioned treaties, the state invested inis described as the host state, the state which the foreign investor is connected to is stated as the home state and the contracting states enter into the obligation to deal with each other’s investors in a particular way2.
A. Investment – Investor Terms
International Investment Treaties firstly describe the terms of investment and investor, and point out the activities which will be accepted as an investment in the contracting state’s territory and who could be the real or juridical person to perform those activities. The term of investment consists of the activities subject to the International Investment Treaties, which will be provided protection and in practice, it is seen that states tend to regulate the scope of term of investment broadly. The limits of the term investor is of special importance as the investor protected by International Investment Treaties is not of the nationality of the state he or she invests in, in other words, is foreign. The broader the definition of investment under International Investment Treaties, the more protected the foreign investor will be.
As it is mentioned above, since it is the main purpose of International Investment Treaties to protect the foreign investor, the scope of the term of investment is defined broadly, consisting of all kinds of assets; including cash capital, machine equipment, direction, license agreements, stock, bond investments, business partnerships and knowhow3 . Since the definition of investment made under International Investment Treaties constitute the basis of who will be considered as a foreign investor at the territory of the contracting states, the limits of the term is of great importance. In fact, in case a real or judicial person is not accepted as a foreign investor as per an International Investment Treaty, such real or judicial person will not be able to base his claim to the relevant International Investment Treaty and will not be able to address his claim to arbitration or any other dispute resolution method specified under the relevant International Investment Treaty.
While explaining the terms of investor, it is relatively easy to determine whether a real person could be considered as a foreign investor in the territory of a state compared to a judicial person. Under international law, a real person who is not a citizen of a state is considered a foreign investor when he invests in that state’s territory. Of course, the state in question may limit the scope of foreign real person investors by setting exceptions in this regard. In terms of the judicial person, states can set different standards. While some states seek the condition that the state in which the judicial person is established must be another state, some states seek the condition that the base of the judicial person must be in the territory of another state, regardless of the state in which the judicial person is established.
Real and judicial persons who are accepted as foreign investors in the territory of a state in accordance with the conditions described above shall be able to benefit from the incentives and protections provided under the International Investment Treaties and, if necessary, address a dispute to the dispute resolution method regulated in the relevant treaty
B. Principles Dominating the International Investment Treaties
Since the purpose of the International Investment Treaties is the protection of foreign investors and the investment itself, many international principles for protection are regulated as provisions in International Investment Treaties. These principles and their reflections in the International Investment Treaties will be evaluated below.
1. National Treatment
The principle of national treatment generally means that a state that is a party to the International Investment Treaty provides at least the same protection to foreign investors as it applies to its own nationals. In accordance with this principle, it is accepted that the foreign investor will be treated equally to the domestic investor4.
This principle manifests itself in all of the International Investment Treaties, and as an exemplary provision, Article 2.2 of the Treaty on the Mutual Promotion and Protection of Investments signed between the Republic of Turkey and Turkmenistan5 is as follows: “Each Party shall accord to these investments, once established, treatment no less favourable than that accorded in similar situations to investments of its investors or to investments of investors of any third country, whichever is the most favourable.”
The term of “its investors” in the article points to the reflection of the principle of national treatment as a provision in the International Investment Treaty.
2. Fair and Equitable Treatment
The principle of fair and equitable treatment has been considered by some to be one of the elements of the minimum standard required by international law to be applied to foreign investors and their property6. The scope of the principle in question has been interpreted differently by state officials, arbitrators and lawyers7. In our opinion, the fair and equitable treatment to be applied to foreign investors in the field of international protection of investments should be interpreted in accordance with the standards drawn by international law, not separately for each state, and the foreign investor should be treated in this way.
The principle of fair and equitable treatment also manifests itself in the International Investment Treaties, and it is expressed in the introductory part of the Agreement on the Mutual Promotion and Protection of Investments between the Republic of Turkey and the Syrian Arab Republic8, “In order to maintain a stable investment environment and ensure the most effective use of economic resources, agreeing that investments should be treated fairly and equitably…” and in 2.2 of the same agreement as, “Investments of investors of each Party shall at all times be subject to fair and equal treatment and enjoy full protection in the territory of the other Party.”.
3. Full Protection and Security
The full protection and security standard is a principle on the protection of states from physical and legal interference with foreign investors. Concerning the field of international investment, providing protection and security to the foreign investor in the host country is of course very important for the existence of international investments. The foreign investor needs a guarantee that there will be no unexpected physical or legal interventions in the activities it performs. The concept of full protection and security is intertwined with the principle of fair and equitable treatment, which is generally thought to have a wider scope9. As a matter of fact, in Article 2.2 of the aforementioned Agreement on the Mutual Promotion and Protection of Investments Between the Republic of Turkey and the Syrian Arab Republic, it is seen that the concepts of "fair and equal treatment" and "full protection" are used in the same sentence. The provision “No Party shall in any way impede the management, maintenance, use, disposal, expansion or disposal of such investments by unreasonable or discriminatory measures” in the continuation of the Article defines the scope of the principle of full protection and security.
It could be said that the concepts that form the basis of the principle of full protection and security, which are regulated similarly in most of the International Investment Treaties, are the obligation not to take unreasonable and discriminatory measures. With the existence of this principle, the parties must not undertake unreasonable and discriminatory measures to each other's investors and to act fair and equal.
4. Expropriation
Since the purpose of investment from foreign countries is to both add value to the host state and earn money as a result of commercial activity, the exposure of the said investment to actions such as expropriation or nationalization poses a great risk for the foreign investor. It cannot be expected of a foreign investor to operate in a healthy manner in an environment where his or her investment is under the threat of expropriation at any moment. For this reason, there are some regulations in the International Investment Treaties that will protect the foreign investor from the actions of the host state, such as expropriation.
For an example of the regulations in question, article 6 titled "Expropriation" of the Treaty on the Mutual Promotion and Protection of Investments Between the Republic of Turkey and the Russian Federation is as follows:
1. Investments made by an investor of one Contracting Party in the territory of the other Contracting Party; shall not be expropriated, nationalized or expropriated or nationalized, except in cases where it is done in the public interest, in accordance with the legislation and the general principles of treatment set forth in Articles II and III of this Agreement, in a non-discriminatory manner, provided that it is accompanied by the payment of timely, adequate and effective compensation. will not be subjected to practices that create similar effects (such practices will be referred to as expropriation hereinafter).
2. The compensation will be equal to the actual value of the expropriated investment at the time the expropriation decision is taken or the imminent expropriation is learned. Compensation shall be paid without delay and shall be fully realizable and freely transferable. In case of delay, the compensation will include interest until the payment date.”
When the provision is examined, it is stated that expropriation by the host state within the scope of the protection of foreign investors can only be made in a non-discriminatory manner, together with the payment of timely, adequate and effective compensation. In addition, the principles of compensation to be paid to the foreign investor in case of expropriation have been specified, and it is clear that the purpose of these principles is to protect the foreign investor against the powerful host state.
5. Most Favored Nation Clause
As with the other principles that dominate the International Investment Treaties, the main aim to be achieved with the Most Favored Nation Clause is to ensure that there is no discrimination between domestic and foreign investors. So much so that the states that are party to the International Investment Treaties, which include the Most Favored Nation Clause, are obliged to provide unconditionally to the investors of other states a favorable regime that any other state recognizes for its investors.
To explain the subject with an example, when the Treaty Between the United States Of America And the Republic Of Turkey Concerning The Reciprocal Encouragement And Protection Of Investments10 is examined, Article 2.1 of this agreement is as follows: “Each Party shall permit in its territory investments, and activities associated therewith, on a basis no less favorable than that accorded in like situations to investments of nationals or companies of any third country, and within the framework of its laws and regulations, no less favorable than that accorded in like situations to investments of its own nationals and companies.”. The Republic of Turkey and the United States of America are under the obligation not to provide less favorable conditions to each other's investors than those provided to investors of other states, with the expression “no less favorable than that accorded in like situations to investments of nationals or companies of any third country” in the aforementioned Article.
With the existence of the provision in question, an investor of one of the contracting states may have a dispute with the host state based on the provisions of the host state's agreements with other states, which are more favorable for its own situation11. Thus, it is aimed that a state party approach all foreign investors in its territory equally and without discrimination. However, it should be noted that the Most Favored Nation Clause could be regulated as applicable to all matters specified in a contracting state's agreement, and contracting states may choose to limit the scope of such a clause as well. As a matter of fact, in the bilateral investment treaty between Argentina and Spain, it was stated that the aforementioned clause would be applied to "all matters regulated in the agreement", while the bilateral investment treaty between Russia and England limited the scope of the clause to "management, maintenance, use, exploitation or disposal of investments"12.
Another issue related to the Most Favored Nation Clause is the debate whether the standard in question could be applied to the procedural provisions of the International Investment Treaties. Although there are arbitral decisions with different results on this issue, the decision of the arbitral proceedings known as ‘Maffezini v. Spain’ before the International Center for Settlement of Investment Disputes (“ICSID”) has been an important turning point for international investment disputes all over the world. In the aforementioned case, Argentine national Maffezini applied to for arbitration before ICSID regarding his investment in Spain and argued that the dispute resolution provision in the bilateral investment treaty between Spain and Chile should be applied, based on the Most Favored Nation Clause under the bilateral investment treaty between Argentina and Spain. As a result of its examinations, the arbitral tribunal stated that the provisions on dispute resolution are not only procedural provisions, on the ground that the provisions on disputeresolution in the International Investment Treaties are also related to the protection of foreign investments and that dispute resolution is also a part of the treatment applied to the investor and concluded that the provision of investment should be evaluated within the scope of securing the rights of the investor13.
Although there are cases unlike Maffezini v. Spain, where it is concluded that the dispute resolution provisions under International Investment Treaties shall not be applied to the investors of other states within the scope of the Most Favored Nation Clause14, we are of the opinion that the Most Favored Nation Clause serves to the purpose of protection of foreign investors and should be applied in the field of dispute resolution in order to protect the investor who is in the position of the weak party.
6. Settlement of Disputes
When the provisions on dispute resolutions in the International Investment Treaties are examined, it is seen that the said provisions are related to the disputes between the contracting states and the disputes between a contracting state and the investor of the other contracting state. Disputes between the contracting states arise regarding the interpretation of the provisions of the treaty on the promotion and protection of the investments in question. In this part of our article, the methods of resolving the disputes between one contracting state and the investor of the other contracting state will be examined.
When the provisions of the International Investment Treaties regarding the settle - ment of disputes that may arise between the contracting state and the investor of the other contracting state are examined, the relevant articles stipulate a notification procedure (notice), after the notification is made, a period is arranged in which the parties will try to resolve the dispute by amicable methods (cool-off period) and the legal remedy(s) that can be applied by the foreign investor in case the said dis - pute cannot be resolved within the spec - ified time. Under the International Invest - ment Treaties, the party that can operate the dispute resolution procedure is regu - lated as the foreign investor, because the host state is considered to be in a stronger position.
When some of the International Investment Treaties are examined, in Article 10 of the Treaty on the Mutual Promotion and Pro - tection of Investments between the Govern - ment of the Republic of Turkey and the Gov - ernment of the Russian Federation, it is seen that the dispute resolution process should start with a notification sent by the foreign investor to the host state and that the parties will resolve the dispute as amicably as pos - sible, and if the dispute cannot be resolved within six months following the notification of the foreign investor, the dispute shall be referred to i) a competent court or arbitration court of the contracting party in which the investment is made, ii) Stockholm Chamber of Commerce Arbitration Institute or iii) an arbitration tribunal to be established in ac - cordance with the Arbitration Rules of the United Nations Commission on Internation - al Commercial Law (“UNCITRAL”). As can be seen from the article, the stages in the dis - pute resolution provisions explained above and generally regulated in International In - vestment Treaties are reflected.
As per another International Investment Treaty, when Article 9 of the Treaty on the Mutual Promotion and Protection of Invest - ments between the Republic of Turkey and the Kingdom of Spain is examined, the dis - pute procedure should begin with a notifica - tion by the foreign investor, and the foreign investor and the host state will resolve the dispute in good faith through consultation and negotiations. If the dispute cannot be resolved within six months from the notifica - tion date, the foreign investor can take it to
i) the arbitral tribunal of the Paris Internation - al Chamber of Commerce, ii) UNCITRAL, and ICSID if both contracting states have signed the contract. In the bilateral investment trea - ty between the Russian Federation and the Republic of Turkey, it is stated that the local court or arbitration can be applied, and in this treaty, with the provision, “On condition that if the relevant investor has brought the dispute to the judicial courts of the Party that is party to the dispute; either the final decision must not have been taken within one year or the inves - tor must have abandoned his case,” it is stated that applying to the local court will prevent referring to arbitration or applying to arbitration will prevent referring to the local court. The aforementioned provision is explained by the concept of "fork on the road" in some of the international invest - ment treaties, and when applying to a lo - cal court or arbitration within the scope of International Investment Treaties contain - ing similar provisions, the possibility of re - sorting to the unpreferred way disappears.
As it can be understood from the provisions on dispute resolution given as an example above, disputes within the scope of Interna - tional Investment Treaties can be brought before institutions other than local courts and accepted worldwide such as the Stock - holm Chamber of Commerce Arbitration Institute, the Arbitration Court of Paris In - ternational Chamber of Commerce, ICSID and an arbitral tribunal constituted as per UNCITRAL rules. In this sense, International Investment Treaties are embodied as docu - ments in which the parties declare their will to arbitrate, and the foreign investor in a weak position is protected by opening the way for the dispute to be brought to arbitra - tion by the foreign investor, with the foreign investor's declaration of arbitration will. In practice, it is not common for a foreign in - vestor to take the dispute to the host state's local court, since it is unlikely that the host state's domestic court will rule against the host state. For this reason, it is seen that foreign investors take their disputes to arbi - tration and the most prominent institution in this field is ICSID.
III. ICSID
One of the highly essential qualifications of international investment agreements from the investor’s perspective is the dispute resolution mechanisms determined by such agreements. Within the scope of the international investment agreements, different amicable resolution methods, which direct to conciliation and arbitration, are determined for the disputes between the host state and the investor as an alternative to the conventional diplomatic resolution methods. ICSID, being determined as the official arbitration institution under numerous International Investment Agreements, has become one of the most prominent amicable dispute resolution methods.
ICSID was established by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“Convention”) which entered into force in 1966 under the auspices of the World Bank Group, with the aim of creating an investment environment that guarantees fair and equal treatment for foreign investments within an impartial and non-politic dispute resolution system. Considering that the Convention was signed and ratified by 155 states, as of 30 July 202015, it can easily be said that ICSID has become a globally accepted institution.
Pursuant to Article 1 of the Convention, the basis for the establishment of ICSID, the purpose of ICSID is to provide an opportunity for the settlement of investment disputes between the contracting states and the investors of other contracting states by means of conciliation and arbitration in accordance with the provisions of the Convention. The scope of the authority given to ICSID for this purpose is determined by Article 25 of the Convention and it is regulated that the jurisdiction of ICSID extends to legal disputes arising from an investment between a contracting state and a national of other contracting states who have submitted their written consent regarding the dispute to ICSID. Pursuant to the relevant article, in order for ICSID to have jurisdiction within the scope of a dispute, it must have jurisdiction over the parties to the dispute (jurisdiction ratione personae), jurisdiction over the subject of the dispute (jurisdiction ratione materia), and the parties must have written consent regarding the authority of ICSID16.
A. Jurisdiction Ratione Personae of ICSID
In order for ICSID to have jurisdiction ratione personae within the scope of a dispute, first of all, the host state where the foreign investment is made must be a party to the Convention. Moreover, the investor who is a party to the dispute must be a national of one of the contracting states of the Convention and not be a national of the host state where the investment in dispute is made. In that direction, investors with dual nationality will not be able to resolve their disputes with the host state before ICSID if they also hold the nationality of the host state.
B. Jurisdiction Ratione Materia of ICSID
Jurisdiction ratione materia of ICSID is subject to 3 (three) separate conditions in itself. These conditions can be listed as, the existence of a legal dispute, the necessity of legal dispute to arise from an investment, and a direct relationship between the investment and the legal dispute. In this context, firstly, the concept of legal dispute should be identified. Even though there isn’t any definition for legal disputes in the Convention, a legal dispute can briefly be expressed as "two parties adopting opposing views on whether a legal responsibility should be fulfilled," when various decisions given by different international judicial authorities are examined17. As for the determination of the investment, although it is necessary to make separate evaluations for each concrete case, it can be seen that the following criteria stands out for the evaluation process in the judgments given by ICSID: to exist for a certain period of time, to provide a measurable income to the investor, and to carry a risk factor for both parties. Finally, a direct relationship will be sought between the investment and the legal dispute. What is meant by the term “direct” here is not the nature of the investment, but the necessity for the legal dispute to directly arise from the investment.
C. Consent of the Parties
Pursuant to the Convention, jurisdiction of ICSID is dependent on the existence of the written consent of both parties. In this context, it will not be possible for the parties to unilaterally withdraw their given consent.
First of all, when we evaluate the issue from the aspect of states, it should be noted that signing, ratifying or accepting the Convention does not by itself form a consent. Today, states accept the jurisdiction of ICSID through the dispute resolution provisions of the International Investment Agreements they sign. For example, we can see that, subject to certain conditions regarding the resolution of disputes, Turkey has accepted the jurisdiction of ICSID in a significant amount of the investment promotion and protection agreements that it has signed with different states.
Investors who have investments in foreign states, will be able to bring their disputes regarding their investments to ICSID and resolve such disputes before ICSID, provided that the above-mentioned conditions are met. Considering the fact that the total number of lawsuits filed before ICSID has increased to 83818 as of June 30, 2021, it can be seen that ICSID continues to maintain importance for investors making international investments.
IV. CONCLUSION
At this current point that world trade has reached, international investments have become indispensable financial resources for both states and investors. Resolution of the disputes arising from international investments is as important as the international investments itself, for the continuation of international trade. International Investment Treaties, which aim to protect the weak investor and the investment itself against the strong state, also contribute to the protection of international market conditions besides the determinant position it holds regarding the resolution of investor-state disputes. Therefore, we believe that International Investment Treaties, which hold great importance for the aspects of both international trade and international investments, will undoubtedly continue to maintain this importance for a very long time.
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FOOTNOTE
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4 http://www.erdem-erdem.av.tr/yayinlar/hukuk-postasi/yatirimlarin-tesviki-ve-korunmasina-iliskin-ikili-anlasmalar/ (Date of Access, 09.01.2022).
5 Official Gazette dated 22.09.1994, numbered 22059.
6 Organisation for Economic Co-operation and Development (OECD), Fair and Equitable Treatment Standard in International Investment Law (Fair and Equitable Treatment), OECD Working Papers on International Investment, 2004/03, 2004, p.9.
7 OECD, Fair and Equitable Treatment, p. 2.
8 Official Gazette dated 28.12.2005, numbered 26037.
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10 Official Gazette dated 20.04.1989, numbered 20145.
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16 Dikran M. Zenginkuzucu, Devlet ve Yabancı Yatırımcılar Arasındaki Uyuşmazlıkların Çözümünde Uluslararası Yatırım Uyuşmazlıklarının Çözüm Merkezi (ICSID)’nin Kuruluşu ve İşlevi (ICSID’in Kuruluşu ve İşlevi), İstanbul, Ağustos 2012, s.89-109.
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