Postupak pred Međunarodnim centrom za rešavanje investiconih sporova (ICSID) kao funkcionalno apelacioni sistem

Abstract

The International Center for the Settlement of Investment Disputes (ICSID) was created as a depoliticized forum for the effective protection of investors’ rights. It stands as a synonym for the transition to a qualitatively different type of individual rights’ protection in the international scene. ICSID is a self contained system which consists of the entire necessary requirement for properly functioning, with the unique enforcement of the awards regulations, and a specific mechanism for the control of the awards within the system. As specificum in international law in general, ICSID fosters the concept of relative finality of the awards, which is reflected in prescribing post-arbitration procedures. The particularity of the system is reflected in the annulment procedure (Article 52 of the ICSID Convention), which is observed as a mechanism against "blind" enforcement. Through the development of ICSID practice, although initially conceived as an exceptional legal remedy, the annulment process began to gain the characteristics of the appeal procedure. This trend is identified in the ad hoc committees’ assumption of extensive authority, and in the standard for the review of the awards. This process is described as appeal on procedural basis. Along with such development of procedure, faced with outcomes of the disputes and the value of awarded compensations, the overall climate in the international economic environment has led to the questioning of the legitimacy of ICSID. Bearing in mind that the annulment procedure has exceed the original constraints set by the ICSID Convention, the dissertation aims at examining whether the practice of ad hoc committees bears any relevance to legitimacy crisis. The conducted research suggests that the legal nature of investment disputes has evolved in a manner that places them in realm of public law issues. This explains ICSID overgrowth of classical commercial arbitrations to a system which entails considering essential state interests, and in particular, sovereign regulatory freedoms. Ad hoc committees are positioned as bodies which assume the power to suggest the creation, as well as ways for implementation of public policies of the States. This places ad hoc committees as means for the indirect control of the States. Based on the theoretical understanding of administrative law in the national systems, its essential role is determined as the control of the governing apparatus of the State. By comparison, ICSID is described as the finest mechanism of global administrative law. This is how the legal doctrine creates a conceptual framework for the work of ad hoc committees, which, by functioning as a soft law instrument, renews the meaning of the ICSID Convention and gives the legitimacy to the changed authority of this Center. Theoretical conceptualization of the work of the ad hoc committees imposes the essential question: is it necessary to fix the functioning system that is still developing and appears not to be broken? Starting from such an understanding, the dissertation aims to show that the fact that ad hoc committees are assuming the authority that goes beyond the strict limits of the ICSID Convention, stands not as recognition of system imperfections, but rather as a method for adapting to changed circumstances.