by NICOLAS BOEGLIN
The International Centre for Settlement of Investment Disputes (ICSID) between investors and states was established in 1965 with the adoption of the Washington Convention, establishing a specific arbitration mechanismunder the auspices of World Bank to resolve a very peculiar kind of disputes: the disputes between a state and a foreign investor. The decolonization process that took place in the 50s and 60s and the nationalization of many foreign companies by the new states (as well as the suspension of permits of exploration, mining an oil concessions, adoption of discriminatory legislation, among others unilateral decisions) provoked many tensions around the world, and domestic tribunals seemed at this time unable to resolve adequately the compensation claims presented by the investor. The Convention of 1965 stipulated that ICSID arbitration tribunals are constituted by three arbitrators: one designed by the claimant (the foreign investor), one by the state and that the third one (the President) by the World Bank. The Convention establishes also the procedural rulings and other formal aspects. We must note that in 1965, there are no general universal human rights instruments in force (the UN Declaration of Human Rights of 1948 is the only general text at the UN), and a few treaties on specific categories of victims or crimes; and we must recall that topics like the protection of indigenous peoples’ rights, the protection of environment and the status of water resources are absent of discussions of the international community.
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ICSID in the American hemisphere
Contrary to the perception that the ICSID mechanism has been accepted in the majority of the American hemisphere, many states of this region continue to be extremely distant from ICSID: Canada, Cuba, México and Dominican Republic have not ratified the ICSID Convention. In the case of Mexico, this attitude is rated by a Mexican author as “wise and rebellious” (4). We also have to recall that the following Caribbean states remain outside the ICSID jurisdiction: Antigua and Barbuda, Belize, Dominica (Commonwealth of)and Suriname. In South America, Brazilhas not approved (and not even signed) the ICSID convention and there has been no demonstration of interest shown in this matter by the now 6th world economy. Concerning Brazil, we must add that it has not ratified any BITs despite having signed many of them.
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