Investment Arbitration - Ten Areas of Caution for Commercial Arbitrators

摘要

Though in many respects commercial arbitration and investment arbitration converge, in others they diverge significantly. So, it is only prudent for the commercial arbitrator who intends to cross into investment arbitration territory to fill his or her quiver with the right arrows before embarking on a journey in a land that is at the same time deceptively familiar and alien enough to conceal dangers and pitfalls. The authors, based on their practical experiences, provide some pointers to the commercial arbitrator by discussing a number of critical aspects of investment arbitration where the commercial arbitrator should exercise caution. The topics covered thus include the requisite background of the investment arbitrator, arbitrator 'issue conflicts', the particularities of arbitrating with State parties and of arbitration before tribunals constituted pursuant to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention), transparency, non-party participation, 'umbrella' clauses, iura novit curia, non-pecuniary remedies, the need to resist acting as a legislator rather than an arbitrator, and the importance of reasons in investment awards.