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25 J. Int'l Arb. 71 (2008)
Denunciation of the Washington Convention and Non-Contractual Investment Arbitration: Manufacturing Consent to ICSID Arbitration

handle is hein.kluwer/jia0025 and id is 73 raw text is: Journal of International Arbitration 25(1): 71-87, 2008.
© 2008 Kluwer Law International. Printed in The Netherlands.
Denunciation of the Washington Convention and
Non-Contractual Investment Arbitration:
Manufacturing Consent1 to ICSID Arbitration?
Julien Fo=mw*
The possibility of denouncing the ICSID Convention has recently sparked doctrinal controversies. The scope of
such a denunciation and the consequences relating to it were central in these debates. Starting with the analysis
of the mechanism precisely set out in the Convention, this article, focusing only on the implication for
non-contractual arbitration, aims at clearly establishing the meaning of consent to ICSID arbitration, one of
the conditions preventing the denunciation of the Convention from having a full effect. The question thus
becomes whether BITs and national laws could be considered as unilateral consent to arbitration, as understood
by the drafters of the Convention. Applying concrete and correct treaty interpretation rules will enable us to
establish an accurate understanding of the relevant provisions of the Convention, without depriving them of
their proper meaning.
Dans un Etat, c'est-i-dire dans une soci&t oif il y a des lois, la libert6 ne peut consister qu'i pouvoir
faire ce que l'on doit vouloir, et i n' tre point contraint de faire ce que 'on ne doit pas vouloir:
MONTESQUIEU, DE L'ESPRIT DES LOIS (1758) Livre XI, Chapitre III.
Termination and suspension of treaties are two issues closely monitored by public
international law specialists, as these two operations have an impact both on the instru-
ment, in and of itself, and on the norm, the substance of the treaty.' The distinction
between termination and suspension is evident: in the first case the conventional instru-
ment disappears whereas in the case of a suspension, the treaty simply ceases to produce
effects for a given period of time. Denunciation is a third possibility, a hybrid of the two
aforementioned: the instrument and the substantial obligations remain in place but cease
to exist for the denouncing state, a former party to the treaty. The ratione personae scope
of the treaty is thus the only one modified.
The Convention on the Settlement of Investment Disputes between States and
Nationals of Other States (ICSID Convention, Convention or Washington Con-
vention), is usually cited as an exemplary conventional instrument to which most of the
countries in the world are progressively adhering. For example, in the past few years,
In reference to EDWARD S. HERMAN & NoAm CHOMSKY, MANurACTURING CONSENT (1988).
* Julien Fouret is an Associate in the Paris office of Salans, where is a member of the firm's international
arbitration practice group. He is also the editor of the International Case Law Review in the Revue Qubicoise de Droit
International since 2002 and the co-author of its ICSID case law section. E-mail: jfouret@salans.com. The views
expressed in this article are the author's and do not reflect the views of his firm.
2 p. DAILLIER & A. PELLET, DROIT INTERNATIONAL PUBLIC 302 (7th ed., 2002).
Copyright 2007 by Kluwer Law International. All rights reserved
No claims asserted to original government works

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