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29 J. Int'l Arb. 437 (2012)
BITs in Pieces: The Effectiveness of ICSID Jurisdiction after the ICSID Convention Has Been Denounced

handle is hein.kluwer/jia0029 and id is 445 raw text is: BITs in Pieces: The Effectiveness of ICSID
Jurisdiction after the ICSID Convention Has
Been Denounced
James Otis RODNER & Jaime Martinez EsTPVEZ*
Denounciation of the ICSID Convention by a Member State seems to be an effective way of
excluding ICSID jurisdiction in Bilateral Trade Agreements (BITs). However, if the ICSID
Convention is read together with the bilateral trade agreement that calls for ICSID and using
principles of interpretation of international conventions, one arrives at the conclusion that, for
investments completed prior to effective date of denunciation in most BITs, the ICSID
jurisdiction would survive the denunciation of the ICSID Convention. This has recently been
confirmed in the award in the case of Murphy Exploration and Production Company In-
ternational v. Republic of Ecuador,' regarding the modification of the scope of ICSID in a BIT
under Article 25(1) of the ICSID Convention.
The main purpose of a bilateral investment treaty (BIT) is to offer investors
protection in that disputes with the host country may be settled before a neutral
arbitration institution, for which the most frequently used arbitration forum is the
International Center for the Settlement of Investment Disputes (ICSID) in
Washington, D.C. ICSID operates under the rules of the Washington Convention
of 1965 (the ICSID Convention).2 A BIT without an adequate dispute resolution
provision offers the investor about as much protection as a parachute without the
silk: the harness and helmet give the illusion of protection, but once the skydiver
in freefall pulls the ripcord to release nothing but a bundle of loose strings, a total
failure of protection becomes painfully obvious.
Founding partners, Rodner Martinez & Asociados, Caracas, Venezuela. James Otis Rodner is a
member of the ICC Court and a member of the Academy of Political Science, Venezuela. Jaime
Martinez is professor of international commercial law at Universidad Cat6lica Andres Bello, Caracas.
This article is not an opinion of the firm Rodner Martinez & Asociados.
Murphy Exploration and Production Company International v. Republic of Ecuador, ICSID Case no.
ARB-08-4, Award of December 2010 on jurisdiction Arbitral Tribunal composed of 0. Blanco, H.
Griguera Nah6n and R. Vinueza, available at http://icsid.worldbank.or/ICSID/FrontServletrequest
2   The ICSID Convention is also referred to as the Washington Convention.
Rodner,James Otis & Estevez,Jaime Martinez. 'BITs in Pieces: The Effectiveness of ICSID Jurisdiction
after the ICSID Convention Has Been Denounced'. Journal of International Arbitration 29, no.4 (2012):
© 2012 Kluwer Law International BV, The Netherlands

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