International Center for Settlement of Investment Disputes- The International Agency for the Settlement of Investment Disputes (ICSID) is an organization within the World Bank, created by the UN to resolve arbitration disputes. It was established in 1966 and its activities are based on the following... ... Banking Encyclopedia

INTERNATIONAL CENTER FOR SETTLEMENT OF INVESTMENT DISPUTES- INTERNATIONAL CENTER FOR SETTLEMENT OF INVESTMENT DISPUTES ICSIDAn independent body created in 1965 on the basis of the Convention for the Settlement of Investment Disputes between States and Citizens of Different States. The center aims... ... Encyclopedia of Banking and Finance

International Center for Resolution of Investment Disputes- an international organization whose main task is to mediate and resolve investment disputes between governments and private foreign investors. ICRIS was created in 1966. The Chairman of the ICRIS is the President of the World Bank... Financial Dictionary

- (International Bank for Reconstruction and Development) Structure and activities of the IBRD Objectives of the IBRD, International Development Association Contents Contents Section 1. Group. Section 2. . Subsection 1. Structure of the IBRD. Subsection 2. Activities.… … Investor Encyclopedia

International Bank for Reconstruction and Development- It is proposed to rename this page to the International Bank for Reconstruction and Development. Explanation of reasons and discussion on the Wikipedia page: Towards renaming / July 24, 2012. Perhaps its current name does not comply with the norms... ... Wikipedia

ICSID- International Center for Settlement of Investment Disputes… Dictionary of Russian abbreviations

The World Bank- (World Bank) The World Bank is an intergovernmental lending institution whose goal is to improve the living standards of developing countries by providing them with financial assistance Definition of the World Bank, history of the World Bank, its ... ... Investor Encyclopedia

International financial assistance- (International financial assistance) International financial assistance is assistance that is provided to states subject to certain economic conditions. International financial assistance to a state is provided for the development ... ... Investor Encyclopedia

World Bank Group- Headquarters of the World Bank Group in Washington DC World Bank Group (English: World Bank Gro ... Wikipedia

International investors- (International investors) Contents Contents Definitions of the subject described The evolution of the development of international investment relations The concept of international investment law Participants in international investments Forms of international... ... Investor Encyclopedia

Operating principle of the organization

ICSID operates in accordance with the Convention on the Settlement of Investment Disputes. The Convention considers two main ways to resolve disputes: reconciliation of the parties and arbitration proceedings. Accordingly, the convention contains procedural rules for the institution of proceedings, for conciliation hearings and for the conduct of arbitration. Service to the parties at the Center is voluntary and paid. The amount of the fee is approved by the Secretary General. Currently, many agreements concluded in the field of cross-border investment refer to ICSID as an arbiter in the event of investment disputes.

Membership

ICSID members include 151 states and Kosovo (as of April 2014).

Signed but not yet ratified accession treaties: Belize, Dominican Republic, Ethiopia, Guinea-Bissau, Kyrgyzstan, Namibia, Russia, Thailand.

Non-ICSID countries: Andorra, Angola, Antigua and Barbuda, Bhutan, Brazil, Cook Islands, Cuba, Djibouti, Dominica, Equatorial Guinea, Eritrea, Guam, India, Iran, Iraq, Kiribati, Laos, Liechtenstein, Libya, Maldives Islands, Marshall Islands, Mexico, Monaco, Montenegro, Myanmar, Nauru, Niue, North Korea, Palau, Poland, San Marino, South Africa, Suriname, Tajikistan, Tuvalu, Vanuatu, Vatican City, Russian Federation, Vietnam.

Sources

Egorov A.V. "International financial infrastructure", M.: Linor, 2009. ISBN 978-5-900889-28-3
Moiseev A.A. "International financial organizations. Legal aspects of activities", M.: Omega-L, 2006. ISBN 5-98119-503-7
Krasavina L.N., Bylynyak S.A., Smyslov D.V. "International monetary, credit and financial relations", 2003, ISBN 978-5-297-02117-4

Berdimuhamedov, Gurbanguly Myalikgulyevich

Gurbanguly Myalikgulyevich Berdimuhamedov (Turkmen: Gurbanguly Mälikgulyýewiç Berdimuhamedow; born June 29, 1957, village of Babarap, Geok-Tepinsky district, Ashgabat region, Turkmen SSR, USSR), bears the title Arkadag (Turkmen: Arkadag - “patron”) - Turkmen state and politician, President of Turkmenistan from February 14, 2007 (from December 21, 2006 to February 14, 2007 acting), Chairman of the Cabinet of Ministers of Turkmenistan, Supreme Commander-in-Chief of the Armed Forces of Turkmenistan with the rank of Army General.

He has academic degrees of Doctor of Medical and Economic Sciences, academician of the Academy of Sciences of Turkmenistan. Chairman of the Democratic Party of Turkmenistan in 2007-2013.

The World Bank

The World Bank (also World Bank, English The World Bank) is an international financial organization created with the aim of organizing financial and technical assistance to developing countries.

In the process of its development, the World Bank has undergone various structural changes, so the term World Bank has meant different organizations at different stages.

Initially, the World Bank was associated with the International Bank for Reconstruction and Development, which provided financial support for the reconstruction of Western Europe and Japan after World War II. Later, in 1960, the International Development Association was created, which took over some of the functions related to the policies of this bank.

Currently, the World Bank actually refers to two organizations:

International Bank for Reconstruction and Development;

International Development Association. At different times, they were joined by three more organizations created to solve the problems of the World Bank:

International Finance Corporation;

Multilateral Investment Guarantee Agency;

International Center for Settlement of Investment Disputes. All five organizations are members of the World Bank Group and are called the World Bank Group.

In some cases, the World Bank still refers to the International Bank for Reconstruction and Development, which still forms the basis of the World Bank's activities.

World Bank Group

The World Bank Group is five organizations created at different times and united functionally, organizationally and territorially, the purpose of which is currently to provide financial and technical assistance to developing countries.

The World Bank Group includes the following organizations:

International Bank for Reconstruction and Development - IBRD (eng. w:en:International Bank for Reconstruction and Development - IBRD)

International Development Association - IDA (eng. w:en:International Development Association - IDA)

International Finance Corporation - IFC (eng. w:en:International Finance Corporation - IFC)

Multilateral Investment Guarantee Agency - MIGA

International Center for Settlement of Investment Disputes - ICSID (eng. w: en: International Center for Settlement of Investment Disputes - ICSID) The first two organizations (IBRD and IDA) form the World Bank itself.

The headquarters of all five organizations are located in Washington, USA.

Manila (airport)

Manila Ninoy Aquino International Airport (Filipino: Paliparang Pandaigdig ng Ninoy Aquino) (IATA: MNL, ICAO: RPLL) is a civil airport serving the Capital Region metropolitan area. The largest airport in the Philippines is located on the border between the cities of Pasay and Paranaque, about seven kilometers south of Manila and southeast of Makati.

The port is operated by the state-owned Manila International Airport Authority (a subsidiary of the Department of Transportation and Communications) and is the main transit hub for all Philippine air carriers.

The airport is named after former Philippine Senator Benigno "Ninoy" Aquino Jr., who was assassinated at the same airport on August 21, 1983 while returning from exile from the United States of America.

In 2012, 31,558,002 passengers traveled through Manila International Airport. In terms of passenger traffic, the port is one of the busiest commercial airports in the Asian region.

International Bank for Reconstruction and Development

The International Bank for Reconstruction and Development (abbr. International Bank for Reconstruction and Development) is the main lending institution of the World Bank. The International Bank for Reconstruction and Development is a specialized agency of the UN, an interstate investment institution established simultaneously with the IMF in accordance with the decisions of the International Monetary and Financial Conference at Bretton Woods in 1944. The IBRD Agreement, which is also its charter, officially came into force in 1945, but the bank began operating in 1946. The location of the IBRD is Washington.

Transatlantic Trade and Investment Partnership

The Transatlantic Trade and Investment Partnership (TTIP) is a planned free trade agreement between the European Union and the United States. Its supporters believe that the agreement will lead to multilateral economic growth, while opponents argue that it will lead to increased corporate power and make it more difficult for governments to regulate markets for the benefit of the whole society. The American government is working in two directions: along with TTIP, it is implementing the Trans-Pacific Agreement with similar goals partnership. After information about the proposed draft was leaked in March 2014, the European Commission launched a public consultation on a limited number of points and published a summary of the document in January 2015.

The agreement was expected to be completed by the end of 2014, but was pushed back to 2015. On 7 January 2015, the European Commission publicly presented its negotiating texts.

Turkmenistan

Turkmenistan, official name - Turkmenistan (Turkmenistan) is a state in Central Asia. It borders with Afghanistan and Iran in the south, with Kazakhstan and Uzbekistan in the north. It is washed by the inland Caspian Sea in the west and has no access to the world ocean.

The country's independence was declared on October 27, 1991. Member of the UN since March 2, 1992. It is a neutral state. Secular state, presidential republic. The President of Turkmenistan is Gurbanguly Berdimuhamedov (from February 14, 2007, before that from December 21, 2006 to February 14, 2007 he served as acting President of Turkmenistan).

It is divided into six administrative-territorial units, five of which are velayats, one is a city with the rights of a velayat. The capital of the state is the city of Ashgabat, which is the largest in the country.

The majority of believers profess Islam.

Turkmenistan is the 4th country in the world in terms of natural gas reserves. It has the second largest gas field in the world. Since 1993, Turkmenistan has had a system of free electricity, water use, gas consumption, and free distribution of drinking water and salt. It was phased out in 2015-2019.

In Transparency International's 2018 Corruption Perceptions Index, Turkmenistan ranked 161st among 180 countries.

Ukraine's membership in international organizations

This article contains a list of international organizations of which Ukraine is a member or observer.


Main organs
Membership
Specialized institutions
Auxiliary organs
Advisory bodies
Programs and funds
Educational and scientific research institutes
Other organizations
Other trust funds	UNFIP UNDEF
Related bodies
Branches
Departments, management
see also

General provisions

Legal personality

Territory

legal regime
acquisition

Population

Industries

International Center for the Settlement of Investment Disputes (ICSID)

The International Center for the Settlement of Investment Disputes (ICSID) was established in accordance with the Convention on the Settlement of Investment Disputes between States and Natural or Legal Persons of Other States, signed on March 18, 1965 in Washington (hereinafter referred to as the Washington Convention), which entered into force on 14 October 1966. As of November 1, 2010, the Convention has been signed by 155 states and ratified by 144 states. The International Bank for Reconstruction and Development (IBRD), part of the World Bank group, was the main initiator of the adoption of this convention.

The main achievement of the Washington Convention was the creation of a mechanism for international arbitration for the consideration of investment disputes in order to remove such disputes from the jurisdiction of the national authorities of the participating countries to ensure the protection of foreign investments. From a legal perspective, the most significant feature of the convention is that it clearly establishes the ability of an individual or corporation to bring a complaint against a State in an international forum. However, no state party to the Washington Convention provides diplomatic protection or brings an international claim in respect of a dispute that one of its individuals or legal entities and another contracting state has agreed to submit or has submitted to arbitration on the basis of the Washington Convention, unless the other such contracting state does not comply with or comply with the arbitral award rendered in such dispute (Article 27 of the Washington Convention). Thus, the significance of the Washington Convention lies in the fact that it created the conditions for states to withdraw from the practice of exercising their right to diplomatic protection of their investors and made it possible to transform disputes from international law into private law ones.

In the first twenty years of the existence of the convention, parties rarely resorted to the arbitration procedure for considering investment disputes within the framework of ICSID. This was explained by the absence in international investment contracts of a clause on the transfer of disputes to an international arbitration institution. Nevertheless, during this period there were isolated cases of disputes being considered within the framework of ICSID, which are valuable as precedents and played a major role in the development of further arbitration practice.

The situation has changed dramatically since the mid-1990s. Currently, hundreds of investment disputes are being considered by ICSID (with CIS states actively acting as parties to many disputes), and with some confidence we can assume that their number will only increase. This was facilitated by the widespread conclusion of bilateral investment treaties (BITs) on the protection of foreign investments, which contain an arbitration clause for the settlement of investment disputes within the framework of ICSID.

The number of countries that have acceded to the Washington Convention is also growing. Currently, more than 90% of World Bank members have signed and ratified this agreement. The Russian Federation acceded to the convention in 1995, although it has not yet ratified it.

The bodies of ICSID are: the Administrative Council and the Secretariat. The Secretariat meets every year in accordance with the annual meeting of the World Bank, where the chairman ex officio is the President of the World Bank. The Secretariat includes one representative from each state party to the Convention. As a rule, the representative from the state is the Minister of Finance or his deputy.

The Secretary General and the Deputy Secretary General head the Secretariat and are elected by the Administrative Council. The Secretary General has traditionally been the Chief Adviser of the World Bank. The Secretariat provides administrative support for the activities of the Center, in particular, maintains and provides the parties with lists of possible arbitrators, registers applications for arbitration proceedings, facilitates the formation and activities of the arbitration panel, manages funds to cover arbitration costs, approves rules and procedures for the activities of arbitrators, and develops model arbitration clauses for investment contracts and BITs.

The Secretariat consists of several advisers with specific experience in the legal and investment fields and knowledge of several foreign languages. Advisors provide advisory assistance to representatives of the parties on the organization of the arbitration process. The Secretary General appoints one of the advisers as secretary of the arbitral tribunal. The secretary of the arbitration provides general support for the activities of the arbitration, in particular: a) stores all documents; b) acts as an intermediary in transferring to the arbitration tribunal all written statements and evidence of the parties; c) makes all necessary preparations for the hearings; d) monitors the time of hearings; e) ensures compliance with the necessary procedural requirements; f) prepares draft procedural documents; g) ensures the availability of the necessary funds to cover the costs associated with the arbitration procedure.

The Center has several rules and regulations that govern various aspects of the Center's activities. The basic rules and regulations include: a) Administrative and financial rules that govern the activities of the Administrative Council, as well as the activities of the Center in the field of conciliation and arbitration procedures; b) Institutional rules governing the initiation of conciliation and arbitration procedures within the framework of ICSID; c) Arbitration rules, which regulate in detail the conduct of the arbitration procedure, including the procedure for forming the arbitral tribunal, the procedure for the parties to provide written and oral statements and the preparation of the arbitral award; d) Rules for the conciliation procedure.

The procedure for referring a case to ICSID requires the parties to fulfill a number of conditions. First, the parties must mutually agree that they will refer the dispute between them to ICSID, and such agreement must be in writing. An agreement between the parties may concern both a dispute that has already arisen and disputes that may arise in the future. Secondly, the parties to the agreement must be a contracting state and an individual or legal entity of another contracting state. Finally, the dispute must be of a legal nature and arise from an investment relationship with a foreign element.

ICSID jurisdiction arises from contracts concluded between the investor and the host state. Also, within the framework of ICSID, arbitration can also be of a “non-contractual” nature, when the arbitration provision is not expressed directly in the contract between the investor and the host state, but indirectly. For example, provisions for the referral of investment disputes to ICSID may be contained in the national investment legislation of the host state, in a BIT, as well as in a multilateral investment agreement to which several states may be parties.

In 1978, the World Bank developed the ICSID Supplementary Procedure to expand the jurisdiction of ICSID and allow states and private investors of other states that are not members of the Convention to resolve investment disputes within the Center. The additional procedure is provided and controlled by the ICSID Secretariat. Thus, the resolution of investment disputes has become available to states and private investors of other states that are not covered by the convention. This provision takes on particular significance in connection with investment disputes arising under Chapter 11 of the North American Free Trade Agreement (NAFTA) since, unlike the United States, Canada and Mexico are not parties to the Washington Convention. Agreement to the Energy Charter in art. 26 also provides for the possibility of using the ICSID Supplementary Procedure.

So, in Art. 1120 NAFTA provides for the right of an investor to bring a claim: a) under the Washington Convention in ICSID, provided that the defendant state and the plaintiff state are parties to the Washington Convention; b) according to the ICSID Additional Rules, if the respondent state or the plaintiff state is a party to the Washington Convention; c) in accordance with the UNCITRAL Arbitration Rules.

Another example. According to paragraph 3 of Art. 26 of the Energy Charter Treaty, the state party to the Treaty gives its unconditional consent to submit the dispute to international arbitration or a conciliation body in accordance with the provisions of this article. Moreover, if any investor prefers to submit a dispute for resolution in this way, this investor also gives his consent in writing to submit the dispute for consideration: 1) to ICSID; 2) to a sole arbitrator or to an ad hoc arbitration court established in accordance with the UNCITRAL Arbitration Rules or 3) for arbitration consideration at the arbitration institute of the International Chamber of Commerce in Stockholm

International Center for Resolution of Investment Disputes(in English, International Center for Settlement of Investment Disputes, abbreviated ICSID) is an independent structure at the international level, whose priorities are the settlement of investment disputes between private investors of foreign countries and governments. ICSID is a member of the World Bank Group of institutions.

History of ICSID

On March 18, 1966, at a conference in Washington (United States), a Convention was signed, which should regulate controversial issues in the field of investments between individual states and investors of other countries. This document provided for the creation of a special Center of international level, which would resolve disagreements between the parties in this direction. ICSID was formed in October 1966.

Currently (according to 2014 data) ICSID members include 150 states, as well as Kosovo. Ecuador and Bolivia left the Center. Russia, Belize, Ethiopia, the Dominican Republic, Kyrgyzstan, Namibia, Guinea-Bissau, Moldova and Thailand have already signed the accession treaty but have not yet ratified it.

Poland, Angola, Andorra, Iran, North Korea, Iraq, Vatican City, San Marino, Vietnam, South Africa, Brazil, Bhutan, Dominica, Tajikistan, Cuba, Cook Islands, Libya, Liechtenstein, Monaco, Montenegro, Marshall Islands, Maldives, Mexico and India are states that are not members of ICSID.

ICSID structure

This Center consists of a Secretariat and an Administrative Council. The latter consists of one representative from each state that has ratified the treaty agreement to join the ICSID.
The secretariat of this organization consists of a general secretary, his deputy and staff.

Functional responsibilities of the ICSID Secretariat:

assistance in the creation of arbitration committees and tribunals, a conciliation commission;

providing support for organizing the process of conducting, including initiating, ICSID hearings;

maintaining lists of arbitrators and conciliators;

ensuring the work of the Administrative Council.

Lisitsa V.N., senior researcher at the Institute of Philosophy and Law of the SB RAS, candidate of legal sciences, associate professor.

On March 18, 1965, one of the fundamental sources of international investment law was adopted - the Washington Convention on the Settlement of Investment Disputes between States and Citizens of Other States of March 18, 1965 (hereinafter referred to as the Washington Convention)<1>. As of January 25, 2006, it was signed by 155 states, of which 143 ratified it<2>.

<1>International private law. Sat. documents / Comp. K.A. Bekyashev, A.G. Khodakov. M.: Publishing house "BEK", 1997. pp. 592 - 606.
<2>[Electronic resource]: .

The Washington Convention established an international procedure for resolving investment disputes between states and individuals or legal entities of other states through the establishment of the International Center for the Settlement of Investment Disputes (hereinafter referred to as ICSID). However, no state party to the Washington Convention provides diplomatic protection or brings an international claim in respect of a dispute that one of its individuals or legal entities and another contracting state has agreed to submit or has submitted to arbitration on the basis of the Washington Convention, unless the other such contracting state does not comply with or comply with the arbitral award rendered in such dispute (Article 27 of the Washington Convention). Thus, the significance of the Washington Convention lies in the fact that it created the conditions for states to withdraw from the practice of exercising their right to diplomatic protection of their investors and made it possible to transform disputes from international law into private law<3>.

<3>See: Sella P. Dealing with Investment Problems: the World Bank and the International Center for Settlement of Investment Disputes / P. Sella // International Control of Investment // The Dusseldorf Conference on Multinational Corporations. N.Y., Washington, L., 1973. P. 136.

Jurisdiction of ICSID, according to Art. 25 of the Washington Convention, applies to all legal disputes arising directly from relations related to investments between a state party to the Washington Convention (or any authorized body of the state notified by the ICSID state) and a person of another state party to the Washington Convention, subject to written consent of the parties to the dispute to refer such a dispute for resolution to ICSID.

Thus, in order for ICSID to be competent to consider an investment dispute, an appropriate written consent of the parties to the dispute is required - an arbitration agreement. International and national law of many countries of the world (including the Russian Federation) and international arbitration practice follow the path of recognition of an agreement on the transfer of a dispute concluded in writing, if it is contained in a document signed by the parties or concluded by exchange:

by letters, messages by teletype, telegraph or using other means of telecommunication, ensuring the recording of such an agreement;
a statement of claim and a response to the claim, in which one of the parties claims the existence of an agreement, and the other does not object to it.

So, according to paragraph 2 of Art. II New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of December 29, 1958 (hereinafter referred to as the New York Convention)<4>the term "written agreement" includes an arbitration clause in a contract, or an arbitration agreement signed by the parties, or contained in an exchange of letters or telegrams.

<4>Bulletin of the Supreme Arbitration Court of the Russian Federation. 1993. N 8. P. 108 - 113.

In accordance with paragraph 2 of Art. I European Convention on Foreign Trade Arbitration (Geneva, April 21, 1961)<5>the term "arbitration agreement" means an arbitration clause in a written transaction or a separate arbitration agreement signed by the parties or contained in an exchange of letters, telegrams or teletype messages, and in relations between States in which no law requires the written form of the arbitration agreement , - any agreement entered into in a form permitted by these laws.

<5>

A similar rule is contained in paragraph 2 of Art. 7 of the Law of the Russian Federation of July 7, 1993 N 5338-1 “On International Commercial Arbitration”<6>: “An arbitration agreement is concluded in writing. An agreement is considered to be concluded in writing if it is contained in a document signed by the parties or concluded through an exchange of letters, messages by teletype, telegraph or using other means of telecommunication that ensure the recording of such an agreement, or by exchange a statement of claim and a response to the claim, in which one of the parties claims the existence of an agreement, and the other does not object to it. A reference in an agreement to a document containing an arbitration clause is an arbitration agreement, provided that the agreement is concluded in writing, and this reference is such as to make the said clause part of the contract."

<6>Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation. 1993. N 32. Art. 1240.

The question of ways to reach an agreement between the parties was also raised when considering investment disputes at ICSID. Thus, in the case of Tradex Hellas S.A. v. Republic of Albania (Case No. ARB/94/2)<7>The Albanian Government disputed the jurisdiction of ICSID because there was no written agreement between the Albanian Government and the Greek company Tradex Hellas S.A. to refer the dispute to ICSID (in accordance with Article 25 (1) of the Washington Convention).

<7>ICSID Review - Foreign Investment Law Journal. 1999. Vol. 14. N 1. P. 197 - 249.

In its decision, the arbitral tribunal noted that, firstly, the Washington Convention does not require that the consent of the parties be expressed in any separate document. Secondly, the inclusion in the text of an international treaty or an act of national legislation of a provision on the competence of ICSID indicates the consent of the state to transfer possible disputes to ICSID.

However, the ICSID court denied its jurisdiction, citing the fact that the request to consider the dispute at ICSID was received before the entry into force of the bilateral international treaty between Greece and Albania on the promotion and mutual protection of investments, which consolidated the competence of ICSID.

So, the jurisdiction of ICSID can be based on a bilateral international treaty on the promotion and protection of investments or national legislation that contains relevant provisions. And the ICSID court referred to this in other cases: Ceskoslovenska Obchodni banka, A.S. v. Slovak Republic (Case No. ARB/97/4)<8>and Asian Agricultural Products Limited v. Republic of Sri Lanka<9>.

<8>ICSID Review - Foreign Investment Law Journal. 1999. Vol. 14. N 1. P. 251 - 283; 2000. Vol. 15. N 2. P. 544 - 557.
<9>ICSID Reports. Cambridge, 1997. Vol. 4. P. 246 - 251.

The formulations on the competence of ICSID used in national legislation are different. Thus, the Investment Code of Uganda 1991 (Article 30) provides for the resolution of disputes in accordance with the Washington Convention through arbitration, the Investment Code of the Central African Republic of 1988 (Article 30) - a conciliation procedure or arbitration, the Investment Code of Cote d" Ivoire 1984 (art. 10) - conciliation procedure and arbitration proceedings, Madagascar Investment Code 1989 (art. 10) - arbitration proceedings, which must be preceded by a conciliation procedure<10>.

<10>Quote by: Schreuer C.H. The ICSID Convention: A Commentary / C.H. Schreuer. Cambridge, 2001. P. 98.

However, the mere mention of ICSID as a possible body for resolving a dispute (along with a national court or other arbitration tribunal) does not, in our opinion, mean the state’s consent to the competence of ICSID. If there are words in the wording that imply the conclusion of an agreement between the parties on the choice of a competent court, the provisions of the national law should not be considered a unilateral proposal of the state, which can be accepted by the investor unilaterally<11>. Therefore, it is necessary to carefully analyze the wording of the national law in order to determine the presence or absence of state consent.

<11>Ibid. P. 204 - 205.

Let us turn, for example, to Art. 10 of the Federal Law of July 9, 1999 N 160-FZ "On Foreign Investments in the Russian Federation"<12>. It establishes that a dispute between a foreign investor arising in connection with investment and business activities on the territory of the Russian Federation is resolved in accordance with international treaties of the Russian Federation and federal laws in court or arbitration court or in international arbitration (arbitration court). Similar wording is enshrined in Art. 22 of the Federal Law of December 30, 1995 N 225-FZ “On Production Sharing Agreements”: “Disputes between the state and the investor related to the execution, termination and invalidity of agreements are resolved in accordance with the terms of the agreement in court, in arbitration court or in an arbitration court (including international arbitration institutions)"<13>.

<12>Collection of legislation of the Russian Federation. 1999. N 28. Art. 3493.
<13>Collection of legislation of the Russian Federation. 1996. N 1. Art. 18.

These provisions do not contain any mention of ICSID, or any other specific arbitration court, and therefore, from our point of view, do not give rise to the state’s consent to consider the ICSID dispute.

The arbitration courts of the Russian Federation adhere to a similar position. Thus, a Russian machine-building plant filed a claim in the arbitration court against a trading house located in Switzerland and having a branch on the territory of the Russian Federation, to invalidate the contract concluded with it. The foreign economic contract for the international purchase and sale of goods contained an arbitration clause stating that all disagreements arising from the obligations under this agreement would be considered “at the Paris Institute.”

In a written objection to the claim, the defendant indicated that the foreign economic contract contains an arbitration clause, but did not explain which arbitration court this clause refers to. During the proceedings, the arbitration court found that the plaintiff, like the defendant, could not specify the content of this clause: he did not name the exact name of international institutional arbitration, did not give explanations about it, and denied the validity of his will to the arbitration agreement in this foreign economic contract. In other words, the court found that this arbitration agreement cannot be specified and, therefore, fulfilled by the parties to the foreign economic contract. As a result, the arbitration court accepted the claim of the Russian enterprise for consideration<14>.

<14>See: paragraph 13 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 1998 No. 29 “Review of judicial and arbitration practice of resolving disputes in cases involving foreign persons” // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1998. N 4. P. 38 - 56.

A completely different formulation is set out in Art. 1120 North American Free Trade Agreement (NAFTA)<15>. It provides for the right of the investor to bring a claim: a) under the Washington Convention in ICSID, provided that the respondent state and the plaintiff state are parties to the Washington Convention; b) according to the Additional Facility Rules of ICSID, if the respondent state or the plaintiff state is a party to the Washington Convention; c) according to the UNCITRAL Arbitration Rules<16>.

<15>Legal Problems of International Economic Relations: 2002 Documents Supplement / Edited by J.H. Jackson, W.J. Davey, A.O. Sykes. St. Paul, 2002. P. 512 - 734.
<16>

at ICSID;
a sole arbitrator or an ad hoc arbitral tribunal established in accordance with the UNCITRAL Arbitration Rules or
for arbitration consideration at the Arbitration Institute of the International Chamber of Commerce in Stockholm.

In these cases, from our point of view, the state consent required by the rules of the Washington Convention was given. This is confirmed by the case of Waste Management, Inc. v. United Mexican States (Case No. ARB(AF)/98/2)<17>from the international arbitration practice of ICSID.

<17>ICSID Review-Foreign Investment Law Journal. 2000. Vol. 15. N 1. P. 214 - 240.

In it, the municipality of Acapulco de Juarez in the Mexican state of Guerrero granted a waste disposal concession to Acaverde, a company owned by the American corporation Waste Management, Inc., incorporated in the state of Delaware. The lawsuit against Mexico was brought in 1998 in connection with the revocation of the license.

In its decision, the ICSID arbitration court noted that, by virtue of Art. 1122 NAFTA, the state agreed to consider the investment dispute at ICSID. However, the plaintiff did not fully comply with the requirement of Art. 1121 of NAFTA, in particular, he did not fully express his consent to arbitration at ICSID in writing and did not waive his right to defense in other judicial and arbitration institutions. On this basis, by a majority vote, the ICSID arbitration court declared itself incompetent to resolve the dispute.

In an arbitration agreement, the parties may elect as competent an “ad hoc” court - an arbitration court formed to resolve a specific individual dispute. The procedure for establishing such a court in the case where the parties in the arbitration record did not agree on the appointment of an arbitrator (arbitrators) and did not indicate the place of arbitration is provided, in particular, in paragraph 3 of Art. IV European Convention on Foreign Trade Arbitration<18>, UNCITRAL Arbitration Rules, UN Economic Commission for Europe Arbitration Rules<19>.

<18>Gazette of the Supreme Soviet of the USSR. 1964. N 44. Art. 485.
<19>[Electronic resource]: [Reference legal system].

For example, a Russian enterprise filed a claim with the Arbitration Court of the Russian Federation against a French trading house with a branch in the Russian Federation for damages. Despite repeated notifications sent in the manner prescribed by international treaties, the defendant did not appear in court, but submitted a written objection to the consideration of the case in a state court, citing a clause in the contract for “ad hoc” arbitration.

The arbitration court concluded that it should leave the claim without consideration if there is an agreement between the persons participating in the case to submit the dispute to an arbitration court and the possibility of appealing to the arbitration court has not been lost, and if the defendant, who objects to the consideration of the case in the arbitration court, does not later than his first statement on the merits of the dispute, he will file a petition to transfer the dispute to arbitration. In this case, the parties did not lose the opportunity to apply to ad hoc arbitration. Therefore, the Arbitration Court of the Russian Federation recognized itself as incompetent to consider this dispute between the parties<20>.

<20>See: paragraph 19 of the information letter of the Presidium of the Supreme Arbitration Court of Russia dated January 18, 2001 No. 58 “Review of the practice of resolving disputes by arbitration courts related to the protection of the rights of foreign investors” // [Electronic resource]: [Reference legal system].

At the same time, the existence of an arbitration agreement does not mean an irrevocable refusal by the parties to transfer the dispute to another court. It can be changed by agreement of the parties, including when one party applies to this other court, and the other party does not object to this.

Arbitration practice in the Russian Federation also proceeds from this provision. For example, between the open joint-stock company "Preobrazhenskaya Base of Trawling Fleet" (customer) and the Japanese company "Taye Gege Co, Ltd" (contractor), the legal successor of which is the Japanese company "Maruha Corporation", a contract dated July 27, 1993 N TM- 001-93 for the repair of the floating base "Kaliningradsky Komsomolets". Clause 54 of the contract provided that all disputes and disagreements between the parties would be resolved by arbitration in Stockholm without the intervention of the general courts; When resolving a dispute, arbitration is guided by the terms of the contract, and in other cases the substantive law of Sweden is applied. By addition of February 18, 1998 No. 3 to the contract, the parties changed the wording of clause 54, establishing that disputes that arise are subject to resolution in the Arbitration Court of the Primorsky Territory in accordance with the procedure established by the legislation of the Russian Federation.

The Presidium of the Supreme Arbitration Court of the Russian Federation concluded that if there is an agreement between the disputing parties to submit disagreements to arbitration, the Russian arbitration court has the right to consider a dispute within its jurisdiction with the participation of a foreign person even if the claim is filed in the appropriate arbitration court of a constituent entity of the Russian Federation and the defendant does not make a request to refer the dispute to an arbitration court before its first statement on the merits of the dispute. In this case, at the time of filing the claim, the parties had not lost the opportunity to consider the dispute that had arisen by an arbitration court (arbitration), however, before his first statement on the merits of the dispute, the defendant did not confirm his desire to go to an arbitration court (arbitration), but, on the contrary, gave arguments and presented evidence on the merits of the stated claim for payment of debt. Therefore, after its first statement on the merits of this dispute, the defendant could not refer to the existence of an arbitration clause<21>.

<21>See: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 21, 2000 N 6084/99 // [Electronic resource]: [Reference legal system].

In the international and national law of many countries, an arbitration clause is considered autonomous from the contract in which it is contained. This means that the invalidation of a contract does not entail the invalidity of the agreement to submit a dispute to an arbitration court (clause 2 of Article 7 of the Law of the Russian Federation of July 7, 1993 N 5338-1 “On International Commercial Arbitration”).

This provision is subject, from our point of view, to clarification. The fact is that it is valid only in relation to the grounds that affect the invalidity of the contract, and not the arbitration clause. These are those that may be associated with defects of form or content. For example, Civil Code of the Russian Federation<22>(hereinafter referred to as the Civil Code of the Russian Federation) and other federal laws in some cases require compliance with a written notarial form of the transaction. Otherwise, it is invalid (clause 2 of article 162, clause 1 of article 165 of the Civil Code of the Russian Federation). The same should be said with regard to the agreement’s compliance or non-compliance with the special requirements of federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation (Article 168 of the Civil Code of the Russian Federation).

<22>Collection of legislation of the Russian Federation. 1994. N 32. Art. 3301.

At the same time, there are grounds that should simultaneously give rise to the invalidity of both the contract and the arbitration clause contained in it. These should include those that are associated with defects in the subject composition and will in the transaction (Articles 171 - 179 of the Civil Code of the Russian Federation). It is clear, for example, that if a person was declared incompetent, he could not enter into any transaction (both a contract and an arbitration agreement) and give rise to any legal consequences (Article 171 of the Civil Code of the Russian Federation). It is advisable to support the course of our reasoning by the provisions of Art. 180 of the Civil Code of the Russian Federation, which states: “The invalidity of part of a transaction does not entail the invalidity of its other parts if it can be assumed that the transaction would have been completed without the inclusion of its invalid part.”

It is from these ideas, in our opinion, that the New York Convention comes, which in paragraphs. "a" clause 1 art. V establishes the following grounds for refusal to recognize and enforce an arbitral award:

the parties to the arbitration agreement were, under the law applicable to them, in any way incapacitated;
the arbitration agreement (including the arbitration clause) is invalid under the law to which the parties subjected this agreement, and in the absence of such indication, under the law of the country where the award was made.

In legal science, there is no common understanding of the question of the legal nature of the arbitration agreement, namely: whether it is an institution of substantive or procedural law. The issue is resolved differently in arbitration practice.

Thus, a Russian organization filed a claim against a Belgian company to recover the cost of the goods supplied. The International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation declared the contract concluded by the parties invalid due to violations of the requirements of USSR legislation on the procedure for signing foreign trade transactions. This raised questions about the validity of the arbitration clause contained in this contract. The court considered that the arbitration clause, by its legal nature, is different from a foreign trade transaction and is not subject to the procedure for signing foreign trade transactions. Moreover, the arbitration agreement (arbitration clause) is a procedural agreement, independent of the substantive contract in which it is included<23>.

<23>Quote by: Kabatov V. From the practice of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation // Economy and Law. 1994. N 3. S. 42 - 43.

It is difficult to agree with this conclusion. The fact that an arbitration clause is autonomous from the contract itself (which is enshrined in both international and national law of many states, including the Russian Federation) does not mean that it represents a procedural contract. Additional argumentation is needed here.

When studying this issue, from our point of view, attention should be paid to the fact that the arbitration agreement is subject to the law that the parties chose due to the autonomy of the will of the parties, and in its absence - to the law of the country where the decision was made<24>. And this is typical only for substantive contracts. Procedural relations do not allow this and are regulated only by the lex fori.

<24>See: pp. "a" clause 1 art. V New York Convention and paragraph 2 of Art. VI European Convention on Foreign Trade Arbitration.

In most cases, arbitration courts also consider the arbitration clause to be a substantive contract. For example, let us turn to the case of Banro American Resources, Inc. and Societe Aurifere du Kivu et du Maniema S.A.R.L. v. Democratic Republic of the Congo (Case No. ARB/98/7)<25>, which was considered by ICSID.

<25>[Electronic resource]: .

In August 1998, the American corporation Banro American Resources, Inc. (Banro American), created under the laws of the State of Delaware, appealed to ICSID, citing a violation by the Government of the Congo of the Convention on Subsoil Use concluded between the Canadian corporation Banro Resource Corporation (Banro Resource), created under the laws of the Province of Ontario, Societe Miniere et Indus-trielle du Kivu, S.A.R.L. (SOMIN KI), on the one hand, and the Government of the Congo, on the other hand. The convention concerned the creation in the Congo of the company Societe Aurifere du Kivu et du Maniema S.A.R.L. (SAKIMA) and contained a provision (in Article 35) on the transfer of disputes between parties to the Subsoil Use Convention to ICSID.

In July 1998, the Government of the Congo rescinded the decrees that had approved the Convention and provided for the creation of SAKIMA. In August 1998, the Canadian corporation Banro Resource sold its shares in SAKIMA to its subsidiary, Banro American.

In its decision, the arbitral tribunal noted that Canada, unlike the United States, is not a party to the Washington Convention. As a consequence, the provision of the Convention on the referral of a dispute to ICSID did not initially have legal force. Accordingly, ICSID does not have jurisdiction to consider this dispute. However, as follows from the decision, the arbitral tribunal allowed the possibility of “transfer of the arbitration clause” contained in the Convention along with the transfer of shares.

Another example from the arbitration practice of the Russian Federation. In 1996, an agreement was concluded between the Belgian and American companies for the assignment of the right of action, demand and debt, according to which the first company transferred to the second the right of claim to the Russian joint-stock company for the return of funds received by the latter from the Belgian company under a loan agreement. The loan agreement stipulated that all disputes and disagreements arising from it would be resolved through negotiations, and if the controversial issues were not resolved peacefully, in the arbitration institute at the Stockholm Chamber of Commerce in accordance with the rules of this arbitration institute.

An American company opened its representative office in Russia and filed a claim with the Arbitration Court of the Russian Federation against a Russian joint-stock company to collect debt on a loan issued by a Belgian company. When filing a claim with the Arbitration Court of the Russian Federation, the assignee believed that the arbitration clause as an agreement of the parties was an independent condition independent of the main agreement and was not of a substantive but of a procedural nature, and therefore could not be transferred to him under the assignment agreement.

However, the Arbitration Court concluded that filing a claim in defense of violated rights is one of the components of the content of the right of claim transferred to the new creditor, and maintaining the procedure for resolving disputes previously established by the parties does not infringe on the rights of the assignee and allows for proper protection of the interests of the debtor. Taking this into account, the Arbitration Court concluded that those mentioned in Art. 384 of the Civil Code of the Russian Federation, the conditions under which the rights of the original creditor are transferred to the new creditor may also include a condition for the election of a certain arbitration to resolve possible disputes between the parties to the agreement<26>.

<26>See: paragraph 15 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 1998 No. 29 “Review of judicial and arbitration practice in resolving disputes in cases involving foreign persons.”