V
Jurisdiction of the Centre
22. The term "jurisdiction of the Centre" is used in the Convention
as a convenient expression to mean the limits within which the provisions
of the Convention will apply and the facilities of the Centre will be
available for conciliation and arbitration proceedings. The jurisdiction
of the Centre is dealt with in Chapter II of the Convention (Articles
25-27).
Consent
23. Consent of the parties is the cornerstone of the jurisdiction of
the Centre. Consent to jurisdiction must be in writing and once given
cannot be withdrawn unilaterally (Article 25(1)).
24. Consent of the parties must exist when the Centre is seized (Articles
28(3) and 36(3)) but the Convention does not otherwise specify the time
at which consent should be given. Consent may be given, for example, in
a clause included in an investment agreement, providing for the submission
to the Centre of future disputes arising out of that agreement, or in
a compromis regarding a dispute which has already arisen. Nor does
the Convention require that the consent of both parties be expressed in
a single instrument. Thus, a host State might in its investment promotion
legislation offer to submit disputes arising out of certain classes of
investments to the jurisdiction of the Centre, and the investor might
give his consent by accepting the offer in writing.
25. While consent of the parties is an essential prerequisite for the
jurisdiction of the Centre, consent alone will not suffice to bring a
dispute within its jurisdiction. In keeping with the purpose of the Convention,
the jurisdiction of the Centre is further limited by reference to the
nature of the dispute and the parties thereto.
Nature of the Dispute
26. Article 25(1) requires that the dispute must be a "legal dispute
arising directly out of an investment." The expression "legal
dispute" has been used to make clear that while conflicts of rights
are within the jurisdiction of the Centre, mere conflicts of interests
are not. The dispute must concern the existence or scope of a legal right
or obligation, or the nature or extent of the reparation to be made for
breach of a legal obligation.
27. No attempt was made to define the term "investment" given
the essential requirement of consent by the parties, and the mechanism
through which Contracting States can make known in advance, if they so
desire, the classes of disputes which they would or would not consider
submitting to the Centre (Article 25(4)).
Parties to the Dispute
28. For a dispute to be within the jurisdiction of the Centre one of
the parties must be a Contracting State (or a constituent subdivision
or agency of a Contracting State) and the other party must be a "national
of another Contracting State." The latter term as defined in paragraph
(2) of Article 25 covers both natural persons and juridical persons.
29. It should be noted that under clause (a) of Article 25(2) a natural
person who was a national of the State party to the dispute would not
be eligible to be a party in proceedings under the auspices of the Centre,
even if at the same time he had the nationality of another State. This
ineligibility is absolute and cannot be cured even if the State party
to the dispute had given its consent.
30. Clause (b) of Article 25(2), which deals with juridical persons,
is more flexible. A juridical person which had the nationality of the
State party to the dispute would be eligible to be a party to proceedings
under the auspices of the Centre if that State had agreed to treat it
as a national of another Contracting State because of foreign control.
Notifications by Contracting States
31. While no conciliation or arbitration proceedings could be brought
against a Contracting State without its consent and while no Contracting
State is under any obligation to give its consent to such proceedings,
it was nevertheless felt that adherence to the Convention might be interpreted
as holding out an expectation that Contracting States would give favorable
consideration to requests by investors for the submission of a dispute
to the Centre. It was pointed out in that connection that there might
be classes of investment disputes which governments would consider unsuitable
for submission to the Centre or which, under their own law, they were
not permitted to submit to the Centre. In order to avoid any risk of misunderstanding
on this score, Article 25(4) expressly permits Contracting States to make
known to the Centre in advance, if they so desire, the classes of disputes
which they would or would not consider submitting to the Centre. The provision
makes clear that a statement by a Contracting State that it would consider
submitting a certain class of dispute to the Centre would serve for purposes
of information only and would not constitute the consent required to give
the Centre jurisdiction. Of course, a statement excluding certain classes
of disputes from consideration would not constitute a reservation to the
Convention.
Arbitration as Exclusive Remedy
32. It may be presumed that when a State and an investor agree to have
recourse to arbitration, and do not reserve the right to have recourse
to other remedies or require the prior exhaustion of other remedies, the
intention of the parties is to have recourse to arbitration to the exclusion
of any other remedy. This rule of interpretation is embodied in the first
sentence of Article 26. In order to make clear that it was not intended
thereby to modify the rules of international law regarding the exhaustion
of local remedies, the second sentence explicitly recognizes the right
of a State to require the prior exhaustion of local remedies.
Claims by the Investor's State
33. When a host State consents to the submission of a dispute with an
investor to the Centre, thereby giving the investor direct access to an
international jurisdiction, the investor should not be in a position to
ask his State to espouse his case and that State should not be permitted
to do so. Accordingly, Article 27 expressly prohibits a Contracting State
from giving diplomatic protection, or bringing an international claim,
in respect of a dispute which one of its nationals and another Contracting
State have consented to submit, or have submitted, to arbitration under
the Convention, unless the State party to the dispute fails to honor the
award rendered in that dispute.
