Andrea Marco Steingruber^*

(2012) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

Consent is considered the cornerstone of international arbitration. Yet in the last few years there has been an increasing discomfort with this deep-rooted assumption, with a discussion emerging. Scholars have spoken of the ‘dogma of consent’ or the ‘marginalization’ of it. The main reason for this is that arbitration has evolved and expanded. Multiparty situations involving complex jurisdictional issues are now quite common, and investment arbitration has experienced an exponential growth the last two decades. The article suggests that the consensual nature of arbitration should be looked at from different perspectives. These different perspectives should highlight that the consensual nature of international arbitration is a complex phenomenon and that the qualification of arbitration as a ‘consensual’ dispute resolution mechanism needs to be differentiated and reconciled with the jurisdictional side of arbitration.

Table of contents

• 1. The arbitration agreement
  • 1.1 Functions and effects of the arbitration agreement
  • 1.2 The changing understanding of the arbitration agreement
• 2. The definition perspective
  • 2.1 ‘Consensual’ as a criterion of arbitration’s qualification
  • 2.2 Expression of consent to arbitration and reaching of mutual consent to arbitrate
• 3. The evolution perspective
• 4. The structural perspective
  • 4.1 Commercial arbitration
  • 4.2 Investment arbitration
• 5. The validity perspective: reaching of mutual consent
  • 5.1 Commercial arbitration
  • 5.2 Investment arbitration
    • 5.2.1 Consent through direct agreement between the parties
    • 5.2.2 Consent through host State (national) investment legislation
    • 5.2.3 Consent through investment treaties
      • 5.2.3.1 Bilateral Investment Treaties (BITs)
      • 5.2.3.2 Multilateral investment treaties
• 6. The scope perspective
  • 6.1 Commercial arbitration
  • 6.2 Investment arbitration
    • 6.2.1 The limitations of the scope of consent
      • 6.2.1.1 In national investment legislations
      • 6.2.1.2 In the BITs
      • 6.2.1.3 In multilateral investment treaties
    • 6.2.2 Conditions of the ICSID Convention
      • 6.2.2.1 The foreign investor’s nationality
      • 6.2.2.2 Investment
      • 6.2.2.3 Consent
• 7. The enlargement perspective
  • 7.1 Commercial arbitration
  • 7.2 Investment arbitration
    • 7.2.1 Expansion ratione personae
    • 7.2.2 Expansion ratione materiae
    • 7.2.3 Expansion ratione temporis
    • 7.2.4 Expansion through umbrella and MFN clauses
      • 7.2.4.1 Umbrella clause
      • 7.2.4.2 Most-Favoured-Nation (MFN) clauses
• 8. The procedural needs perspective
  • 8.1 Commercial arbitration
  • 8.2 Investment arbitration
• 9. Conclusion
• BIBLIOGRAPHY

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