Part II The Jurisprudence on Corruption in International Investment Arbitration: Case and Trend Analysis, 5 The Scope of Inquiry: Treaty vs. Contract 'Investment Arbitration'

Subject(s):

Corruption — Investor — Definition of investment — NAFTA (North American Free Trade Agreement) — Investment ‘in accordance with host state law’ — UNCITRAL Arbitration Rules — BITs (Bilateral Investment Treaties)

This chapter analyzes the nature of international investment arbitration and how that modality of dispute settlement differs from international commercial arbitration. The most obvious difference between investment and commercial arbitration is the nature of the parties' consent to arbitrate. In contract-based commercial arbitration, consent is expressed in a mutual, largely contemporaneous exchange of promises to bring a present or future dispute to arbitration. But in investment treaty arbitration, the host State's consent is usually expressed as an open offer of arbitration for all nationals of the counterparty State to the investment treaty. Investment arbitration proceedings also operate at high levels of transparency relative to commercial arbitration.