Submission to ICSID in breach of the convention: disputes in international civil engineering contracts.

Abstract

The World Bank produces sample bidding documents for use by its member countries to prepare tender forms and contract conditions for Bankfinanced civil engineering construction contracts. The contract conditions provide for arbitration of disputes and parties to a contract may choose to submit to the International Centre for Settlement of Investment Disputes (ICSID) which was established by members of the World Bank for the settlement of investment disputes between states and nationals of other states. The objectives of the Thesis are to (i) examine the legality of generally submitting disputes in international civil engineering contracts to ICSID arbitration, (ii) provide an analysis of ICSID as an international arbitral institution and (iii) discuss the legal aspects of submission of disputes to ICSID arbitration in breach of the Convention that established ICSID. Chapters One, Two and Three are devoted to describing the importance of civil engineering works to economic growth and arbitration as a method of resolution of disputes. An analysis is made of the fundamentals and complexity of the arbitral process and the interfacing between legal systems, national laws and international law in international arbitrations. Chapter Four traces the genesis of ICSID and Chapter Five examines critically the salient features of ICSID arbitration, which according to the Thesis are not all exclusive to ICSID arbitration. Chapters Six and Seven analyse in depth ICSID jurisdiction ratione personae and ratione materiae. Chapter Eight argues that disputes in freestanding international civil engineering contracts are not investment disputes and that submission to ICSID is in breach of the Convention. Chapters Nine and Ten discuss the legitimate role of ICSID in developing rules of international economic law and conclude by recommending that ICSID should not detract from that role by becoming just another arbitral institution in. the business of arbitration.