FINANCIAL REGULATION ON ICSID CASES

Abstract

The goal of this paper is to examine a group of cases dealing with financial regulation and settled under the International Centre for the Settlement of Investment Disputes – ICSID. This will be achieved through a descriptive approach to the cases and of an analytical approach to the underlying regulatory issues. Part One brings an overview of the international state responsibility doctrine, as well as of the main features of financial regulation and of the ICSID system. Its purpose is to show how international elements influence both the substantive and the procedural aspects of these disputes. Part Two will present the facts and findings of several international investment arbitration tribunals. It will focus on the issues of financial regulation emerging in disputes between foreign investors and host countries. Part Three provides an analytical framework for the study of these cases. It draws from Ole Spiermann’s conceptualizations of the state within the context of international adjudication. It sets out how international investment arbitration embodies Ole Spiermann’s classification of international law of coexistence and of cooperation. Part Four delves into some specific fields of financial regulation and relates them to the general standard of fair and equitable treatment. This approach aims at exemplifying how financial regulation may present itself in these cases. Part Five brings a summary of the issues discussed, indicating some emerging trends, and the author’s concluding remarks.