ICSID 協約上 取消制度의 性格 및 取消事由에 관한 小考:明白한 越權 및 理由 未記載를 中心으로
A Study on the Annulment System's Features and Grounds in the ICSID Convention: Focusing on the ‘manifest excess of powers’ and ‘failure to state reasons’
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Since late 1990, arbitration on international investment dispute according to ICSID, seems to be very active. Article 52 of ICSID regulates on annulment of arbitration, which may function as relief step of error of arbitration, but may also harm the value of arbitration, which is being first and final solution of the disputes. Republic of Ecuador declared on annulment of ICSID treaty in 2009, which was established in the process of annulment of arbitration against M.C.I. Power Group, which will be studied in this paper. Reason claimed on annulment was obvious arrogation of rights regulated under proclamation b, and failure to state reasons under proclamation 3, among reasons classified under article 52, clause 1 of ICSID. However, committee on annulment interprets these reasons in very limited method. Furthermore, annulment of Article 53 of ICSID is different from an appeal. In another words, annulment is related to procedural legality than its accuracy in content, and the judgement becomes void and not corrected. In interpreting the reasons of annulment, the purpose of arbitration of ICSID should be considered, and should be determined in the way which links to the characteristics of annulment. If the combination of finality and accuracy is in the center of this problem, than the arbitration, result of annulment and interests of the related should be encountered as factor of solving this problem. For example, substances which causes significant effect should be included in the reasons of annulment. And in investigation on determining the existence of reasons for annulment, actual substance has to be the subject of investigation, thus differentiation between appeal and annulment is not clarified. Therefore, there is a demand to classify the reasons of annulment more specifically, to give predictability to contracting parties and other personnels.
Abstract
Since late 1990, arbitration on international investment dispute according to ICSID, seems to be very active. Article 52 of ICSID regulates on annulment of arbitration, which may function as relief step of error of arbitration, but may also harm the value of arbitration, which is being first and final solution of the disputes. Republic of Ecuador declared on annulment of ICSID treaty in 2009, which was established in the process of annulment of arbitration against M.C.I. Power Group, which will be studied in this paper. Reason claimed on annulment was obvious arrogation of rights regulated under proclamation b, and failure to state reasons under proclamation 3, among reasons classified under article 52, clause 1 of ICSID. However, committee on annulment interprets these reasons in very limited method. Furthermore, annulment of Article 53 of ICSID is different from an appeal. In another words, annulment is related to procedural legality than its accuracy in content, and the judgement becomes void and not corrected. In interpreting the reasons of annulment, the purpose of arbitration of ICSID should be considered, and should be determined in the way which links to the characteristics of annulment. If the combination of finality and accuracy is in the center of this problem, than the arbitration, result of annulment and interests of the related should be encountered as factor of solving this problem. For example, substances which causes significant effect should be included in the reasons of annulment. And in investigation on determining the existence of reasons for annulment, actual substance has to be the subject of investigation, thus differentiation between appeal and annulment is not clarified. Therefore, there is a demand to classify the reasons of annulment more specifically, to give predictability to contracting parties and other personnels.
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