The Impact of the Host State law and the domestic courts intervention on the arbitration awards in investor-state dispute: case study Jordan

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ACKNOWLEDGEMENT

I would take this opportunity to thank my research supervisor, family and friends for their support and guidance without which this research would not have been possible.

DECLARATION

I, [type your full first names and surname here], declare that the contents of this dissertation/thesis represent my own unaided work, and that the dissertation/thesis has not previously been submitted for academic examination towards any qualification. Furthermore, it represents my own opinions and not necessarily those of the University.

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TABLE OF CONTENTS

ACKNOWLEDGEMENTII

DECLARATIONIII

CHAPTER 1: INTRODUCTION TO THE CONCEPT OF ARBITRATION1

Background of the Research1

Problem Statement2

Aims and objectives3

Research Questions4

An Overview on Arbitration4

Consensual5

Choosing the Arbitrator or Arbitrators5

Arbitration is neutral5

Arbitration is a confidential procedure6

Commercial Arbitration6

Two Views of Commercial Arbitration7

Recent Developments in International Commercial Arbitration8

Scope of the Arbitration Agreement8

Research Methodology9

Introduction9

Research Method10

Rationale For A Qualitative Study10

Case Study Method10

Data Analysis11

Secondary Data11

Possible Limitations Of The Study12

CHAPTER 2: DOMESTIC COURTS AND ARBITRATION, JORDAN14

Domestic Courts in Jordan14

Reasonable Attempt in Domestic Courts15

Support by Domestic Courts in Investment Arbitration15

An Examination Of The Process Of Arbitration In Jordan16

Arbitration Agreement17

The First Condition: The Eligibility of Parties To The Arbitration Agreement18

The Second Condition Is Satisfied Between the Parties To The Arbitration20

The Third Condition: The Place of the Arbitration Agreement20

The Formal Requirements21

Writing requirement:21

An assignment clause:21

Secondly / the implications of the arbitration agreement:22

CHAPTER 3: ARBITRATION AWARDS AND INVESTOR-STATE DISPUTE23

An overview of the Investor-state disputes23

Investor-State disputes in Jordan24

Jordanian Arbitration Law26

Available options26

Solution to challenges of investor-state arbitration28

Controlling the scope of the investor-state arbitration29

Liberal application of the interpretation rules under public international law in investment treaty arbitrations31

Investor-state Dispute Resolution31

The No-Restriction Presumption Principle and Required Path to Determine Meanings Of Ambiguous Treaty Terms34

The Arbitration Award and Post-Award Procedures in Jordan38

END NOTES41

CHAPTER 1: INTRODUCTION TO THE CONCEPT OF ARBITRATION

Background of the Research

One of the main purposes of investment arbitration is to avoid the use of domestic courts. From the investor's perspective, domestic courts are not an attractive forum for the settlement of their disputes with the host State. Rightly or wrongly, the investor will fear partiality from the courts of the State against which it wishes to pursue its claim. In many countries, there is no independent judiciary. Executive intervention in court proceedings is often normal. Even if there is no intervention, a sense of judicial loyalty to the State is likely to influence the outcome of proceedings especially where large amounts of money are involved. In addition, in many countries domestic courts are bound to apply the local law even if it is at odds with international legal rules protecting the rights of investors.

Even if the investor succeeds in proceedings before domestic courts, the executive may choose to ignore the verdicts of the judiciary. The courts of the investor's home country and of third States are usually not a viable alternative. In most cases, they lack territorial jurisdiction over investments taking place in another State. An additional obstacle to using domestic courts outside the host State would be State ...