A Study on the Validity and Other Issues of Arbitration Clause for ICSID Arbitration

ICSID 중재 이용을 위한 투자계약서상의 중재조항의 유효성과 추가쟁점

The purpose of this paper is to examine the validity or effectiveness of the Arbitration Clause such as Model Clause I, and to confirm how other issues such as arbitrable "investment", appointment of arbitrators and law governing the agreement be reflected in the agreement. However, the parties should be sure that the arbitration clause is valid if they have checked whether, for their particular situation, the ICSID Centre has jurisdiction. For the validity of the Arbitration Clause, first the host country and the country which the investor belong to must be "contracting states" to the ICSID Convention. Second, the specific consent to arbitrate must be expressed in writing in the investment contract or in a national investment law or in an investment protection treaty. The issue of "nationality" of an other contracting state is determined by the place of incorporation or the location of the head office. In case the parties have doubts about a valid consent to arbitrate, Art. 41 of the ICSID Convention provides, regarding ICSID jurisdiction, that the tribunal shall be the judge of its own competence. It follows that ICSID Arbitration has an autonomous and exclusive character. As a consequence, domestic courts may not interfere with the question of ICSID's jurisdiction, which is called as "rule of abstention".