As far as these ‘tools’ are concerned, there are a number of investment protection treaties, most of which are bilateral treaties. There are also regional agreements that offer specifically Islamic and Arabic solutions. Of note, and the main focus of the article, are the following regional agreements: the Agreement on Promotion, Protection and Guarantee of Investments amongst the Member States of the Organisation of the Islamic Conference (the OIC Agreement) (I) and the Unified Agreement for the Investment of Arab Capital in the Arab States (the Unified Agreement) (II). Although dating from the 1980s, these tools continue to provide protection to investors in a region that is notorious for its periods of instability.
The article analyses both agreements, and the protection offered to investors within each, notably in light of a recent arbitral tribunal award in al-Warraq v. Indonesia, where the applicable investment treaty was the OIC Agreement. Through an analysis of the above-mentioned agreements, it can be said that the OIC Agreement and the Unified Agreement offer a series of procedural and substantive protections that may prove more beneficial than traditional bilateral investment treaties. However, investors need to be familiar with certain particularities of these instruments.
I. The OIC Agreement
The ambit of this agreement was brought to the forefront in the recent al-Warraq v. Indonesia arbitration. The decision of the arbitral tribunal has offered some insight into the protection afforded to investors by the OIC Agreement.
On the subject of the OIC Agreement, the article deals with the two following headings:
a. Interpreting the use of international arbitration
b. The protection granted by the OIC Agreement
(a) Interpreting the use of international arbitration
The decision provides some guidance relating to the use of international arbitration with regard to the OIC Agreement, notably:
i. The direct access to arbitrate against the host State that is open to investors
ii. The broad concept of ‘investor’ that has been drawn from the OIC Agreement
(i) Direct access of the investor to arbitration against the host State
There has been a discussion as to whether Article 17 of the OIC Agreement amounts to an arbitration agreement. It was held implicitly by the Arbitral Tribunal in al-Warraq that article 17 of the OIC Agreement does indeed offer investors a direct right of recourse to arbitrage against a State Party.
There exist no prerequisites to this right of recourse. The OIC Agreement contains a bifurcation clause, and as such, the exhaustion of domestic remedies before being able to arbitrate is not required. It is also of note that initiation of arbitration proceedings is not subject to the obligation to attempt conciliation.
The Tribunal went on to consider that, in conformity with the rules on treaty interpretation of Article 31 of the Vienna Convention, the language of Article 17 can be accepted by an investor without any separate agreement to arbitrate by the State party.
(ii) Broad concept of ‘investor’
The OIC Agreement provides the following definition of an investor:
“the Government of one of the Contracting Parties or any natural or legal person belonging to a Contracting Party and having capital invested in the territory of another Contracting Party” (Article 1.6)
This reference to a public body is not unheard of in investment law; however, it is severely limited by the prerogatives of public authorities.
Article 1.6 states that physical persons must have the nationality of a Contracting State in order to qualify as an investor under the OIC Agreement, whereas legal entities are not subject to such a requirement; they must simply be established in conformity with the laws of a Contracting State. The above mentioned case dealt with a physical person, and as such no light was unfortunately shone upon this particular topic. However, it is interesting to note the contrast with international law, whereby even legal entities are affiliated with the notion of nationality (see the Barcelona Traction case).
Be that as it may, the award on jurisdiction in the al-Warraq case has significantly opened up access to international arbitration, making the OIC Agreement a complete instrument that provides for both clear dispute resolution mechanisms and investment protection provisions.
(b) Investments protection granted by the OIC Agreement
The protection granted by the OIC Agreement can be surmised from the following headings:
i) A protection for direct and indirect investments
ii) A lack of a fair and equitable treatment clause
iii) Obligations borne by the investor
iv) Extended protection against expropriation
(i) Protection of direct and indirect investments
Given that the OIC Agreement adopts a general definition of what constitutes an investment, the arbitral tribunal in al-Warraq held that both direct and indirect investments must be covered. This is not particularly exceptional; however, through the application of al-Warraq, it is clear that the protection afforded by the OIC Agreement has been extended to a wider range of economic operations.
(ii) Lack of a fair and equitable treatment clause
A particular feature of the OIC Agreement is that it does not contain a fair and equitable treatment clause. This noticeable absence must be borne in mind by investors.
That being said, this void can most often be filled by a most-favoured-nation clause, one of which is contained in the OIC Agreement.
By virtue of this clause, an investor may essentially ‘import’ a fair and equitable treatment clause from another treaty signed by the Contracting State, on the condition that the other treaty to which the investor refers relates to the same object.
In al-Warraq, the arbitral tribunal held that there were several BITs that Indonesia had signed and that contained fair and equitable treatment clauses.
Furthermore, the tribunal held that the definition of the standard of fair and equitable treatment must be observed through the prism of the 1966 International Covenant on Civil and Political Rights (ICCPR), which, although emblematic of human rights law, cannot be ‘restricted’ to this specific field and may apply to investment law:
“The State Party undertakes to ensure that it does not cause any harm to the individual. It is the failure to honor this obligation that amounts to a violation of the principle of good faith. And the role of the Civil Society - a role played by international arbitral tribunals - is to keep the state in mind, and if the State has failed to do so, to so declare in its arbitral award.”
Thus, the Arbitral Tribunal not only considered that the ICCPR was applicable in the field of investment law for assessing the fair and equitable treatment of the host State’s treatment of the investor, but that the host state had to report any breach of the principle of good faith, due to a violation of the obligations of the ICCPR.
(iii) Obligations borne by the investor
The general rule that an investor involved in serious breaches of domestic law cannot rely on the protections afforded by investment protection instruments is not new by any means. However, the OIC Agreement differs from conventional investment treaties in that it contains provisions that explicitly impose obligations on the investor.
Article 9 of the Agreement states that:
“The investor agrees to respect the laws and regulations in force in the Host Country and shall abstain from anything that is likely to disturb public order and morality and to undermine the public interest. It should also refrain from engaging in restrictive activities or making gains by illicit means.”
Unfortunately, neither ‘public order’, nor ‘morality’ is defined by the OIC Agreement; therefore, we must refer to domestic law.
This particular article was brought to the forefront in the al-Warraq case as the claimant was accused of having certain bank irregularities. It was held by the arbitral tribunal that the host state has committed a flagrant denial of justice. However, the Claimant was prevented from pursuing his claim for fair and equitable treatment, as he had not come with ‘clean hands’.
(iv) Extended protection against expropriation
Article 10 of the OIC Agreement provides relatively broad protection against expropriation. However, in al-Warraq, Indonesia's intervention had not had the effect of expropriating the investor of his investment.
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