ICSID Arbitration, the Law and Psychology ICSID Arbitration On 14 October 1966, the Washington Convention 1965 came into force. The Convention created the International Centre for the Settlement of Investment Disputes (ICSID). On 14 February, 1986, the Republic of Ecuador became a party to the Washington Convention. On 15 January 2007, Rafael Correa was sworn in as President of Ecuador. By the end of 2008, 13 ICSID cases had been registered against Ecuador. On 20 October 2008, Ecuador introduced its new Constitution preventing the Republic from being party to any treaty by which its sovereignty is delegated to an international arbitral tribunal. On 6 July 2009, The World Bank received notice from Ecuador of its withdrawal from (ie. denunciation of) the Washington Convention. On 5 October 2012, an ICSID tribunal rendered its Award against the Republic for $ 1.77bn. On 11 October, Ecuador filed for annulment, and on 18 January 2013, the annulment panel was constituted. The case is Occidental Petroleum v The Republic of Ecuador (ICSID Case No. ARB/06/11). ICSID arbitration arises out of foreign direct investment (FDI) disputes. FDI is the contribution by foreign investors of very significant amounts of value into the infrastructure of sovereign host States by way of investment. The current majority view is that where a host State takes a direct investment away from a foreigner or harms the investment, the host State must pay adequate compensation promptly and effectively. And this is the case even though a national of the same host State would not be entitled to compensation. The Washington Convention created a procedurally delocalised arbitration forum within which one party to an investment dispute can sue the other party to the investment dispute. A tribunal of arbitrators is appointed to adjudicate the dispute and to render a legally binding Award which puts an end to the investment dispute. At a high level of abstraction, there is a structural similarity between FDI dispute groups comprising not only the parties and the tribunal, but also stakeholders. Investors are, for the most part, companies which are led by directors: agents and leaders of the investor company. Host States are also led by agents, namely, politicians in government. Tribunals are composed of arbitrators having appropriate backgrounds and experience. Stakeholders enjoy, or suffer from the results of the decisions taken by their agent-leaders; and those agent-leaders can (subject to the democratic arrangement of the group) retain or lose power as directors or members of governments depending upon what they deliver to their stakeholders. In the context of Washington Convention arbitration, agent-leaders deliver to their stakeholders an ICSID Award. Like any adjudication, ICSID arbitration is, broadly speaking, win-lose. As already noted, a host State can lose heavily in ICSID arbitration if it has to pay compensation. But the investor can also lose heavily if it fails to secure compensation for the loss or damage to its investment. The economic and other risks can be enormous. A large Award against a host State - as in the Occidental Petroleum arbitration - can be characterised as amounting to an injustice against the stakeholders. And this injustice can be portrayed as the fault of one or more of: the agent-leader of the aggrieved party; the other party to the investment dispute; the ICSID arbitrators; and ‘outsiders’, for example, foreign governments, either in general or specifically (such as the government of the home State of the investor). In the case of host States, social injustice caused by foreigners (either the foreign investor or its home State, or both of them) can be used to the advantage of the agent-leader: the agent-leader can be portrayed as one of the people for whom he or she is seeking justice against outsiders. So, the social justice of ICSID Awards is one of several important issues when considering the impact of ICSID arbitration. The main interest here is the impact of ICSID Awards on the agent-leaders and stakeholders of Ecuador as host State. Law and psychology Prior to the Washington Convention, there was no suitable legal forum in which a non-sovereign and a sovereign could have FDI disputes between them resolved. One solution was for the foreigner to rely on its home State government: diplomatic negotiations would follow, and compensation (if any) would be paid by the host State to the home State. What emerged from these diplomatic exchanges was customary international law about a foreigner’s property and person whilst in the host State. From this position, customary international law developed to the point where the current majority view is that direct investment by a foreigner is entitled to the same legal protection from the host State. However, the exact nature of the law applicable in ICSID arbitration is not necessarily clear. Adjudicating the merits of a dispute can give rise to a parallel dispute about the adjudication process itself: the tribunal must adjudicate these issues too. For example, one area of dispute is the identity of the law which is applicable to the merits of the FDI dispute and, once identified, what its content is. Another set of issues concerns the facts: what facts are to be used in order to reach a decision on the merits according to the law, and what facts, if any, can be used to justify the decision on grounds other than the merits. Another frequent parallel dispute concerns the tribunal’s own jurisdiction. For example, the denunciation of the Washington Convention can give rise to the issue of when it takes effect for the purpose of the jurisdiction of ICSID tribunals. The Washington Convention avoids the need for diplomatic intervention where the host State and the home State are bound by the Convention: the process has moved from diplomatic negotiation to adjudication. But, at a high level of abstraction, the host State and its agent-leader, the investor company and its agent-leader, and the stakeholders are unchanged. And the payment of compensation by the host State can be the same remedy in both processes. However, the criteria used for determining liability and quantum might be very different between diplomatic negotiation and adjudication. And the public availability of ICSID Awards through the media will have an impact on stakeholders which would not normally exist with the confidential nature of diplomacy. To add to the difficulties for arbitration tribunals, the international law which is applicable to FDI disputes is in the process of evolving from its public international law roots into (public) international investment law. Amongst other responsibilities, an arbitration tribunal should comply with the mandate from the parties and with the law, and should produce an Award which resolves the merits of the dispute and which is capable of being enforced. The Convention requires that ICSID tribunals should provide reasons for their decisions on the merits, and Pierre Lalive refers to “the exceptional duties and responsibilities” of international arbitrators (On the Reasoning of International Arbitral Awards, 2010). And FDI tribunals should demonstrate how they have identified the content of international investment law. To what extent should the content of international investment law include an element which reflects social justice as well as economic justice? If the content of international investment law is not evolving in this direction, should ICSID Awards provide reasons which not only justify the decision in light of the applicable law but also give reasons in relation to wider issues of social justice which do not form part of the law? In either case, one rationale would be to prevent agent-leaders manipulating ICSID Awards for personal advantage: Awards would be addressed to stakeholders not to the intermediary agent-leaders. Stakeholders would learn of Awards through the national media, and the media would be convinced of the justice of Awards. When an ICSID tribunal is deliberating its decision and writing up its Award, should the profiles of the agent-leaders and the stakeholders be taken into account in the contexts of compliance with Awards and denunciation of the Convention? If so, do ICSID tribunals need outside help in doing so; and, if so, who should help, and how? Is there a role for psychology in the deliberations leading to, and the writing up of ICSID Awards? Is there a sufficient channel of communication between psychologists and arbitrators whereby the latter can interpret and apply what psychology has to offer? The presentation will be made against the background of the relationship between Ecuador and the Washington Convention and of the Occidental Award. Although that background points only to economics, politics, and law, the presentation will attempt, at a very elementary level, to justify the approach that there is a role for psychology alongside those other disciplines in relation to ICSID arbitration and the impact of ICSID Awards. In doing so, points to be considered (from a lawyer’s perspective) include agent-leaders, social justice, economic justice, international investment law, the relationship between law and science, profiling of arbitrators and others, media reporting, and whether therapeutic jurisprudence can assist ICSID arbitration. Richard Earle May 2013