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International law as the basis for extending arbitration agreements concluded by States or State Entities to non-signatories

International law as the basis for extending arbitration agreements concluded by States or State Entities to non-signatories
International law as the basis for extending arbitration agreements concluded by States or State Entities to non-signatories
This article explores the role of international law in relation to the extension of arbitration agreements contained in contracts concluded by States (or State entities) with non-signatory State entities (or States). As contract-based arbitrations involving States or State entities are on the rise, identifying the legal framework governing which parties are covered by the relevant arbitration agreements is of practical importance. The analysis demonstrates that international law forms part of the relevant law, alongside other applicable laws including law of contract, law of the seat and transnational law, concerning the extension of arbitration agreements concluded by States or State entities to non-signatories. Previous analyses have neglected the role of international law by not distinguishing contract-based arbitrations involving private parties from contract-based arbitrations involving States or State entities. Public international law recognises that arbitration agreements can be extended to non-signatories on the basis of implied consent, or abuse of separate legal personality and estoppel. Therefore, foreign investors can rely on international law to extend arbitration agreements to non-signatories in arbitrations conducted under investment contracts concluded by States or State entities, even if the relevant domestic law is agnostic or hostile to this. This has significant legal, and practical, importance.
Comparative law, International arbitration, Investment law, Public international law, State contracts
0020-5893
183 - 209
Risvas, Michail
bf254cb5-d488-41bf-ab4c-9db124e7850c
Risvas, Michail
bf254cb5-d488-41bf-ab4c-9db124e7850c

Risvas, Michail (2022) International law as the basis for extending arbitration agreements concluded by States or State Entities to non-signatories. International and Comparative Law Quarterly, 71 (1), 183 - 209. (doi:10.1017/S0020589321000476).

Record type: Article

Abstract

This article explores the role of international law in relation to the extension of arbitration agreements contained in contracts concluded by States (or State entities) with non-signatory State entities (or States). As contract-based arbitrations involving States or State entities are on the rise, identifying the legal framework governing which parties are covered by the relevant arbitration agreements is of practical importance. The analysis demonstrates that international law forms part of the relevant law, alongside other applicable laws including law of contract, law of the seat and transnational law, concerning the extension of arbitration agreements concluded by States or State entities to non-signatories. Previous analyses have neglected the role of international law by not distinguishing contract-based arbitrations involving private parties from contract-based arbitrations involving States or State entities. Public international law recognises that arbitration agreements can be extended to non-signatories on the basis of implied consent, or abuse of separate legal personality and estoppel. Therefore, foreign investors can rely on international law to extend arbitration agreements to non-signatories in arbitrations conducted under investment contracts concluded by States or State entities, even if the relevant domestic law is agnostic or hostile to this. This has significant legal, and practical, importance.

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20210725 ICLQ Paper (v 2) - Accepted Manuscript
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Accepted/In Press date: 20 September 2021
e-pub ahead of print date: 28 January 2022
Published date: January 2022
Additional Information: Funding Information: The author is grateful to Dr Michail Dekastros, Dr Berk Demirkol, Dr Marco de Benito, Mr Alexey Vyalkov, and Dr Harry Annison for their input, as well as to the ICLQ editors and peer reviewers. Any errors or omissions are the author's sole responsibility. Part of the research leading to this article has received funding from the European Research Council (ERC) under ERC Grant Agreement No 313355, as part of the research project on ‘Transnational Private-Public Arbitration as Global Regulatory Governance: Charting and Codifying the Lex Mercatoria Publica’ (LexMercPub) carried out at the University of Amsterdam. Publisher Copyright: Copyright © The Author(s), 2022. Published by Cambridge University Press for the British Institute of International and Comparative Law.
Keywords: Comparative law, International arbitration, Investment law, Public international law, State contracts

Identifiers

Local EPrints ID: 451841
URI: http://eprints.soton.ac.uk/id/eprint/451841
ISSN: 0020-5893
PURE UUID: d8edc41e-f734-491c-abe4-321e1de5009d

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Date deposited: 01 Nov 2021 17:30
Last modified: 24 Sep 2022 04:01

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