Masters Theses

Date of Award

5-2011

Degree Type

Thesis

Degree Name

Master of Arts

Major

Political Science

Major Professor

Wonjae Hwang

Committee Members

Brandon C. Prins, David J. Brule

Abstract

Can international institutions work independently from the great powers in terms of autonomy and independence? To answer the question, this thesis analyzes 197 concluded arbitration cases and the Convention of the International Centre for Settlement of Investment Disputes (ICSID). But why the ICSID? Trade liberalization has long been sought by almost all the countries under multilateralism represented by the GATT and its successor, the WTO. However, due mainly to slow and laborious decision making, proceedings for dispute settlement and acquiring mandatory consent from all the member countries under the WTO, states -especially great economic powers - began to turn to Free Trade Agreements(FTAs) to
avoid such problems. Most of the FTAs include Bilateral Investment Treaties and investment dispute settlement provisions. When investment disputes arise, the parties can resolve them bilaterally or they may bring their cases to an international dispute settlement institution. The ICSID is one of leading dispute settlement institutions in the field of international investments. Since the late 1990s, the cases argued at and the references to the ICSID began to increase sharply indicating that states have begun to perceive the ICSID as more important. So I analyzed the ICSID in terms of its autonomy and independence. The findings are as follows.
Throughout the Articles of the ICSID Convention, the ICSID endeavors to keep its autonomy and independence. Although there are more arbitrators from developing countries than developed countries in the arbitration panel, developed country arbitrators have been selected more frequently as members of arbitration Tribunals of the ICSID. But the compositions of the Tribunals do not affect the winning rate especially for
developed country in the arbitrations. Although the durations of the arbitration proceedings vary in each party category, developing countries tend to show their lack of legal capacities and monetary shortage, especially needed for the due process procedures in arbitrations. As for compliance to ICSID awards, almost all the Contracting States
followed the awards except for some cases, especially Argentine ones. In general, the ICSID has maintained its autonomy and independence though there also is some evidence and some cases where this argument is not supported. As
more pending cases turn to concluded ones, there will be more cases available for further
research on the ICSID.

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