Newsletter-21

216 NEWSLETTER 2016 ment, or stipulate an arbitration clause within the underlying contract. In such cases, it will be accepted that the parties have consented to arbitration, as well as the legal problems that may arise for arbitra- tion agreements with regard to commercial disputes may also arise in investment disputes, such as the scope of the agreement, capacity and authority of the parties, arbitrability, etc. For instance, if investment operations involve a complex scheme of successive agreements and the arbitration clause is not stipulated within all of the agreements, it may be discussed whether the arbitration clause is stipulated only for the specific agreement or to the whole of the investment. Consent through the BITs Consent through BITs has become accepted practice and is, in general, the basis for the jurisdiction of investment arbitration courts in the majority of cases. In such methods, the state parties to the BIT offer their consent to arbitration to the investors who are nationals of the other contracting party, and the agreement is perfected once the investor provides its acceptance. It is established practice that an investor may accept the offer by instituting arbitration proceedings as provided within the relevant BIT. In this instance, the result is an agreement to arbitrate although it is achieved indirectly and often without direct contact between the parties prior to the institution of proceedings. However, it should be underlined that all references to arbitration within the BITs do not constitute consent to arbitration and, in some cases, it is only a promise to consent in the future. Consent through Multilateral Treaties The states may provide their consent to investment arbitrations through multilateral treaties that provide investment arbitrations for the settlement of disputes between a contracting party and a national of another contracting party. For instance, Article 1122 of the NAFTA and Article 23(3)(a) of the Energy Charter Treaty provide offers of the contracting states to agree to arbitrate. It should be underlined that the ICSID Convention 1 does not provide the offer of the contracting 1 The Convention was ratified by Turkey on 27.05.1988 by Act No. 3460, which is published in the Official Gazette dated 02.06.1988 and numbered 19830, and with