Newsletter-21

217 ARBITRATION LAW states to consent, and being a contracting party to ICSID convention is not merely an offer: A separate declaration of consent is required for the contracting parties. Such point is clearly explained within the Preamble to the Convention as follows: “ No Contracting State shall, by the mere fact of its ratification, acceptance or approval of this Con- vention, and without its consent, be deemed to be under any obligation to submit any particular dispute to conciliation or arbitration. ” Consent through National Legislation of the Host State The host states may offer their consents to agree to investment arbitration with foreign investors through its legislation, especially legislation with regard to foreign investments. It may be stated within the legislation that disputes between the state and the foreign investor with regard to its investment will be settled through investment arbitra- tion. As explained above, the arbitration agreement will be perfected through the acceptance of the investor, and such acceptance may be provided merely by institution of arbitration proceedings. It should be noted that the text of the legislation regarding the offer of the host state should be carefully reviewed since each reference to investment arbitrations within the national legislation would not be deemed as an offer to arbitrate. For instance, if the national legislation only entitles the public authorities to execute arbitration agreements, this would not amount to a consent to jurisdiction of an investment arbitration, and would require a separate declaration of consent from the host state’s side. The Scope of the Consent and Its Interpretation As with commercial arbitration agreements, investment arbitration agreements that are concluded by either of the above-noted methods would require determination of its scope, and should be interpreted. The consent of the host state may be subject to certain conditions, time limits, formalities, or other restrictions. For instance, the scope of the consent to arbitrate under Article 1116 of the NAFTA is limited to claims arising from alleged breaches of the NAFTA, itself. Another Resolution No. 88/13325 of the Council of Ministers dated 07.10.1988, which is published in the Official Gazette dated 06.12.1988 and numbered 20011.