Due to the big economic development that
\nthe world witnessed in the second half of
\nthe Twentieth Century and early current
\ncentury, the countries, on the top of which the
\ndeveloping countries, hastened to encourage
\nthe flow of foreign capitals to them to tackle
\ntheir economic problems and upgrade the
\nlevel of the individual\u2019s income through
\nremoving all the barriers and obstacles that
\ncan hinder their arrival, and provide all the
\nincentives and temptations, and create the
\nsuitable and adequate investment climate for
\ntheir flow.
\nFurthermore, by encouraging the foreign
\ninvestments, these countries will get use of
\nthe different modern scientific means, due to
\nthe fact that investment brings to the receiving
\neconomy sources that cannot be circulated
\ncommercially in the markets, but in an
\nimperfect way, especially the technology, and
\nmethods of getting use of it, administrative
\nexpertise, skilled workers, accessing to
\nDr Anas Bao<\/p>\n
the international production networks, and
\npenetrating the major markets and the
\nnames of the trademarks. These assets can
\nplay an important role in modernizing the
\nnational economy, and accelerating the pace
\nof economic growth.
\nIn addition to that, investment contributes in
\ndeveloping the infrastructure in the developing
\ncountries, such as telecommunications,
\nroads, and airports. It contributes in training
\nthe domestic manpower, and in growing and
\ndeveloping different industries that the state
\nneeds.
\nTherefore, most of the developing countries,
\nacknowledging in the importance of the role
\nthat investment plays, were keen to provide
\nsuitable and encouraging circumstances for
\ninvestment in their territories. Currently, the
\ndeveloping countries are competing among
\neach other for attracting foreign investors
\nto them through granting them a package of
\nexemptions, merits and guarantees.
\nThere are many matters that affect in directing
\nthe investments towards a certain country. It
\nis no doubt that the most important of them
\nis to convince the investor and gaining his
\ntrust in the state that he chooses to invest
\nin. This convention and trust do not generate
\nfrom none, but rather from a comprehensive
\ndeliberate look to the political, economic,
\nsocial, demographic, and climatic conditions
\nand others in the country that he is thinking
\nto invest in. Therefore, it was necessary to
\nelaborate the mechanisms necessary for
\nachieving that. The most important of which
\nis introducing tranquility to the selves of the
\nmoney holders and companies to motivate
\nthem to deal with it and invest in it.<\/p>\n
Due to the fact that invoking dispute about
\ninvestment with the state or one of its bodies
\nis considered of the probable matters for
\nany investor, whether local or foreign, it is
\nnecessary to take precautionary steps for
\nfacing such dispute in case it is arisen, and
\nguarantee providing neutral and effective
\nmeans for settling the disputes that can
\nbe entailed on the investment agreements
\nin proportion with their special nature, in
\naccordance with their importance to their
\nparties, whether for the state or one of its
\npublic bodies or the investment contracted
\nwith it.
\nDue to the fact that the ordinary litigation
\nsystems in the countries that host investment
\ndo not fulfil the desired need, as related
\nto quick separation in the disputes arisen
\nfrom executing the contracts and holders
\nof rights receive their rights in a short time,
\nnot to mention lack of responsiveness of
\nsuch systems with the requirements of the
\ninternational trade and investment, it was
\nnecessary to search for an independent,
\nneutral, effective and quick means to fulfil
\nthese needs.
\nIt is no doubt that arbitration, \u201cwhich is
\ndefined as a special means for litigation
\nbased on an agreement through which the
\nparties entrust a person or several persons
\nthe mission of settling the disputes related
\nto them through issuing a binding award
\nenjoying the pretext of the judged matter\u201d is
\nnow considered the basic and only means for
\nsettling disputes of investment to the extent
\nthat some people consider it an evitable
\nmatter related to these disputes, and that it
\nbecame the normal judgment in this field,
\ndue to what arbitration is characterized in
\nby achieving equality among the parties
\nof tis disputes and the independency of its
\nprocedures and the condition of arbitration
\nfrom the investment contract itself, and from
\nits destiny, not to mention that it provides the
\nforeign investor with a neutral body, that he
\nis in bad need for it due to the weakness of
\nhis legal position against the country in which
\nthe investment is existed.<\/p>\n
The importance of arbitration is emphasized
\nafter enacting the investment laws in many of
\nthe Third World Countries. These countries
\nwere keen to include in these laws a set of
\nmerits and guarantees that guarantee to
\nencourage and attract foreign investments,
\nincluding exiting the investment disputes
\nfrom the competency of their courts, and
\ngiving the authority to arbitration to examine
\nthem. The deduction of these laws indicates
\nto a general trend that almost becomes a
\ncommon phenomenon, which is adopting
\narbitration system as a procedure in which
\nall the disputes of the hosting country with
\nthe foreign investors are settled.
\nDue to the increased importance of arbitration
\nand its effective role in settling investment
\ndisputes, it gained the interest of the
\ndifferent countries of the world, of which the
\nGulf Cooperation Council Countries (GCCC).
\nThus, they concluded several international
\nagreements and protocols for it, and created
\nlots of permanent arbitration centers of local
\nand international character, acting by the
\ndictum: \u201cWherever there is investment, there
\nis arbitration\u201d.
\nFrom what is mentioned earlier, it is clear
\nthat there is no doubt that there is a kind
\nof concomitance or reaction between
\narbitration and investment. It is also no doubt
\nthat the holders of capitals, who search for
\ninvestment, whether they were national or
\nforeigners, became more inclined to subject
\ntheir contracts to arbitration, in case dispute
\naroused. This is due to several reasons, some
\nof which are related to what arbitration enjoys
\nof merits that suit the nature of investment
\ndisputes (First). Some of them are relate to the
\nfears of the foreign investors to resort to the
\njustice of the country that hosts investment
\n(Second). Others are related to the fact that
\narbitration is a judicial guarantee because
\nit is one of the means of attracting foreign
\ninvestment and one of its non-commercial
\nguarantees (Third).<\/p>\n
Investment contracts are characterized by
\na special nature resulting from the nature of
\nthe parties of these contracts: the state on
\nthe one hand and the foreign investor on the
\nother, and the process subject of the contract.
\nThe contract is related to a huge project that
\ntakes several years to be executed and costs
\nhundreds of millions of US Dollars, and the
\nrelations resulting from it are intermingled.
\nIt requires high technical experiences. With
\nthis specificity, arbitration, with what it enjoys
\nof merits, represents the natural justice for
\nsettling the disputes of these contracts. These
\nmerits are represented in the following:
\nQuickness in Procedures: Arbitration is
\ncharacterized by quick procedures required
\nfor separating the dispute the shortest time
\npossible, due to the fact that the procedures
\nof arbitration leads to save lots of time.
\nThat quickness is usually not available in
\nthe traditional judicial systems that are
\nrestricted by the legal texts that hinder quick
\nseparation in the dispute. This is what the
\nseparation needs in the disputes of investment
\ncontracts, where there are investments and
\nbig and frozen amounts of money pending
\nthe issuance of the justice judgment.
\nConsequently, there will be achieved loss as
\na result of delaying such amounts that wait
\nfor the separation in the disputes thereof. The
\nparties in the investment contracts prefer to
\nresort to arbitration due to what it offers of
\nquick justice. Quick justice that arbitration
\noffers is due to two factors:
\nThe first is obliging the arbitrator to separate
\nthe disputed presented to him within a certain
\nperiod of time assigned to him by the parties
\nas a general principle. The arbitration laws,
\nbylaws and authentications usually assign
\na period of time that the arbitrator shall not
\nexceed when issuing his decision, but it also
\nallows to the parties to amend in this period
\nwhen they agree on arbitration. The arbitrator
\nshall lose his capacity after finishing it.
\nFirst: Merits of Arbitration are suitable
\nwith the nature of the investment
\ncontracts disputes:<\/p>\n
Arbitration is characterized by quick
\nprocedures required for separating the
\ndispute the shortest time possible<\/p>\n
Private Air Building
\nThe air zone also contains a private air building
\nthat provides its services to business travelers
\nand VIPs, and it contains a free Dubai market, as
\nwell as luxurious halls for VIP travelers. It will
\nalso contain 15 thousand trips per year by 2020.
\nIt was opened last December, and is considered
\nthe biggest private air building.<\/p>\n
The Second Factor is related to the fact that
\narbitration is a system for litigation from one
\ndegree. The judgment issue by the arbitrator
\nenjoys the Res judicats of the judged case.
\nIt cannot be appealed by any of the ordinary
\nappealing methods, along with the possibility
\nof launching the legal action of nullity related
\nto it, and for the reasons mentioned in the
\nlaw restrictively, along with observing the
\nfact that appealing by nullity shall not stop
\nthe execution of the arbitration award as a
\ngeneral principle.
\nConfidentiality of Arbitration: This is
\nanother merit of arbitration, which is not less
\nimportance than the quickness, if not more
\nimportance, especially in the field of trade and
\ninvestment. The main reason for the parties
\nto choose arbitration as a means for settling
\nthe dispute is due to what it is characterized
\nby confidentiality. The unpublicized arbitration
\nhearings, and declining to publish the awards
\nare considered of the greatest merits of
\narbitration. The secrets related to the
\ncontract and the inventions remain secret.
\nThe parties in the investment contract do not
\nwant to know the disputes arisen between
\nthem, their reasons and motivations, due
\nto what such a knowledge may touch their
\nfinancial or economical positions.
\nFreedom of the Parties in the Shadow of
\nArbitration: The flexibility of arbitration
\nallows to the litigants to form it in the way
\nsuitable to them, because it gets away from
\nthe solid molds. First, the parties have the
\nchoice to choose the type of arbitration. They
\nmay choose, either the arbitration to be ad
\nhoc or institutional arbitration. They may also
\nchoose whether the arbitration to be special
\nor institutional, or that this arbitration
\nto be arbitration by law or reconciliation.
\nArbitration gives the way before the
\nwill of the parties in choosing the place of
\nconvening arbitration and its time, and the
\nlaw that the arbitrator apply on the arbitration
\nagreement and procedures of arbitration and
\nthe subject of the dispute that is the core of
\narbitration.<\/p>\n
So my mission is to keep feeing my customers with food that will prolong
\ntheir lives, will enhance their life styles and will leave them wanting more.<\/p>\n
Arbitration is a Specialized Jurisdiction: It
\nguarantees the specialized legal and technical
\nknowledge and experience necessary for
\nsettling the investment disputes, whose
\ndisputes settlement requires modern
\neconomic and technical knowledge, and
\nexperience suitable with the expansion of
\nthe foreign investment fields. Most often, the
\narbitrators are at highest level of scientific
\nand legal competency to separate in the
\ndisputes attributed to them, besides to the
\nfact that most of them enjoy the scientific
\nand practical experience in the disputes that
\nare chosen to separate in, as well as the
\nlanguages that contracts and issued and the
\ncorrespondences are performed between
\nthe parties. It is no doubt that the existence
\nof a specialized jurisdiction would achieve
\na justice that achieves the desires of the
\nparties. May be what assists on that is that the
\nparties in general are the ones who choose
\nthe arbitrators. They for sure will resort to
\nchoose the most suitable arbitrators that the
\nspecificity of the case subject of the dispute
\nrequires.
\nSecond: Adhering of the Foreign
\nInvestor in the Arbitration Condition:
\nDue to the fact that the investment contracts
\nare concluded between two unequal parties:
\nthe state of sovereignty, on the one hand and
\nthe special foreign investor, on the other. The
\njustice of the courts of the state is not met by
\ncomplete satisfaction by the foreign investor,
\ndue to the difficulties that he may face when
\nresorting to them, and due to his expectation
\nthat their attitude will be completely neutral
\nin this dispute.
\nTherefore, the investor contracted with the
\nstate is quite keen to enlist the arbitration
\ncondition to solve the disputes that the
\ninvestment contracts provoke, for fear from
\nthe fact that the state may use its sovereignty
\nwhen examining the disputes in the courts,
\nbesides to lack of trust in the justice of the
\ncourts of the hosting state.<\/p>\n
Most often, the arbitrators are at highest level
\nof scientific and legal competency to separate
\nin the disputes attributed to them, besides to
\nthe fact that most of them enjoy the scientific
\nand practical experience in the disputes that
\nare chosen to separate in
\n39 Turkey\u2019s Here-Nisan 2017
\nWhat the state enjoys of independence and
\nsovereignty makes it difficult to separate the
\ndisputes that it is part in them before the
\nnational justice of another state. In spite of
\nthe fact that the modern system tends to
\ntake the immunity that restricts the state,
\nand its objective is to prevent the state to
\nget benefited from its immunity, except for is
\nsovereign works without the other acts that
\nare related to its practice to its commercial
\nactivities and the
\nordinary administrative
\nworks, this doesn\u2019t
\nmean the end of enjoying
\nimmunity as a general
\nprinciple, as the origin
\nis to enjoy it. Here, there
\nappears the difficulty in
\nthe disputes when the
\njudicial immunities of the
\nstate contradict with the
\nfact that other courts of
\nother countries solve the
\ndisputes that the state
\nis part in them, which
\nleads to waste the rights
\nrelated to the foreign
\ninvestor. However, in
\ncase the courts of the
\nhosting state examine the dispute, the foreign
\ninvestor, who is a party in the dispute, may
\nexpose to sudden or coercive decisions that
\nthe state may issue due to what it enjoys of
\nsovereignty to achieve political or economic
\nconsiderations.
\nIn addition to that, the foreign investor is keen to
\nenlist the arbitration condition due to his lack
\nof trust in the impartiality and justice of the
\ncourts of the hosting state, because he does
\nnot expect that its attitude will be completely
\nneutral towards the dispute. The national
\njustice of the contracted state, whatever the
\nmerits that it enjoys of independence and
\nneutrality form the state itself, at the end, the
\nmatter is a justice not neutral to the disputes
\nthat the state is part in them with the foreign
\ncontractor, which aroused from a contract
\nrelated to the economic or social interest and
\nthe sovereignty of the state.<\/p>\n
the foreign investor is keen to
\nenlist the arbitration condition
\ndue to his lack of trust in
\nthe impartiality and justice
\nof the courts of the hosting
\nstate, because he does not
\nexpect that its attitude will be
\ncompletely neutral towards
\nthe dispute.<\/p>\n
For all that is mentioned above, we find the
\nforeign investors quite keen to enlist the
\ncondition of arbitration in their contracts with
\nthe hosting state, even it was at the expense
\nof declining to complete the contract. May be,
\nin the contract of \u201cDisney World\u201d concluded
\nbetween American Company and France is the
\nbest example thereof. The American investor,
\nin order to agree on investment, stipulates
\nthat the disputes related to this investment,
\nwhich occurs in the suburbs of Paris, to be
\nreferred to arbitration. However, the problem
\nthat encountered the French Government is
\nthat the opinion at the French State Council,
\ncontrary to the court of discrimination related
\nto the international contracts related to the
\ninterest of the international trade, is that it is
\nnot permitted to resort to arbitration in the
\ncontracts, in which the state is a party, abiding
\nby what maintaining the French sovereignty
\nimposes. The value of the contract was
\nbillions of dollars. France was hesitated
\nhow to quit the French Consultative Council
\nthat enacted the administrative laws to
\nFrance and the World? The conclusion of the
\ncontract delayed and became a matter to be
\na project or not depending on the arbitration
\ncondition\u2026 Finally, France accepted the
\narbitration condition.
\nThird: Arbitration is a Procedural
\nGuarantee for Encouraging Investment:
\nIt is fixed that in order achieve the biggest
\nattraction of the investments necessary
\nfor developing the resources of the hosting
\ncountry, it is necessary to provide adequate
\nprotection to secure the investments of the
\nspecial foreign party.The capital is coward in
\nits nature. It needs security. The investor is
\nworried and scared. He needs to get relieved.
\nThe hosting state is worried about its
\nsovereignty, and alerts towards the foreign
\npenetration.<\/p>\n
all that is mentioned above, we find the foreign
\ninvestors quite keen to enlist the condition of
\narbitration in their contracts with the hosting
\nstate, even it was at the expense of declining
\nto complete the contract<\/p>\n
Encouraging foreign investments needs
\nguarantees with which the investor feels
\ncomfortable and removes the wordiness from
\nhimself, while the state keeps the right to
\ntake the procedures that the public interest
\nnecessitates, provided to compensate the
\ndamaged investor for what is incurred to
\nhim of damage. The most important of these
\nguarantees is the availability of judicial
\nguarantees to protect his investments.
\nThe investor usually rests assured to the
\njudgment of arbitration, which became the
\nnormal jurisdiction in this field, especially
\nthat arbitration would dissipate the fears of
\nthe foreign investors as related to subjecting
\ntheir disputes to the ordinary jurisdiction of
\nthe state, which rarely is a welcomed source
\nas related to the foreign investors. Hence,
\nthe interaction and communication between
\narbitration and the flows of the capitals
\nand their diversities appear. The challenge
\nthat the international foreign investments
\nface became of the type \u201cTo be or not to
\nbe\u201d. In case it was impossible to resort to
\narbitration as a mechanism for settling
\ndisputes, the big companies that belong to
\nthe industrial countries, which are alone able
\nto offer the projects, sophisticated technical
\nand scientific knowledge for the developing
\ncountries will most often will quit performing
\nthe investments that the developing countries
\nneed.
\nAs a keen interest from the
\ncountries, especially the
\ndeveloping ones, on attracting
\nforeign investments, they
\napproved arbitration as a means
\nfor settling the investment
\ndisputes. This was manifested by:
\nTheir joining to the international
\nagreements related to protecting
\nand encouraging investment,
\nwhich include expressive texts
\nmakes the separation in the
\ninvestment disputes from the
\ncompetency of the arbitration
\njurisdiction, without the justice
\nof the hosting country.<\/p>\n
The investor usually rests assured to the judgment of
\narbitration, which became the normal jurisdiction in this
\nfield, especially that arbitration would dissipate the fears
\nof the foreign investors as related to subjecting their
\ndisputes to the ordinary jurisdiction of the state, which
\nrarely is a welcomed source as related to the foreign
\ninvestors. Hence, the interaction and communication
\nbetween arbitration and the flows of the capitals and their
\ndiversities appear.<\/p>\n
The included in their legislations certain
\ntexts that make arbitration among the means
\nthat have priority on which the disputes of
\nforeign investments are settled. For example,
\nwhat article \/26\/ paragraph \/B\/ of the Syrian
\nInvestment Law no. \/10\/ of the year 1991
\nincluded, that: \u201cThe investment disputes
\nbetween the investors of the subjects of the
\nArab and foreign countries, whose projects
\nare included in the provisions of this law and
\nthe Syrian public entities and institutions
\nshall be settled as follows: – through amicable
\nsolution. However, if both parties declined to
\nreach to amicable solution within a period
\nof six months from the date of submitting
\na written notification for settlement by one
\nof the two parties of the dispute, either one
\nof them may resort to one of the following
\nways:- resorting to arbitration
\nSuch texts that dedicate arbitration in the
\nfield of international investment disputes, we
\nfind them in the Egyptian law of guarantees
\nand incentives no. \/8\/ of the year 1997, in the
\nseventh article thereof, which stipulated that:
\n\u201cIt is permitted to settle the investment
\ndisputes in the way that the investor agrees
\non. It is also permitted to agree on settling
\nthese disputes in the frame of bilateral
\nagreements between the Arab Republic of
\nEgypt and the State of the Investor, or in the
\nframe of Washing to Agreement related to
\nsettling the investment disputes between the
\nstates and the subjects of other countries,
\nor in accordance with the provisions of the
\nEgyptian Arbitration Law no. \/27\/of 1994.
\nIt is also permitted to agree on settling
\nthe disputes referred to above through
\narbitration before Cairo Regional Center
\nfor International Commercial Arbitration
\n\u2026.\u201d, and the Lebanese Investment Law no.
\n\/360\/ of the year 2001, where the twelfth
\narticle thereof stipulated that: \u201c The disputes
\nbetween the establishment and the investor
\nshall be settled in an amicable way. However,
\nit is impossible to reach to amicable solution,
\nIt can be resorted to arbitration in Lebanon or
\nin any other international arbitration center\u201d,
\nas well as the Bahraini Arbitration Law no.<\/p>\n
Accordingly, the targeting of the state to
\nattract foreign investments to its territory
\nnecessitates that the law in it (especially the
\ninvestment legislation) to approve the principle
\nof permitting to submit the investment
\ndisputes on a body that the investor trusts
\nin its neutrality, such as the arbitration
\nbodies in the frame of what is agreed on with
\nthe investor, or in the frame of the related
\ninternational agreements. It is no doubt that
\napproving such a principle would increase the
\nauthenticity of the commitment of the state
\nin fulfilling its undertakings that it adopted
\nby itself. In this regard, the Syrian Ministry
\nof Justice prepared a Law Project related
\nto Internal and International Arbitration, in
\nwhich it observed what had been credited of
\nthe International Arbitration Systems in the
\ninternational and Arab agreements, getting
\nuse of the experiments of the countries in
\nthis context in a way that makes Syria among
\nthe countries that encourage arbitration.
\nTo sum up: Arbitration is closely connected
\nwith investment, and plays an important
\nrole in its flow to the hosting countries, as
\nit represents a security, and stability factor
\nfor the investors, because, in their opinion,
\nit is considered the effective means that
\nguarantee settling the investment disputes
\nwith complete partiality and abstraction
\nwithin a certain period, away from the
\njurisdiction of the state and what it suffers
\nfrom complications and slowness, besides to
\nthe fear of the investors from alignment of
\nthe national justice with the other party, the
\nfact that would expose their investments to
\nrisks that they can dispense with. Therefore,
\narbitration and investment is now being
\nlooked at as being twin that cannot be
\nseparated from each other. Therefore, in my
\nopinion, the rule should be overlapped in the
\ndictum that we mentioned: (Wherever there
\nis investment there is arbitration) and reverse
\nit to become: (Wherever there is arbitration,
\nthere is investment).<\/p>\n","protected":false},"excerpt":{"rendered":"
Due to the big economic development that the world witnessed in the second half of the Twentieth Century and early current century, the countries, on the top of which the developing countries, hastened to encourage the flow of foreign capitals to them to tackle their economic problems and upgrade the level of the individual\u2019s income […]<\/p>\n","protected":false},"author":1,"featured_media":421,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-420","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-genel-en"],"_links":{"self":[{"href":"https:\/\/www.turkeyishere.com\/index.php?rest_route=\/wp\/v2\/posts\/420"}],"collection":[{"href":"https:\/\/www.turkeyishere.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.turkeyishere.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.turkeyishere.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.turkeyishere.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=420"}],"version-history":[{"count":1,"href":"https:\/\/www.turkeyishere.com\/index.php?rest_route=\/wp\/v2\/posts\/420\/revisions"}],"predecessor-version":[{"id":422,"href":"https:\/\/www.turkeyishere.com\/index.php?rest_route=\/wp\/v2\/posts\/420\/revisions\/422"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.turkeyishere.com\/index.php?rest_route=\/wp\/v2\/media\/421"}],"wp:attachment":[{"href":"https:\/\/www.turkeyishere.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=420"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.turkeyishere.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=420"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.turkeyishere.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=420"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}