RESEARCH ESSAY QUESTIONS

Q3. Compare and contrast the following two statements:
“Neither the ICSID Convention nor the BIT imposes a prohibition on a State that enjoins it from exercising criminal jurisdiction over such matters. In particular, they do not exempt suspected criminals from investigation or prosecution by virtue of their being investors. The Tribunal rejects any suggestion that ordinary domestic criminal law of general application was intended to be or is constrained by the initiation of ICSID proceedings under the BIT. As expressed by the Respondent, lain arbitration clause is not a license for general lawlessness.’”
- Lao Holdings BV v Laos (ICSID Case No ARB(AF)/12/6, Ruling on Motion to Amend the Provisional Measures Order of 30 May 2014), para. 21.
“It is trite to say that criminal law and procedure are a most obvious and undisputed part of a State’s sovereignty. That (trite) fact supports the approach adopted here by the Tribunal, namely that any obstruction of the investigation or prosecution of conduct that is reasonably suspected to be criminal in nature should only be ordered where that is absolutely necessary. As will be seen, the Tribunal is satisfied that this is such a case.”
- Hydro Srl v Albania (ICSID Case No ARB/15/28, Order on Provisional Measures of 3 March 2016), para. 3.16.
Critically discuss. Do investment tribunals have the power to order a State to refrain from pursuing domestic criminal proceedings?