Nasim Gheidi & Parham Zahedi, Gheidi & Associates
(See Part 1 and Part 2 of this post here and here)
Iran’s Bilateral Investment Treaties (BITs)
Iran has signed more than 100 BITs (More than 50 of which are in force) with capital-exporting and neighboring countries for the reciprocal promotion and protection of foreign investment in Iran. The purpose behind these BITs are to guarantee foreign investments’ all necessary permits for the realization of an investment, monetary transfer, full legal protection, compensation for expropriation, observation of commitments (umbrella clause), access to international arbitration and a fair and equitable treatment standard (FET).
The obligations granted by the FET are predictability, transparency, certainty and stability of the legal system of the host state and most important of all principle of due process. An investor must have access to the courts, fair hearings and the right of appeal. Furthermore, it shall be noted that only investors who have been approved and registered by the Organization for Investment, Economic and Technical Assistance of Iran (OIETAI) can enjoy abovementioned substantive investment protection standards. Therefore, foreign investors must obtain an investment license to benefit from those protections.
With regards to dispute settlement, methods of dispute resolution in most of the Iran’s BITs are similar to each other. Iran’s model BIT contains 15 articles and a preamble. Article 12 and 13 are dealing with methods of settlement of potential disputes between the contracting parties or investor of one of the contracting parties. Under Iran’s model BIT, these methods can be categorized into two groups. One is when the contracting parties disagree on the interpretation or application of the BIT and the other is in cases in which a dispute between a contracting party and an investor of the other contracting party arises.
According to the BITs, if any dispute arises between a contracting party and an investor of the other contracting party with respect to an investment, in this case, each party has to wait six months “from the date of notification of the claim by one party to the other.” This intervening period allows parties to negotiate their legal claims and possibly reach an amicable settlement. If a dispute refers to the tribunal prior to the six months, then the dispute is rejected based on admissibility ground and not on jurisdiction. In case they fail to resolve their dispute amicably through negotiation and consultation, they shall either refer their dispute to the competent national court of the host country or arbitration.
The award shall be final and binding on both parties to the dispute. In any circumstances no party can use both methods simultaneously. For instance, if the dispute is referred to national courts, then in that case, only by the consent of both parties, the dispute can be referred to arbitration. In return, national courts shall not have jurisdiction over any dispute referred to arbitration. However, these provisions do not bar the winning party to seek for the enforcement of the arbitral award before national courts.
Under BITs the investor at his choice, may choose to submit its dispute to an ad hoc Arbitral Tribunal in compliance with UNCITRAL rules or refer the dispute to an arbitration institution. Interestingly, in some of the concluded BIT’s, with Austria, Greece, Sweden, Cyprus, France, Venezuela, Malaysia and Spain parties have different choice of institutions to refer their arbitration to. For example, in some of them Parties can either refer their disputes to International Chambers of Commerce (ICC) or International Center for Settlement of Investment Dispute (ICSID) and in some to Stockholm Chambers of Commerce (SCC). However, in some other BITs parties’ choices are limited to only an ad hoc Arbitral Tribunal other than national courts, like China, South Africa, and Switzerland.
With respect to disputes between contracting parties concerning the interpretation or application of the BITs, they shall, in the first place, try to settle their dispute amicably. The period of negotiations defer between two to six months. If no settlement can be reached then the contracting parties are allowed to initiate arbitration proceeding. The negotiation period is mandatory and in case of non-compliance, the dispute might be rejected by tribunal. The arbitral tribunal shall consist of three arbitrators. Each party has the right to choose one and the chosen arbitrators shall choose the third who will be the chairman.
In case one of the contracting parties fail to choose an arbitrator or the chosen arbitrators fail to choose the third, then either contracting party may invite the president of the International Court of Justice to make any necessary appointment. According to the provisions of BITs, the arbitral tribunal shall reach its decision by a majority of votes. The decision of the tribunal shall be final and binding on both contracting parties.
As previously discussed in the last article[1], requirements of Article 139 of Iranian constitutional Law is a major obstacle to recourse to arbitration in Iran. Due to this requirement in some Iranian BITs, in the arbitration clause there is a phrase, which might be inserted due to this Constitution obstacle. Paragraph 2 of Article 12 of Iranian Model BIT states:
“…either of them may refer the dispute to the competent courts of the host Contracting Party or with due regard to their own laws and regulations to an arbitral tribunal of three members referred to paragraph 5 below.”
As it can be seen a systematic reservation has been directly or indirectly made to Iran BITs regarding referring the dispute to arbitration. The Iranian Government may invoke the constitutional prohibition as an objection to the jurisdiction of the arbitration tribunal in the case of investment disputes.
In a dispute between Iran Ministry of Health and a British Company before Swiss Court of Appeal, Cementation International Ltd v. Republique Islamique d’Iran, the court held that parties could not invoke their constitutional provision in order to set aside the arbitration clause. This is because parties to the contract have implicitly waived their right to invoke all internal conflicting provisions by referring their dispute to arbitration. Moreover, it can be argued that whenever a State with knowledge and intent, consents to arbitration and later tries to nullify it with invocation of its internal law and raise the jurisdictional objection, its objection shall be denied, because it is in contrary with international public order.
However, one shall bear in mind that enforcement of such award cannot be guaranteed in national courts of Iran due to their tendency to comply with public order of the nation.
[1] Gheidi, N. and Zahedi, P. 2017. Arbitration in Iran: With Focus on International Commercial Arbitration (Part II). EFILA Blog