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Both the original arbitral tribunal and the ad hoc annulment committee in the case of Wena v. Egypt failed to respect the ICSID Convention’s article 48 requirement to state the reasons upon which an investor-state arbitration award is based. This chapter demonstrates how these failures led to further disputes and unsatisfactory outcomes for the disputing parties. It argues that a stricter adherence to the Convention's reasons requirement would better fulfill the objectives of the international investment law regime for both states and investors.
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A version of this paper was published in "The Reasons Requirement in International Investment Arbitration: Critical Case Studies" (Guillermo Aguilar Alvarez & W. Michael Reisman eds., 2008). This paper was written as part of a project that analyzed recent international investment arbitration decisions with respect to the quality and adequacy of the reasoning provided by the tribunal and its compliance with the reasons requirements contained in the applicable legal framework (e.g., Article 48(3) of the ICSID Convention, Article 47(1)(i) of the ICSID Arbitration Rules, Article 52(2)(i) of the ICSID Additional Facility Rules, Article 32(3) of the UNCITRAL Arbitration Rules, customary international law, etc.). In line with the goals of the project, the paper focuses primarily on the grounds which the tribunal in Saluka v. Czech Republic provided in support of its legal conclusions, without necessarily analyzing the merits of these conclusions.
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