The requirements of arbitration proceedings for the fair settlement of claims arising from foreign investment

Subject Areas : Journal of Law and Politics

Mahmoud Qomshal ¹ , Ahmad Moradkhani ² , Meddi Mirdadashi ³

1 - 1. Mahmoud Qomshal, Student Ph.D.of Private Law, Faculty of Humanities, Islamic Azad University, qom Branch, Islamic Azad University, qom, Iran
2 - 2. Dr. Ahmad Moradkhani, Associate Professor Department of Fiqh and Fundamentals of Islamic Law, Faculty of Humanities, Islamic Azad University, qom Branch, Islamic Azad University, qom, Iran. (Corresponding Author)
3 - 3. Dr. Seyed Mehdi Mirdadashi, Assistant Professor Department of Private Law, Faculty of Humanities, Islamic Azad University, qom Branch, Islamic Azad University, qom, Iran

Received: 2022-10-09 Accepted : 2022-12-07 Published : 2022-09-23

Keywords: arbitration, principle of proportionality, minimum standard,

Abstract :

Considering the unique role of foreign investment in the process of economic growth and development of countries in recent decades, the importance of an efficient legal system in order to support it becomes more and more apparent. Considering the possibility of partiality in national courts in order to settle disputes caused by foreign investment, in most treaties and investment contracts, the tendency to arbitration mechanism is noticeable. The descriptive-analytical study of the arbitration proceedings in the above-mentioned issue shows that arbitration alone is not sufficient for the efficient and fair settlement of claims arising from foreign investment and requires substantive and formal requirements. Compliance with the minimum standard (in the treatment of foreigners) and compliance with the principle of proportionality is one of the most important substantive requirements, and avoiding parallel proceedings and preventing fictitious lawsuits can also be considered as one of the most important formal requirements that must be observed by the institutions and the court. Arbitration proceedings at different domestic and international levels will have a significant contribution to the fairness of arbitration proceedings and, as a result, the efficiency of the legal system in order to support foreign investment. It seems that despite the increasing desire for arbitration mechanism in foreign investment treaties and agreements, a significant consensus regarding its requirements has not been formed at the regional and international level.