Consent to Arbitration in Foreign Investment Arbitration

As with all arbitration, consent lies at the root of arbitration of foreign investment disputes. 1 It is all the more relevant in such arbitration as a State, a sovereign entity, is involved. Where there is a contract of foreign investment containing an arbitration clause, there can be little doubt that future disputes arising from the contract could be submitted to the tribunal indicated in the arbitration clause as the clause manifests the consent of the parties to such arbitration. The phenomenon that arises in modern foreign investment arbitration which involves a State as one of the parties is the claim that consent to arbitration could be created from a State’s unilateral offer of such arbitration. Such a unilateral offer could be made either through its foreign investment legislation or through the dispute resolution provision in an investment treaty.