Dilemma of Consent to International Arbitration in Investment Agreements without a Forum

Fernando Tupa addresses the sometimes-overlooked yet fundamental principle that consent to international arbitration is forum-specific, and explores its significance and practical consequences for investment tribunals. The author proposes that, if there is only consent "e;in principle"e; to international arbitration by the host State in an investment agreement due to the lack of a forum (or the unavailability of the forum contemplated therein), a foreign investor would not be entitled to unilaterally initiate an investment claim against the host State under said agreement, absent a subsequent agreement between the foreign investor and the host State on an arbitral forum. He also draws some conclusions and warns against the dangerous consequences of ignoring this basic principle.