International law and contracts of economic cooperation
What is the ICSID? Is the International Centre of settlement of differences concerning investments. It's an organism that although has joined the World Bank Group, is completely independent of it.
What does it do? It is an arbitration service made available to Governments and investors to resolve their differences without having to face trial.
The ICSID serves as a mediator between parties. When there is a disagreement, the parties in the dispute may approach it.
There, the interested parties name three dialogue mediators or facilitators who are in charge of studying and suggesting possible arrangements. It is about independent officials appointed by the parties’ common agreement, they are not employees of the World Bank.
Critics of the ICSID have exposed the following arguments against it:
• Its decisions would be definitive, in other words there would be no opportunity for an appeal.
• It would not be neutral. Out of 232 cases, 230 would have been in favor of the companies against the States.
• The interference of The ICSID contradicts the political constitution of the State of Bolivia (article 135) and the Constitutional Court already declared it incompetent.
• Within the body only companies would present suits.
• Its methodologies would be arbitrary and unclear.
• It does not accept audiences with external petitioners. It would meet behind closed doors.
The defense of the States in this instance turns out to be very expensive, given the need to hire lawyers in the United States, however practice has shown that in the case of Bolivia out of the 3 existing cases, one has been in favor of the State, and two are still being processed, the retirement of Bolivia out of The ICSID is a sovereign decision that is respected by the World Bank, that step has not brought any distancing and it also does not affect the normal cooperation between the two of them.
CONCEPT
Arbitration is a jurisdictional procedure sui generis, in which the parts by express will, differ the resolution of private conflicts over the available and acceptable rights, delegating given resolution to a collegiate body composed by individuals known as arbitrators who are temporarily vested with the jurisdiction to make an arbitral award with the same effects of a judicial decision.
When the Bolivian Constitution refers to special jurisdictions regulated by the law, it has made the constitutional standard a "reserve of the law", and in this case it delegates this jurisdiction to the regime of the arbitration in Bolivia.
Classification according to the principles in law
It is the one in which the designated people to perform the arbitration must base its arbitration award based on positive, substantive and current standards and to rules on the evidence law.
In equity or consciousness
It is the one in which the people in charge of the arbitration make their ruling without subjection to the positive law (legal probation rate). In this mode the arbitrators issue the arbitration award according to their best knowledge and belief, applying the principles of equity, common sense, known truth and good faith. The ruling for consciousness or equity does not prevent the subsidiary application of the substantive law, the arbitration in equity is the one in which arbitrators decide, according to their common sense and does not intend to hold the arbitrator strictly to the rules of procedural law, for the following budgets.
• As a first term, because the procedural provisions on arbitration in Bolivia are not of public order if they do not constitute subsidiary rules to the will of the parties who may freely establish and create the rules of the game.
•Secondly, because the quality of the arbitrator in consciousness, does not required the person to be a lawyer.
•Thirdly, because the valuation of the test means absolute freedom in the reception and appreciation of the test.