The application of the ARSIWA in ICSID arbitrations has become a widely used yet challenging topic since the establishment of this arbitration center. The necessities and challenges of invoking responsibility of States articles in investment arbitration disputes have been discussed in many cases brought before the ICSID arbitration tribunals, and finding a unified approach among arbitration awards is not particularly straightforward. For this reason, the present article aims to examine the position of the draft articles on the international responsibility of States—which, according to the majority of international legal scholars, have become customary international law—in the decisions of ICSID arbitration, as the most important institution for the resolution of investment disputes. The main objective of this Article is to examine the application, role, and significance of ARSIWA in the decision-making processes of ICSID arbitration. In other words, this study aims to determine whether these articles play a direct role in the conclusions of ICSID arbitration or merely serve as secondary preliminaries for reaching a conclusion. In this article, a descriptive-analytical method has been used to answer these questions; thus, by studying legal doctrine and arbitration awards, the state of the application of ARSIWA in arbitration awards has been described, and the type and manner of application of these articles and their position in the decision-making of the tribunal has been analyzed. It appears that these materials are primarily cited to enhance the persuasiveness of ICSID arbitration awards rather than to directly influence the resolution of disputes.

The umbrella clause is one of the most common conditions in investment treaties that contain maximum protections for the investor. The purpose of reviewing the arbitration procedure of this clause in the ICSID is if the parties of the investment treaty wish to include this clause in their treaty how and if they decide to include this condition in their contract, the ICSID has which view on writing, the purpose and the consequences of the inclusion of this clause in the investment treaty and ultimately what decision it makes regarding the treaty and consequently the Umbrella clause. In the arbitration procedure of this institution, there are two views on the Umbrella clause, one being a broad interpretation and the other is limited interpretation. The expansive interpretation develops the competence of the ICSID in dealing with investment disputes and the consideration of the obligations or on the other hand leads to qualification and vice versa, the adoption of a limited interpretation creates a limitation on the jurisdiction of this authority or disqualification, resulting in the widespread support resulting from the adoption of a broad interpretation of the Umbrella clause to the investor. This kind of interpretation can be preferred. The research method is the library method.

In Draft Articles on Responsibility of States for Internationally Wrongful Acts, the general notions related to the international responsibility of states are specified. However, this is doubtful whether these notions can be used in the ICSID arbitration process. According to the convention and the procedure of the ICSID Arbitration Center, in the absence of an explicit agreement in the arbitration agreement, state responsibility based on the ICSID Convention and the rules of customary international law can be brought to the attention of the ICSID International Arbitration Center. The absolute obligations of the investee state concerning investment security are compatible with the Draft Articles on Responsibility of States. The application of the provisions of the Draft Articles on Responsibility of States is another reason for ignoring domestic laws to avoid international responsibility in the ICSID arbitration procedure and will contribute to stability in the field of international investment. On the other hand, the development of the concept of human rights to support the foreign investor for the purpose of establishing the absolute responsibility of the investee state in the ICSID arbitration procedure indicates the absolute responsibility of the investee state for the benefit of developed countries, which consequently limits the sovereignty of the investee state and as a result will lead to the violation of national sovereignty, unilateralism, and finally, the states’ tendency to withdraw from the ICSID Convention.

In the case Micula A. O. v. Romania, the arbitration tribunal established under the auspices of the International Center for Settlement of Investment Disputes (ICSID) sentenced Romania to pay a compensation for the revocation of investment incentives and for the breach of fair and equitable treatment principle that had been laid down in a bilateral investment treaty between Sweden and Romania. Considering investment incentives as a breach of the EU regulations regarding state aids, the European Commission then rendered a directive, prohibiting the enforcement of the arbitration award by the member states. As articles 53 and 54 of ICSID emphasize that the awards are binding, the EU Commission’ s act of rendering the aforementioned directive, and the member states refusal to comply with the award equals to giving the EU law primacy over international law, which should be considered as a breach of their international obligations. Using a descriptive-analytical method, this article seeks to explain the viewpoints of the parties and the courts which were asked to enforce the award, as well as to determine the nature of their acts.

It is not possible to stop the implementation of the arbitration award in the International Center for the Settlement of Investment Disputes (ICSID) except by resorting to the annulment procedure. In other words, the possibility of appeal and declaration of invalidity of the arbitration decision is not foreseen in ICSID as in other arbitration institutions. Article 52 of the Washington Convention contains five ways of revoking the arbitration award, which is analyzed in this research, paragraph 1 (b), which deals with revoking due to clear violation of powers. . The plan considered for the research is divided into two parts: the first, the history of drafting paragraph b of Article 52, the basis of the authority of the arbitration board, annulment limitations, prohibition of the right of average appeal of the annulment hearing board and interpretation of the annulment have been discussed, and in the second part, by focusing the research on the excess of powers and topics such as the necessity of complying with the provisions of the investment treaty, the cases that have been considered in ICSID award were counted. It is necessary to mention that the studied treaties here are considered to be investment ones and commercial treaties are out of the scope of the discussion.

Privatization of mother industries has been a focal issue in investment disputes in the last few decades. Thus far, there have been five major investment arbitrations regarding privatization of water industry in all of which the human right to water has been invoked by the host States or NGOs. At present, there are no binding human rights instruments that recognize the right to access water as an independent human right. The Committee of Social and Economic Rights goes so far as to infer the existence of this right from other human rights such as right to food, right to health, and right to housing. This article traces the human right to water from its birthplace, human rights law, to ICSID arbitration.

Challenge of arbitrators is a controversial issue in international arbitration ingeneral and in ICSID Arbitration in particular. There is a consensus that thelack of impartiality and independency leads arbitrators to be challenged.However, there is a duality of standards for challenging arbitrators. Ininternational commercial arbitration and international investment arbitrationwhich are not based on the Washington Convention, the standard is based on thestandard of "reasonable doubt". By contrast, ICSID Arbitration adheres to thecriterion of "lack of manifest" by virtue of Article 57 of the WashingtonConvention. The majority of ICSID Tribunals make a distinction between ICSIDArbitration and non-ICSID arbitration, which is unsatisfactory and could becriticised. By evaluating pertinent ICSID Arbitration cases, this Article arguesthat ICSID regime is ambiguous in terms of the challenge of arbitrators. Itconcludes that for the purpose of adopting a unitary standard for the challengeof arbitrators in international arbitration, ICSID Arbitration Rules as amendedin 2006 and some ICSID cases have provided the basis for invoking the standardof "reasonable doubt".

Investment arbitrations have their own challenges due to their asymmetric nature, which arise from the essential difference between the parties to the claim. The investor on the basis of the investment agreement can bring a claim against the host State, but on the contrary, the counterclaim by States for changing the current process of investment arbitration, in which the ultimate conviction is usually for the State, faces with a number of fundamental challenges. This is due to the non-anticipation of the possibility of counterclaim by States and the difficulty of imposing the obligations of international law on investors. These gaps along with the possibility of violation of human rights by the investor, ultimately, lead to non-compensation of third-parties, who are in many cases the direct victims of human rights abuse in this process. Urbaser v. the Argentina is the first ICSID case which the ICSID arbitration tribunal accepts a counterclaim of a State based on human rights violations and puts it into detail analysis; although finally the State remained unable to prove its claim, and the counterclaim had been rejected in merits.

In this article, a sample of ICSID arbitration tribunal’s jurisdictional decision regarding to conditions and foundations of jurisdiction and admissibility of claims have been studied. regulatury powers of the contracting parties of the bilateral investment treaty in determining legal personality of investor is taken into consideration in the light of ICSID convention’s purposes.Studying the terms of this decision and its analysis in this article is considered as a suitable guidance for Iranian authorities in order to join into ICSID Convention and to conclude some bilateral treaties in supporting foreign investment.

In many bilateral investment treaties, the investor is allowed to submit its claim to domestic courts, arbitration or any other agreed tribunals. Offering different options to the investor for the method of dispute resolution could lead to some problems, such as conflicting decisions and ambiguous interpretations. Because of these problems, some states have placed some restrictions upon investors and prohibited them from submitting their claims in different courts or tribunals at the same time. Fork in the road is a specific clause requiring the investor to make a final decision and choose a specific court or tribunal, among all competent courts and tribunals, to submit its claim. Choosing any tribunal prevents other tribunals from having jurisdiction. This article aims to examine international arbitration practice regarding fork in the road clause by focusing on ICSID awards.