Arbitration Without Agreement under the ICSID Rules: A Comparative Study with Egyptian and Qatari Legal Systems

Background: A state's offer to resort to arbitration is one of the most significant topics that raises numerous issues, as such an offer serves as the legal basis for the arbitration agreement, which is later completed upon the investor’s acceptance. The state's expression of consent to arbitration is no longer limited to cases where it concludes a contract with the investor containing an arbitration clause. Rather, the state's consent is now inferred through legislative offers and international agreements to which the state is a party. Methods: In some cases, arbitration is based on specific international legal obligations, such as bilateral investment treaties, which may bind states to arbitration in disputes with foreign investors. As a result, states have become parties to arbitration claims initiated by investors with whom they have no contractual relationship. This has led to a fundamental shift in the landscape of international arbitration, as investment disputes have moved from the realm of diplomatic protection to the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID). ICSID has, in turn, expanded its jurisdiction to encompass investment disputes even in the absence of an agreement between the disputing parties to resort to arbitration. Results and conclusions: The study has demonstrated that a state's consent to ICSID arbitration may, in certain cases, be inferred from domestic legislation or bilateral investment treaties, thereby establishing a valid legal basis for ICSID jurisdiction even where no directly concluded arbitration agreement exists between the state and the investor.