Investment Treaty Arbitration

Investment Treaty Arbitration: Jamaica

Overview of investment treaty programme

1. What are the key features of the investment treaties to which this country is a party?

Jamaica

BIT Contracting Party or MIT

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection
and security

Most-favoured-nation (MFN)

Umbrella clause

Cooling-off period

Local courts

Arbitration

Argentina (1 December 1995)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

China (1 October 1995)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Cuba (Not in force/not public)

               

Egypt (Not in force/not public)

               

France (15 September 1994)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Germany (29 May 1996)

Yes

Yes

Yes

Yes

Yes

No

Yes

Yes

Indonesia (Not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Italy (9 November 1995)

Yes

Yes

No

Yes

No

3 months

Yes

Yes

Netherlands (1 August 1992)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Nigeria (Not in force/not public)

               

South Korea (Not in force)

Yes

Yes

Yes

Yes

No

9 months

Yes

Yes

Spain (25 November 2002)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Switzerland (21 November 1991)

Yes

Yes

Yes

Yes

No

12 months

Yes

Yes

United Kingdom (14 May 1987)

Yes

Yes

Yes

Yes

Yes

No

Yes

Yes

United States (7 March 1997)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Zimbabwe (Not in force/not public)

               

FTAs/EPAs

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection and security

Most-favoured-
nation (MFN)

Umbrella clause

Cooling-off period

Local courts

Arbitration

CARICOM-Colombia Trade, Economic and Technical Cooperation Agreement

No

No

No

No

No

No

No

Yes (Inter-State)

CARICOM-Costa Rica FTA

Yes

Yes

Yes

Yes

No

Yes

6 months

Yes

CARICOM-Cuba Cooperation Agreement

No

No

No

No

No

No

No

Yes (Inter-State)

CARICOM-Dominican Republic FTA

Yes

Yes

Yes

Yes

Yes

3 months for an Investor-State dispute, none for Inter-State dispute

No

Yes (both Investor-State and Inter-State)

CARICOM Single Market

No

No

No

Yes

No

No

Direct recourse to regional supra-national court (Caribbean Court of Justice)

Yes (Inter-State)

Cotonou Agreement: APC- European Union

No

No

No

No

No

No

No

No

Economic Partnership Agreement (EU and CARIFORUM States)

No

No

No

Yes

No

No

No

No

The Revised Treaty of Chaguaramas (establishing the Caribbean Community)

No

No

No

Yes

No

No

Direct recourse to regional supra-national court (Caribbean Court of Justice)

Yes
(Inter-State)

US-CARICOM Trade and Investment Trade Agreement (TIFA)

No

No

No

No

No

No

No

No

Qualifying criteria - any unique or distinguishing features?

2. What are the distinguishing features of the definition of “investor” in this country’s investment treaties?

Jamaica

Issue

Distinguishing features in relation to the definition of ‘investor’

Partnerships, non-profits and other entities

All of Jamaica’s investment treaties extend treaty protection to entities having ‘legal personality’ under the laws of the relevant Contracting Party.

The Germany, Korea, Netherlands, Spain, Switzerland, United Kingdom and United States BITs, as well as the CARICOM-Costa Rica and the CARICOM-Dominican Republic FTAs, extend protection to entities that are not traditionally considered ‘legal persons’, for example, partnerships (Korea, Spain, Switzerland, United States, and CARICOM-Dominican Republic FTA), associations (Italy, Netherlands, Spain), business associations (CARICOM-Costa Rica FTA), branch offices (CARICOM-Costa Rica FTA), foundations (Italy, Korea), and persons ‘with or without legal personality’ (Germany). However, narrower definitions apply for Jamaican investors under the China, Germany, Switzerland and United Kingdom BITs, and the CARICOM-Dominican Republic FTA.

Non-profits are not expressly excluded under any of Jamaica’s BITs, although are only expressly included in the Argentina, Germany, Korea and United States BITs.

Permanent Residents

The term ‘investor’ is generally defined in Jamaica’s investment treaties to include both citizens and nationals of the Contracting Parties. Notably, the Argentina BIT limits the protection available to certain individuals who have become permanently resident in the host state. The Argentina BIT provides that protection does not extend to investments made by individuals who did not originally enter the host country as an investor, and who have resided in the host country for more than two years. Such individuals will only be eligible for treaty protection if it is proved that their investment was admitted into the host State’s territory ‘from abroad’.

‘Control by nationals and non-national’

Most of Jamaica’s investment treaties do not expressly state that qualifying corporate investors must be under the control of a national of the other contracting state. One exception is the Swiss BIT, under which only Swiss corporations or partnerships that are effectively controlled by Swiss nationals who own a substantial share in the investment are able to claim investment protection under the BIT.

The investment treaty with the United States provides that either country may deny the benefits of the United States BIT to investments by companies that are owned or controlled by nationals of a third country if the company is a mere shell, without substantial business activities in the home country, or the third country is one with which the denying Party does not maintain normal economic relations. At the time of writing, the US restored diplomatic relations with Cuba, but was still in the process of normalizing economic relations. The US does not currently maintain normal economic relations with Iran and North Korea.1

‘Indirect control’

Only the BIT with France expressly includes in the definition of ‘investor’ companies controlled indirectly by nationals of one of the Contracting Parties. The absence of such language in other BITs does not mean that indirect shareholders are not covered. For example, a number of arbitral tribunals have held that when a BIT protects investments ‘of’ certain nationals this does not imply that they must be directly owned by those nationals.

It should be noted that at least one tribunal has held that an ultimate beneficiary in a corporate chain was not covered by a BIT, because it played no active role in the investment (it was not enough merely to ‘own’ or ‘hold’ an investment; the investment must have been ‘made’ – whether directly or indirectly).2

3. What are the distinguishing features of the definition of "investment" in this country’s investment treaties?

Jamaica

Issue

Distinguishing features in relation to the concept of ‘investment’

Eligible assets

All of Jamaica’s investment treaties define ‘investment’ to include a broad definition of ‘assets’. The definitions also provide a non-exclusive list of the species of property, claims and rights that may constitute an ‘investment’.

Indirect ownership

The BIT with the United States is the only instrument to expressly define ‘investment’ as including assets owned or controlled indirectly by nationals or companies of the other Party. Control is not specifically defined in the Treaty.

Temporal dimension

The BITs with Korea, France and Italy define ‘investment’ as any kind of asset invested in the territory of a Contracting Party ‘before or after’ the entry into force of the Treaty. This does not mean, however, that these treaties derogate from the principle that investors may not invoke a BIT with respect to disputes that arose before the BIT entered into force.

Associated activities

The United States BIT extends some level of investment protection beyond assets that constitute an ‘investment’; the BIT covers ‘associated activities’, which are separately defined from ‘investment’. Specifically, ‘associated activities’ include ‘the organization, control, operation, maintenance and disposition of companies, branches, agencies, offices, factories or other facilities for the conduct of business; the making, performance and enforcement of contracts; the acquisition, use, protection and disposition of property of all kinds including intellectual property rights; and other similar activities’. The use of ‘and other similar activities’ in the Treaty indicates that this list is merely illustrative.

Companies incorporated in the host State

Under the terms of the United Kingdom, the Netherlands, Switzerland, Italy and Spain BITs, companies incorporated under the laws of the host State may qualify as an ‘investor’, if they are owned or effectively controlled by an investor from the other Contracting Party.

These provisions correspond to the requirements of Article 25 (2)(b) of the ICSID Convention, as acknowledged in the Italy, Switzerland and UK BITs. This provision expressly allows Contracting Parties to agree to treat certain companies incorporated within their territories as if they were foreign investors, for the purposes of ICSID arbitration.

Substantive protections - any unique or distinguishing features?

4. What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?

Jamaica

Issue

Distinguishing features of the fair and equitable treatment standard

The formulation of the standard

Almost all Jamaican investment treaties contain a relatively standard formulation of the fair and equitable treatment obligation and provide that the Contracting Parties must ensure fair and equitable treatment of the investments made by investors.

The French BIT provides for ‘fair and equitable treatment in accordance with the principles of international law’.

The CARICOM-Dominican Republic FTA contains a single provision addressing the fair and equitable treatment and the full protection and security standard, which also affirms that the treatment accorded to qualifying investments should not fall below the standards established by international law – ‘[e]ach Party shall ensure, at all times, fair and equitable treatment for investments and returns, which shall thus enjoy full protection and security, and shall not receive a treatment less favourable than established under international law’.

5. What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

Jamaica

Issue

Distinguishing features of the ‘expropriation’ standard

The formulation of the standard

All of Jamaica’s investment treaties prohibit expropriation of the investments of qualifying foreign investors, except where: (i) the expropriation is in the public interest; (ii) the expropriation is not discriminatory; and (iii) the expropriation is accompanied by prompt and adequate compensation.

Indirect expropriation

With the exception of the China BIT, all of Jamaica’s investment treaties provide expressly for protection from indirect expropriation.

The CARICOM-Costa Rica FTA and the CARICOM-Dominican Republic FTA specify that trade restrictions do not constitute indirect expropriation for the purposes of the respective treaties.

Limits on arbitration

Under the China BIT, resort to ad hoc arbitration is limited to the resolution of disputes involving ‘the amount of compensation for expropriation’.

The Argentina, China, France, Indonesia, Italy, Netherlands, Korea, Spain and Switzerland BITs impose specific ‘cooling off’ periods in which parties are to attempt to settle claims amicably. For example, the Italy and Netherlands BITs require that the parties seek to resolve claims amicably in the first instance. If the claims are not resolved amicably within three months, the parties are obliged to seek local solutions for the settlement of the dispute. Once an 18-month cooling off period has passed, the parties may submit claims to arbitration.

Due process

Under the Argentina, China, Germany, Indonesia, Italy, the Netherlands, Korea, Spain, Switzerland and United States BITs, there is a requirement that any expropriation, nationalisation, or comparable measures take place ‘by due process of law.’

The Korea, United Kingdom and United States BITs, as well as the CARICOM-Costa Rica and the CARICOM-Dominican Republic FTAs, expressly provide that investors whose investments have been expropriated shall have a right to prompt review, by a judicial or other independent authority of the expropriating Contracting Party, of their case and of the valuation of their investments in accordance with the principles set out in the treaties.

Specific commitments

The investment treaty with France provides that a Contracting Party may not expropriate an investment if, inter alia, such action is contrary to a specific commitment. This presumably refers to investment contracts and other similar agreements concluded between the investor and the host-States.

6. What are the distinguishing features of the national treatment/most-favoured-nation treatment standard in this country’s investment treaties?

Jamaica

Issue

Distinguishing features of the ‘national treatment’ and/or ‘most favoured nation’ standard

Extent of obligations

All of Jamaica’s investment treaties provide that the provisions on ‘most favoured nation’ and/or ‘national’ treatment do not extend to the benefits of membership of a customs union, monetary union or free trade area, or to taxation agreements and/or taxation legislation.

As noted earlier, the United States BIT extends some substantive investment protections beyond qualifying ‘investments’ to numerous related business activities carried out in relation to investments (designated as ‘associated activities’). The BIT provides specifically that the Parties should guarantee the better of national or MFN treatment to ‘associated activities’ carried out by investors.

The Italy BIT exempts from MFN treatment any special incentives granted by a Contracting Party to its own nationals or companies as part of its development policy to stimulate the development of local industries. However, such measure must not significantly affect the investment or the activities of foreign investors.

The investment treaty with Argentina expressly provides that the MFN clause should not be construed so as to extend to the investors the benefit of any treatment, preference or privilege resulting from the bilateral agreements providing for concessional treatment concluded by the Argentine Republic and Italy on 10 December 1987 and with Spain on 3 June 1988.

Sectoral exceptions

The United States BIT allows for sectoral exceptions to national and MFN treatment. These exceptions are designed to protect governmental regulatory interests and to accommodate derogations from national treatment and, in some cases, MFN treatment in existing national law. These exceptions are contained in an annex to the BIT.

The United States exceptions from national treatment include, among others: air transportation; ocean and coastal shipping; banking; insurance; government grants; government insurance and loan programs; energy and power production. Jamaica’s exceptions to national treatment are: civil aviation; real estate; banking; shipping; communications (including postal and telegraph services and broadcasting); mining and natural resources; customs brokerages; car rental; real estate agencies; travel agencies; and gaming, betting and lotteries.

Any additional restrictions or limitations which a Party adopts with respect to the listed sectors may not affect existing investments.

7. What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?

Jamaica

Issue

Distinguishing features of the ‘protection and security’ standard

Scope

With the exception of one treaty (Italy), all of Jamaica’s investment treaties guarantee investors full protection and security. A number of treaties (Argentina, China and Germany) guarantee ‘protection’ but do not provide a guarantee of ‘security’.

The CARICOM-Dominican Republic FTA contains a single provision addressing the fair and equitable treatment and full protection and security standards. This provision also affirms that the treatment accorded to qualifying investors should not fall below the standards established by international law – ‘[e]ach Party shall ensure, at all times, fair and equitable treatment for investments and returns, which shall thus enjoy full protection and security, and shall not receive a treatment less favourable than established under international law’.

8. What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?

Jamaica

Issue

Distinguishing features of any ‘umbrella clause’

Scope

Only five of Jamaica’s investment treaties contain an umbrella clause (the Germany, Netherlands, Spain, United States and United Kingdom BITs). These BITs provide that a Contracting Party shall observe any other obligation (apart from those under the BIT) it has assumed with regard to investments in its territory by nationals or companies of the other Contracting Party.

9. What are the other most important substantive rights provided to qualifying investors in this country?

Jamaica

Issue

Other substantive protections

Armed conflict/civil unrest/riot

The BITs with Argentina, Korea, Spain, Italy, Indonesia and the United Kingdom, as well as the CARICOM-Costa Rica and the CARICOM-Dominican Republic FTAs, provide that investors who suffer loss of their investments due to war, armed conflict, a state of national emergency, revolt, insurrection or riot must be accorded compensation, and on a basis no less favourable than that accorded to nationals of the host state or investors from third states.

The China, France, Germany, Netherlands, Switzerland and United States BITs entitle investors to the better of national or MFN treatment with respect to losses related to war or civil disturbances etc, but, unlike the treaties above, do not specify an absolute obligation to pay compensation for such losses.

Entry and establishment

The United States BIT provides that, subject to immigration and employment laws and regulations, each Party should ensure the entry into its territory of nationals from the other Party, for purposes linked to investment and involving the commitment of a substantial amount of capital. The provision also allows companies which are ‘investments’ to engage top managerial personnel of their choice, regardless of nationality.

Similar, albeit more limited, provisions can be found in the investment treaty with Italy and the CARICOM-Costa Rica and the CARICOM-Dominican Republic FTAs, which concern the duties of the Contracting Parties to implement policies to facilitate the entry and residence of investors from other Contracting Parties.

Effective means

The United States BIT is the only instrument to guarantee investors effective means of asserting claims and enforcing rights with respect to investments. Notably, the Treaty also guarantees ‘effective means’ of bringing claims with respect to investment agreements and investment authorizations.

Performance Requirements

The United States BIT specifies that the Parties may not impose performance requirements as a condition of establishment, expansion or maintenance of investments. The performance requirements precluded by this provision include those that require or enforce commitments to export goods produced, or which specify that goods or services must be purchased locally.

Non-impairment

Six of Jamaica’s investment treaties (Argentina, Italy, Netherlands, Spain, Switzerland, and the United Kingdom) provide that Contracting Parties must not impair the management, maintenance, use, enjoyment or disposal of investments through unjustified or discriminatory measures.

Free transfer of payments

All of Jamaica’s investment treaties contain a provision which requires the Contracting Parties to permit investors to transfer investments, payments and investment returns freely.

Under two investment treaties (United Kingdom and Netherlands), this obligation is subject to exchange control regulations.

Under the Netherlands BIT, the host State can partially suspend the obligation related to the transfer of the proceeds of sale or liquidation of an investment, if the host State suffers serious balance of payment difficulties (the suspension must be for a limited period only). The Switzerland and United Kingdom BITs provide for similar restrictions in relation to compensation awarded under those treaties.

The United States and Korea BITs provide that the Parties may maintain certain laws or obligations that affect transfers with respect to investments. For example, the Parties may require reports of currency transfers and impose taxes on dividends. However, such measures must be applied in an equitable and non-discriminatory manner.

Procedural rights in this country’s investment treaties

10. Are there any relevant issues related to procedural rights in this country’s investment treaties?

Jamaica

Issue

Procedural rights

Scope

All of Jamaica’s investment treaties allow for arbitration in relation to disputes between an investor and a Contracting Party arising within the terms of those treaties and concerning an investment. The only exception is the China BIT which only permits recourse to ad hoc arbitration in relation to disputes involving the amount of compensation for expropriation.

The United States BIT provides a more detailed description of the scope of arbitral jurisdiction granted under that Treaty. It defines an ‘investment dispute’ as a dispute between a Party and an investor from the other Party relating to: (a) an investment agreement between that Party and such investor; (b) an investment authorization granted by that Party’s foreign investment authority to such investor; or (c) an alleged breach of any right conferred or created under the BIT with respect to an investment.

ICSID or ad-hoc arbitration

All but one of Jamaica’s investment treaties (China) provide a right of recourse to arbitration under the ICSID Convention. The Argentina, Indonesia, Italy, Spain and United States BITs also allow investors to pursue claims through ad hoc arbitration in accordance with the UNCITRAL rules.

The China BIT only allows for an ad hoc arbitration. The Treaty does not specify any arbitral rules.

The Italy BIT requires that expropriation and nationalisation claims are heard in ICSID arbitration, and that other claims under the Treaty are heard in either ICSID arbitration, ad hoc UNCITRAL arbitration, or conciliation under the UNCITRAL Rules.

Fork-in-the-road

Seven Jamaican investment treaties contain ‘fork-in-the-road’ provisions (Argentina, China, France, Indonesia and the United States BITs and the CARICOM-Costa Rica and the CARICOM-Dominican Republic FTAs). Accordingly, under these treaties, investors must elect either to pursue their claim through the courts of the host State or by international arbitration.

Exhaustion of local remedies

Under the BITs with Italy (for expropriation and nationalisation claims), Switzerland and the United Kingdom, the right to commence arbitration in respect of investment disputes is contingent on the exhaustion of local remedies.

The Germany, Korea and Netherlands BITs expressly provide that arbitration proceedings may be commenced after local remedies have been pursued. The Germany and Netherlands treaties make it clear that the prior exhaustion of domestic remedies is not, however, a condition precedent to the right to commence arbitration.

Waiver of diplomatic protection

Consistent with one of the primary motivations and purposes of the investment treaty regime – providing rights of action for private investors – a number of investment treaties contain a waiver of diplomatic protection. The Germany, Italy, Netherlands, United Kingdom and United States BITs, as well as the CARICOM-Costa Rica and the CARICOM-Dominican Republic FTAs, provide that the Contracting Parties may not give diplomatic protection or bring an inter-state claim in respect of any investment dispute, within the terms of these treaties. Diplomatic protection (and inter-state claims) can only be brought in certain circumstances, such as where a Contracting Party does not abide by or comply with an award rendered by an arbitral tribunal.

Applicable law

Most of Jamaica’s investment treaties are silent as to what law(s) apply to the parties’ dispute (France, Germany, Italy, Netherlands, Korea, Switzerland, United States and United Kingdom BITs).

The Argentina, Spain and Indonesia BITs provide that the arbitral tribunal shall apply: (1) the terms of the BIT; (2) the laws of the Contracting Party involved in the dispute (including its rules on conflict of law); and (3) relevant principles of international law.

Similarly, the CARICOM-Costa Rica and the CARICOM-Dominican Republic FTAs call for the application of (a) the terms of the agreement and any other binding agreements between the parties; (b) the law of the host state; and (c) the rules and generally recognized principles of international law.

While the China BIT specifies the applicable law as including the terms of the BIT and international law, it does not specify whether the applicable law includes the laws of the Contracting Parties. Notably, the Argentina BIT specifies that the applicable law includes the terms of any specific agreement concluded in relation to an investment.

11. What is the status of this country’s investment treaties?

Jamaica

Like many small open economies, Jamaica has embraced investment treaties as a signal to trading partners that it respects the rights of foreign investors. Unlike its neighbors in Latin America, Jamaica (like most States in the Anglophone Caribbean) has not been involved in the often heated political resistance to the investment treaty regime among capital importing States. Very little has been said publicly or on the international plane about investment treaties or investment arbitration. It has not made any announcements to the effect that it will not renew existing treaties.

A significant number of Jamaica’s investment treaties are yet to enter into force, despite being signed for more than a decade

Practicalities of commencing an investment treaty claim against this country

12. To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?

Jamaica

Government entity to which claim notices are sent

Claim notices should be sent to the Chambers of the Attorney General and to the Ministry of Foreign Affairs. A copy may also be sent to the government ministry having a close connection to the subject matter of the dispute.

13. Which government department or departments manage investment treaty arbitrations on behalf of this country?

Jamaica

Government department which manages investment treaty arbitrations

International arbitration claims are handled by the Chambers of the Attorney General. Specifically, investment arbitration claims are likely to be handled by the International Law Division of the Chambers of the Attorney General.

14. Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?

Jamaica

Internal/external counsel

There is no indication that the Jamaican government engages external counsel in international arbitration matters. Investment arbitration claims are likely to be handled by the International Law Division of the Chambers of the Attorney General, with assistance from regional experts in international law.

Practicalities of enforcing an investment treaty claim against this country

15. Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.

Jamaica

Washington Convention implementing legislation

The International Investment Disputes Awards (Enforcement) Act 1967 gives the Washington Convention force of law in Jamaica.

16. Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.

Jamaica

New York Convention implementing legislation

The Arbitration (Recognition and Enforcement of Foreign Awards) Act 2001 gives the New York Convention force of law in Jamaica.

17. Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?

Jamaica

Legislation governing non-ICSID arbitrations

Under Jamaican law arbitration is governed by the Arbitration Act 1900. This is a colonial statute that is based on the even earlier English Arbitration Act of 1889. It does not reflect the modern approach to the settlement of transnational investment or commercial disputes. Efforts are currently underway to revise the present statute in line with international standards.

18. Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?

Jamaica

Compliance with adverse awards

All international arbitration claims that have been brought against Jamaica have been settled, with no subsequent enforcement in the courts. There is no publicly available information which suggests that Jamaica has failed to comply with an adverse arbitral award.

19. Describe the national government’s attitude towards investment treaty arbitration

Jamaica

Attitude of government towards investment treaty arbitration

The attitude of Jamaica towards investment treaty arbitration remains rather positive, even as its neighbours in Latin America have expressed hostility towards the current investment arbitration regime. As recently as 2013 the Jamaican Government signed investment treaties that incorporate investor-State arbitration provisions. The fact that no investment treaty claims have been brought against Jamaica (and no ICSID claim in over 40 years) has meant that investor-State arbitration has not been politicised, as it has become in other countries that are more frequently involved in investment treaty disputes.

20. To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?

Jamaica

Attitude of local courts towards investment treaty arbitration

The Jamaican courts have generally adopted a supportive and non-interventionist approach towards international arbitration. The courts have taken a deferential approach to arbitration and have sought to apply a modern approach to the interpretation of the 1900 Arbitration Act. The courts have never been called upon to enforce an investment treaty award against Jamaica. However, should such a case arise, the courts would no doubt look to the jurisprudence from other Caribbean jurisdictions.

The courts in the Caribbean region have affirmed the need for a non-interventionist role in international arbitration pursuant to bilateral investment treaties. Recently, the Caribbean Court of Justice (CCJ) affirmed the role of the courts as supporters of international arbitration, and acknowledged the value of arbitration in relation to the development objectives of Caribbean states. In this context, the CCJ noted that: ‘[I]nvestment treaties form an important feature of the modern economic jurisprudence and … they constitute an important developmental option for capital-importing developing countries such as those in the Caribbean. The bilateral investment treaty was developed to remedy the vulnerability of the foreign investor and ameliorate the conditions of their investments and the success of the treaty regime depends upon the acceptance and fulfillment by the host state of the legal obligations imposed by the treaty’ (British Caribbean Bank v Government of Belize).

National legislation protecting inward investments

21. Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.

Jamaica

National legislation

Substantive protections

Procedural rights

FET

Expropriation

Other

Local courts

Arbitration

The Constitution of Jamaica

No

Yes

No

Yes

No

National legislation protecting outgoing foreign investment

22. Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?

Jamaica

Relevant guarantee scheme

Qualifying criteria, substantive protections provided and practical considerations

 

There are no guarantee schemes available to Jamaican investors at this time.

Awards

23. Please provide a list of any available arbitration awards or cases initiated involving this country’s investment treaties.

Jamaica

Awards

There is no publicly available record of any investment treaty claim against Jamaica. However, Jamaica has been the respondent in three ICSID claims brought pursuant to concession contracts.

Alcoa Minerals v. Jamaica (ICSID Case No. ARB/74/2), 1975, Decision on Jurisdiction and Competence of July 6, 1975, 4 Yearbook Commercial Arbitration (Y.B. Com. Arb.) 206 (1979).

Kaiser Bauxite Company v. Jamaica (ICSID Case No. ARB/74/3), Decision on Jurisdiction and Competence, 6 July 1975, 1 ICSID Reports 301.

Reynolds v. Jamaica (ICSID Case No. ARB/74/4)

Pending proceedings

There are no pending investment treaty claims against Jamaica.

Reading List

24. Please provide a list of any articles or books that discuss this country’s investment treaties.

Jamaica

Conway Blake ‘Caribbean Court of Justice Imposes Limits on Anti-arbitration Injunctions’ (2013) (3) Debevoise & Plimpton Arbitration Quarterly.

C. Tietje, K. Nowrot and C. Wackernagel, ‘Once and Forever? The Legal Effect of a Denunciation of ICSID’ (2008) 74 Beitrage zum Trannationalen Wirtschaftenrecht .

Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective (2004).

Georges R. Delaume, ‘ICSID Arbitration in Practice’, (1984) 2 International Tax & Business Lawyer 58.

John Schmidt, ‘Arbitration under the Auspices of the International Centre for Settlement of Investment Disputes (ICSID): Implications of the Decision on Jurisdiction in Alcoa Minerals of Jamaica, Inc. v. Government of Jamaica’, (1976) 17 Harvard International Law Journa l 90.

Notes

1 Information on United States diplomatic relations can be found on the website of the United States Department of State: www.state.gov.

2 See Standard Chartered Bank v United Republic of Tanzania , ICSID Case No. ARB/10/12, Award, 2 November 2012.

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