Izvorni znanstveni članak
https://doi.org/10.65342/door.1.1.7
A Missed Opportunity: Procedural Evasion and Jurisdictional Gaps in the Mihaljević v. Croatia ICSID Case
Jadranka Osrečak
orcid.org/0000-0003-0156-8725
; Državno odvjetništvo Republike Hrvatske, Zagreb, Hrvatska
Sažetak
This article provides a critical analysis of the procedural and jurisdictional issues in Marko Mihaljević v. Republic of Croatia, an ICSID arbitration case that was ultimately dismissed on the grounds of the Claimant’s Croatian nationality. While the Tribunal reached the correct outcome by declining jurisdiction, its path to it remains problematic. The article scrutinizes the Tribunal's decision to deny Croatia's application for summary dismissal under ICSID Arbitration Rule 41(5), arguing that it set an unduly high threshold for establishing the burden of proof by characterising fundamental jurisdictional defects—specifically, the claimant's dual nationality and the invalidity of the Donation Agreement purporting his alleged investment—as complex factual disputes unsuitable for summary determination. Furthermore, the article investigates the Tribunal's failure to address the Claimant's novel and potentially abusive "reaffirmation of consent" theory, which proposed that an individual investor who was disqualified from ICSID jurisdiction at the time of his consent to arbitration of the dispute on grounds of nationality could retroactively cure the jurisdictional defect by changing his nationality and “perfecting” his consent. By failing to address this untenable theory, the Tribunal has missed the opportunity to affirm the jurisdictional boundaries of the ICSID Convention as clearly set out in Article 25 with respect to individual investors. Finally, the article questions the effectiveness of the Secretary-General's screening power under Article 36(3) of the ICSID Convention, using the Mihaljević case to argue for a more robust initial gatekeeping function to protect States from claims that are manifestly outside the Centre's jurisdiction. The case serves as a cautionary tale about the potential for the exploitation of procedural mechanisms, highlighting the need for tribunals and the ICSID Secretariat to actively prevent abuses of process and, hence, protect States from frivolous claims and excessive costs.
Ključne riječi
ICSID arbitration, preliminary objection, consent, abuse of process
Hrčak ID:
338890
URI
Datum izdavanja:
8.12.2025.
Posjeta: 554 *