Sovereignty And Protection Of Foreign Investments

Sovereignty And Protection Of Foreign Investments In Saudi Arabia

Contents

3.1. Overview.. 1

3.2. Introduction. 1

3.3. State Sovereignty and Sovereignty over Natural Resources. 3

3.4. Sovereign Rights and Obligations over Natural Resources. 7

3.5. ICSID Protection vis-à-vis KSA Commercial Laws. 8

3.6. ICSID Weaknesses. 11

3.7. Arbitration from the KSA Legal Framework Purview.. 13

3.8. Settlement of Oil Disputes. 14

3.9. KSA Arbitration Vis-à-vis International Arbitration Treaty Standards. 17

4.0. Special Treatment of Foreign Investors. 18

3.11. The New KSA Arbitration System versus the Old System.. 20

4.1. Minimum Standards of Treatment 21

4.2. Enforceability of Arbitral Awards. 23

3.3. Conclusion. 25

 

3.1. Overview

Pursuant to the provisions of Article 25(4) of the International Center for Settlement of Investment Disputes (ICSID) as well as the Royal Decree No., M/8 Dated: 22/3/1394 H, all investments disputes in the KSA are handled within the ICSID framework with an exception to oil disputes.[1] This chapter attempts to explain how oil investments are protected and how oil disputes are settled within the KSA legal framework law. Exclusively, the chapter will seek to answer the following three questions: How can non-Saudis and Saudis alike protect their oil investments? Can they arbitrate? Does the KSA domestic laws provide for arbitration for disputes arising from oil investments? In doing so, the chapter will give substantial attention to the essentially sensitive issue of sovereignty and protection of foreign investments in the KSA. This will be addressed within the context of the interplay between international public law and the KSA legal frameworks governing oil investment disputes.

3.2. Introduction

The rights and interests of foreign investors in KSA as well in all other host states are protected by various legal frameworks falling under the umbrella of the International Investment Agreements (IIAs).[2] These IIAs ensure that host nations accord substantial protection against legal and financial exploitation by rigid and biased domestic legal frameworks by providing mutual rewarding “investor/state” arbitration infrastructures that empowers the foreign investor to demand the inclusion of arbitration clauses during the signing of investment contracts with host nation entities.[3] No doubt, the wisdom behind such IIAs emanates from the acceptance that investment disputes are inevitable. As a matter of fact, chronicling the adjudication of infractions arising from investment activities across the globe reveals that all manner of disputes have been experienced.[4]

Arguably, these disputes have brought into existence a gamut of legal jurisprudence as authorities’ attempt to mitigate the effects of such disputes. Today the dispute arbitration jurisprudence has grown in leaps and bounds to accommodate a wide range of investment disputes that initially were considered the preserve of domestic legal frameworks. Some of the most notable of these IIAs are ICSD, Multilateral Investment Guarantee Agency (MIGA), Overseas Private Investment Corporation (OPIC), United Nations Commission on International Trade Law (UNCITRAL), New York Arbitration Convention, as well a barrage of bilateral agreements between trade partners.[5] Even so, the jurisdiction of these IIAs is limited to the extent that they do not encroach on national sovereignty and stability.[6] It is therefore not a surprise that majority of them have got provisions which still grant the contracting states the leeway to choose which investment disputes should be handled by the IIAs and which should be left to the preserve of the domestic courts.[7]

Essentially, the KSA is party to a number of these IIAs. Specifically, it has entered into both bilateral and multilaterals between Gulf States as well as with western countries, notably the United States.[8] From a bilateral standpoint, the KSA is signatory to the OPIC, a regional arbitration treaty that allows for arbitration of investment disputes arising between Saudi government or its agencies and the American investors.[9] Other notable bilateral investment agreements are those with Italy, Germany, China, Egypt, and Philippines.[10]

From multilateral standpoint, the KSA ratified the ICSID back in 1980 meaning that it relinquished its authority to handle investment disputes particularly those involving foreigners and Saudi nationals and/or state agencies.[11] The KSA is a member of the Gulf Cooperation Council as well as an observer to the Energy Charter Treaty.[12]

3.3. State Sovereignty and Sovereignty over Natural Resources

The issue of state sovereignty vis-à-vis the exploration and exploitation of oil, gas and other valuable minerals has over the years drawn considerable debate among the industry players. Specifically, among the developing nations where the lion share of such minerals is located there has been a beehive of activities and debates towards the legal and administrative protection accorded to foreign multinational companies representing developed nations. [13] Vielleville and Vasani (2008) argue that three core factors have influenced this lucrative yet sensitive realm of international trade.[14] They assert that the creation of a strong Union of nations has fostered a nascent environment that gives developing nations space to assert themselves in the global economic arena.[15] They also opine that the demise of the colonial York that burned many developing nations played a critical role in so far as the enlargement of the international community is concerned.[16] Lastly, they opine that the skyrocketing of the prices of primary resources such as “oil, gas, and other minerals led to an uneasy interdependence between foreign investors and host States,”[17] played a very important in revitalizing the economic capabilities of many developing world and most importantly the tilting of the global balance of power. Interestingly, the developed countries through their financially able multinationals have made in-roads across the developing world territories in search of these lucrative minerals.

Initially, the multinationals caught the developing countries totally unprepared in terms of the required capital to exploit these immense deposits of valuable minerals, hence they succeeded in forcing the developing nations into signing lengthy and “hard-to-reverse” concessions some of which extended to sixty years. As expected, the prime share of such concessions went to the multinationals with the developing nations getting very little for their own wealth. This situation led to the build-up of tension which reached its peak in the mid 20th century. Ideally, the developing nations complained that such concessions were not only exploitive but were also an abuse of their national pride and sovereignty and hence there was an urgent need for them to be renegotiated or even terminated depending on the “mood” of the government of the day. For instance, in Middle East where the large oil companies can be found host nations invoked their domestic law in trying to legalize such nationalization practiced, with some states arguing their domestic law considered concessions as administrative contracts” and therefore subject to regular administrative changes.[18] The ARAMCO case abundantly explained in the previous chapters underscores this argument. In the case the Saudi government argued that it could alter the terms and conditions pertaining to oil concessions at will, given that the Saudi law recognized them as administrative contracts.[19] However, such claims were dismissed by the arbitral tribunal on grounds that like nay other private contract, oil concessions could be altered by the host states without the consent of the other parties.[20]  Consequently, there were innumerable cases of nationalization of large oil industries controlled by overseas entities.

Recently, there has been a growing wave of “statization” were host countries opts to use “unethical” means to force multinational companies running the oil industry to agree ceding some ownership of such industries.[21] A notable case is that of Venezuela where the government announced its desire to take over more than thirty privately owned oil fields.[22] Such, radical measures have resulted into a series of litigations/arbitrations where the estranged private companies perceive such radical measures as uncalled-for, while the host countries reason that oil industry forms a great chunk of their national identity and sovereignty.

The United Nations has played a key role in ensuring that these trends are closely monitored within the provisions of the law. It has achieved this through a series of resolutions that seek to recognize the sovereignty as well as the principles of good faith as the two key legal hurdles that must be mutually dealt with in international investment engagements.[23] The first in this series was Resolution No. 626 (VII) of December 21, 1952 that acknowledged the right of a people to sovereignty and exploitation of their own natural resources. Resolution No. 1803 (XVII) of December 14, 1962 that affirmed nationalization as a necessary measure but could only be carried out “for public purposes, security or national interest” and most importantly, the private investors would be entitled to “appropriate compensation” as per both the domestic and international law provisions.[24] Resolution No. 3201 (S-VI) of May 1, 1974 whose Article 4(e) gave states the authority to nationalize their resources without any due pressure to achieve such as long all the parties concerned were fully consulted.[25]

The other one was Resolution No. 3281 (XXIX), dated July 26, 1974.10 that ensured the host nations acted within the provisions of good faith when carrying out nationalization activities.[26] This resolution together with others that came before and after it sought to legalize nationalization processes on the basis of national sovereignty, however they enforced the requirement that private entities should be fully compensated.[27] By extension, the provisions of this regulation are also enforceable today given that, host states are expected to accord foreign investors together with their investments “minimum standards of protection” as espoused in the principle of good faith that most domestic laws are expected to conform to.[28]

As per the UN resolutions it is apparent nations with mineral wealth should not be coerced into ceding some of their sovereign rights regarding the exploration and mining of such wealth. In this regard nationalization is a positive step towards such sovereignty and economic independence; however, host states should not take advantage of such to harass foreign investors who have already sunk huge chunks of their money in the mineral industries. In this regard the principle of good faith should apply.

3.4. Sovereign Rights and Obligations over Natural Resources

The end of the 20th century saw a shift in ideology where the already nationalized oil industries started being privatized courtesy of the sprouting bilateral and multilateral treating occasioned by the urge to create a friendly investment environment. Perhaps as a result of frustrations on the part of the developing nations due to dwindling profits from the bilateral and multilateral treaties created at the end of the 20th century there has been a reverse to the trend witnessed in the mid 20th century. Again, the plummeting oil prices occasioned by global market shocks as well as crises particularly in the Middle East led to significant reduction of oil revenue. Needless to say, this scenario greatly dented states’ overall spending amidst rapidly growing population and demand for more consumer goods and services. Consequently, this trend occasioned the clamor for the reevaluation of states’ capability in running the lucrative industry. In mitigation, pundits hypothesized that private entities would be the best positioned in managing the industry.

In the KSA for instance, the response to these ever changing economic and industry-specific trends has not been different.[29] Following the clamor for privatization of key economic sectors, the KSA government instituted a number of administrative reforms aimed at liberalizing the domestic economy particularly n the oil industry pursuant of the Foreign Investment Law of 2000.[30] Ideally, this law allowed for a wide range of privileges which were initially unavailable to foreigners. For instance, foreigners were allowed to run fully owned subsidiaries and branch offices in the KSA as well as the ownership of real estate in areas away from the two cities of Medina and Makah. Again, as highlighted in chapter 2, for the first time foreign investors would remit the proceeds of their investments back to their home countries.

No doubt, these are phenomenal changes given that initially they were only meant for Saudis. Things even took a better turn upon the revising of the so called “negative list” by the Supreme Economic Council in 2003. This revision opened up to foreign investment critical economy sectors such as education, telecommunication, insurance, as well as trading activities.[31] Notable projects launched following this liberalization includes the ambitious gas project that is dubbed as the greatest of its kind in the Kingdom as well as in the region once it is completed. The Kingdom has also embarked on a number of desalination projects aimed at increasing its overall energy production capacity to cater for the increasing domestic market. Moreover, there are a number of petrochemical projects that have been kick-started to tap in the immense oil resources in the Kingdom. All this has been made possible through the partnership of the Saudi government and its nationals on one part and foreign entities on the other.[32]

3.5. ICSID Protection vis-à-vis KSA Commercial Laws

As highlighted in the previous chapters in this series, the King of the Kingdom of Saudi Arabia through the Royal Decree No., M/8 Dated: 22/3/1394 H approved the KSA’s accession to the International Center for the Settlement of Investment Disputes (ICSID) as a sign of goodwill in settling investment disputes through conciliation or arbitration, particularly those involving foreigners and Saudi nationals and/or state entities.[33] Even so, pursuant to the provisions of Article 25(4) of the ICSID,[34] KSA did not relinquish all its authority over investment disputes resolution.[35] Article 25(4) of the ICSID specifies that:

Any Contracting State may, at the time of ratification, acceptance or approval of this Convention or at any time thereafter, notify the Centre of the class or classes of disputes which it would or would not consider submitting to the jurisdiction of the Centre. The Secretary-General shall forthwith transmit such notification to all Contracting States. Such notification shall not constitute the consent required by paragraph (1).

Consequently, in what seems as a direct reaction to the provisions of this article, the KSA used the same executive order (Royal Decree No., M/8 Dated: 22/3/1394 H) to formally specify the “the class or classes of disputes” that “it would not consider submitting to the jurisdiction of the Centre”. This is  succinctly stated explicitly by the following words that, the “KSA reserves the right not to raise issues relating to oil in the International Centre for Settlement of Investment Disputes to be resolved either by conciliation or arbitration.”[36] For all intents and purposes, this provision has one clear meaning that: All investments disputes in KSA are covered under the ICSID jurisdiction except those involving oil or as otherwise stipulated by any other valid law or decree as it will be explained later in this chapter. For instance, Section 3 of the KSA Foreign Capital Investment Law that was enacted in 2000 specifies that, matters that have significant impact on the national security and economic policies are to be kept away from foreigners.[37] As will be elaborated later in this chapter, areas covered under this provision include oil industry, military industry, real estate in the areas around Medina and Mecca, information and publishing, as well as trading.[38]

Interpreted together (Article 25(4) and part of Royal Decree No., M/8 Dated: 22/3/1394 H) these two clauses give contracting states (KSA) the leeway to make uncensored decisions on what to submit to the ICSID jurisdiction and what to leave under the domestic judicial system. The terms “class or classes of disputes” in Article 25(4) of the ICSID for instance, should be interpreted literally to mean virtually any investment dispute category depending on a contracting state’s preferences. Consequently, these categories significantly differ across contracting states depending on the nature of the national values embraced. For instance, in the case of the KSA all disputes emanating from oil are not dealt with by the domestic judicial system. Government agencies are also not supposed to submit disputes to the ICSID arbitration jurisdiction unless given the green light to do so by the Saudi Council of Ministers.[39] On the other hand, the terms “the right not to raise issues relating to oil in the International Centre for Settlement of Investment Disputes to be resolved either by conciliation or arbitration” as stated in the Royal Decree No., M/8 Dated: 22/3/1394 H are straight forward and should be interpreted in the same manner that, all oil investment “issues” should not be subjected to arbitration under the Convention’s jurisdiction. Even so, as it will be elaborated later in this chapter, this should not be taken to mean an outright ban on arbitration for matters arising form oil investments in the KSA.

3.6. ICSID Weaknesses

To demonstrate that the Convention is not an explicit authority for arbitration but an implied one, there are a number of articles that casts fears as to the applicability of arbitration as a source of recourse to the settlement of investment disputes emanating between contracting states and nationals and/or agencies of other contracting states.[40] For example, owing to the provisions of the Preamble as well as Article 25(1) of the Convention the contracting it is arguable that contracting states are not bound by the mere ratification of the treaty to submit investments disputes for arbitration.[41] The preamble states that:

…Recognizing that mutual consent by the parties to submit such disputes to conciliation or to arbitration through such facilities constitutes a binding agreement which requires in particular that due consideration be given to any recommendation of conciliators, and that any arbitral award be complied with; and Declaring that no Contracting State shall by the mere fact of its ratification, acceptance or approval of this Convention and without its consent be deemed to be under any obligation to submit any particular dispute to conciliation or arbitration…,[42]

While on its part Article 25(1) stipulates:

The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.[43]

Interpreted together, these two critical clauses of the Convention leads to the postulation that the Convention is not fully binding as contracting states can refuse to honor arbitration clauses or arbitration agreements on the grounds that they are in contravention of the national values and sovereignty irrespective of whether such agreements fall within the provisions of Article 24(5) of the Convention.[44] After all, “the mere fact of its ratification” is not enough to warrant arbitration unless “the parties to the dispute consent in writing to submit to the Centre”.[45]  For instance, though the KSA fully subscribes to the Convention’s jurisdiction in matters other than those covered by Article 25(4) and as elaborated by various KSA commercial laws, government agencies are not permitted to seek arbitration unless they get an express permission to do so from the Saudi Council of Ministers courtesy of the provisions of Article 1 of the Arbitration Law which succinctly stipulates that:

Government bodies may not resort to arbitration for the settlement of their disputes with third parties except after approval of the President of the Council of Ministers. This provision may be amended by a Resolution of the Council of Ministers.[46]   

Another phenomenal shortcoming that attests to the above postulation that the Convention “is not an explicit authority to arbitration but an implied one” is the conspicuous silence in delineating the modalities of submitting consent for arbitration whether during contract signing or even after a dispute arises.[47] Perhaps the drafters of the Convention wanted to test the goodwill on the part of the contracting states to enforce arbitration obligations within their jurisdictions’. In this regard, and bearing in mind the provisions of the Preamble to the Convention there has been significant uncertainty on whether the mere ratification of the Convention automatically binds host states to arbitration procedures except in situations where the disputes involved are covered by the provisions of Article 25(4) of the Convention.[48] This uncertainty has resulted into a number of “mitigation” measures. For instance, it has been a “normal” practice among actors to justify consent if the parties to an investment contract exchanged letters justifying such, included arbitration clauses during the signing of a contract, or even agrees to pursue arbitration upon the happening of a dispute.[49] Again, it is also expected that as part of the ratification process as well as the subsequent entrenchment of the Convention into the domestic legal frameworks, contracting states are expected to legislate laws that explicitly specify the process of expressing consent.[50]

3.7. Arbitration from the KSA Legal Framework Purview

As outlined in the pervious chapters the Convention is meant to “encourage private foreign investment in developing of investment disputes between a contracting state and a national of another contracting state.”[51] Even so, with this level of uncertainty the very humble objectives it espouses may not be realized all the time. Tellingly, the KSA legal framework does not provide a clear methodology for pursuing arbitration as a form of investment dispute resolution recourse in the event of an investment dispute where a foreign investor is party. Both the Arbitration Law and its Implementing Rules conspicuously misses this critical aspect – fails to offer an explicit delineation on consenting to arbitration through the Convention.[52] As a matter of fact, the enforceability of an arbitration clause is cast into doubt by the requirement that the parties should deposit a duly signed arbitration instrument with the authority handling the arbitration detailing their names and most importantly, their consent to arbitration in the event a dispute arises. It is this instrument that validates the arbitration.[53] In fact as of 2009, the KSA has not submitted any case to the Convention for arbitration – a trend that draws both negative and positive connotations in regard to the KSA willingness to honor its obligations to the Convention.[54]

3.8. Settlement of Oil Disputes

Article (3) of the Mining Investment Law stipulates that, “Without prejudice to the provisions of Article (2) of this Law, the following shall be excluded from its provisions: (1) Petroleum, natural gas and derivatives thereof, and; (2) Pearls, corals and similar organic marine substances.” Given that the Convention was specifically meant to encourage mutual settlement of “investment disputes between a contracting state and a national of another contracting state”,[55] it is wise to argue that the exclusion of oil related investment disputes from the Convention’s jurisdiction was justified, after all, oil investments disputes (if any) should only involve Saudi nationals and not foreigners.

In response to the question of whether oil investment disputes can be arbitrated it is arguable that under the KSA legal framework which oil disputes falls in, specifically the Arbitration Law only hudoud and iaan matters can not be subjected to arbitration.[56] In this regard, though in part, Article 2 of the Arbitration Law states that, Arbitration shall not be accepted in matters wherein conciliation is not permitted…,” oil does not fall in this category.[57] Essentially, the hudoud category includes crime such as adultery, murder, robbery, drunkenness, injury as well as other personal issues as provided for by the Holy Quran.[58] While on the other hand, iaan category includes litigation processes that result in divorce of married spouses due to irreconcilable crimes.[59]

Basing on these provisions it is only fair to assert that indeed oil investments disputes can be arbitrated under the KSA legal framework as long as the parties embroiled in such dispute have consented to arbitration pursuant to Article 7 of the Arbitration Law.[60] In interpretation of the provisions of this article (7) which states that, “[w]here parties agree to arbitration … the subject matter of the dispute may only be heard in accordance with the provisions of this Law”,[61] it is clear that law does not bar arbitration to oil investment disputes. When read together with the Royal Decree No., M/8 Dated: 22/3/1394 H as well as Article 2 of the Arbitration Law the provisions of this article gives the Saudi legal framework mandate to handle oil related disputes.[62]

In respect to the question about the applicability of arbitration on oil disputes by foreigners the answer should be short, that, this is not legally possible within the KSA arbitration system, or better still, it is not applicable. Pursuant to the provisions of Article 2 of the Arbitration Law, it is arguable that foreigners do not have the rights to arbitrate in the event they are involved in oil investment related disputes (which is not possible based on the provisions of Article 3 of the Foreign Capital Investment Law).[63] The fact that, the Saudi law bars foreigners from indulging in any oil related investments makes them “legally unfit” to pursue arbitration as a form of dispute resolution. Precisely, it is stipulated in the article (2) that:

Arbitration shall not be accepted in matters wherein conciliation is not permitted. Agreement to resort to arbitration shall not be deemed valid except by those who have the legal capacity to act.[64]

Understandably, the rights to arbitration are not automatic for all investors in the KSA – it is a preserve of selected persons who qualifies the set criteria by the competent authorities. For example, minors are not allowed to pursue arbitration recourse for settling investment disputes given they do not pass the “full Legal capacity” requirement outlined in Article 2 of the Arbitration Law Implementing Rules.[65] Moreover, even their parents, guardians, or endowment administrators are not allowed to opt for arbitration unless in situations that the competent court gives consent.[66] In extension, it is apparent that since the law bars foreigners from engaging in oil investments activities they cannot arbitrate in such matters – they can only arbitrate in matters that directly touch on their activities in the KSA.

There is no doubt that oil disputes can be arbitrated in KSA. Even so, the Arbitration on which all arbitration processes are based on is silent about this. However, given that oil does not fall under the categories of matters barred from arbitration and that it is barred from the ICSID arbitration jurisdiction it is obvious that it can only be handled by the KSA judicial system. Even so, basing on the fact that the KSA lacks a domestic arbitration center all arbitrations are handled at the GCC arbitration center located in Bahrain. By virtue of its membership to the GCC and basing on the fact that the GCC arbitration is largely based on Sharia’h law provisions with minor parts borrowed from western jurisdictions awards rendred thereof are wholly enforceable under the KSA legal system.[67]

3.9. KSA Arbitration Vis-à-vis International Arbitration Treaty Standards

As noted earlier in chapter 2, litigations in Saudi Arabia just like in many jurisdictions may take a long time, consume a lot of money, and in most times it is very hard to predict their outcomes.[68] The situation becomes more complex when such litigations involve nationals and/or agencies from other countries that do not practice Sharia’h law. As a matter of fact, the application of what Sayen (1987) refers as “ancient legal rules” to some of the common commercial litigations involving complex procedures poses real risks to the Kingdoms’ quest for being the leading business hub in Middle East given that potential investors usually weigh the potential benefits against the expected risks of an investment environment before committing their monies for investment.[69]

Moreover, Sayen (1987) argues that though the judges who serve in KSA Sharia’h and governmental boards courts are qualified and impartial their efficiency is greatly curtailed by the huge backlog of cases as the Saudi judicial system is still understaffed, under-equipped, as well as under-managed.[70] As matter of fact, there have been many complaints from foreign investors who feel that the system is still young to handle complicated investment disputes.[71] Cases involving complex financing networks may pose real challenges to the domestic legal system particularly on matters touching on the security of goods, transactions, funds, as well information in the age of information technology.[72]

In light of this information there is no doubt that the credibility of the process of settling oil investment disputes in the KSA as well as the Kingdom’s commitment to embracing the set good faith standards of international law particularly the international arbitration treaties is brought to question.[73] Notwithstanding that most international arbitration treaties grant contracting states a leeway to choose which categories of investment disputes to submit to IIAs jurisdictions the manner in which the KSA legal system functions poses many doubts to foreign investors particularly those outside the GCC jurisdiction. Even so, basing on Vielleville and Vasani (2008) argument that, “[t]he rights granted to foreign investors under domestic law are standalone protections guaranteed by the State to all foreign investors and do not require a special agreement in order for them to be valid,”[74] it can be opined that perhaps the implied minimum protection provided for by the barrage of KSA commercial legislations is enforceable and hence a true alternative for international public law.

4.0. Special Treatment of Foreign Investors

As noted in the preceding chapters as well as earlier on in this chapter foreigners are only allowed to engage in investment activities that are not featured in the “negative list” issued by the Council of Saudi Ministers.[75] For instance, Article 3 of the Foreign Capital Investment Law stipulates that, “[t]he Supreme Economic Council Licensed shall issue a list specifying the types of activities from which foreign investors are excluded.”[76]Essentially, this list comprises of at least 22 investments areas spread across the Kingdom’s investment opportunities and that are considered the preserve of Saudi nationals and/or Saudi government agencies and therefore out of bounds to foreigners. Precisely, the investment activities range from “exploration, drilling and production of oil” to educational services, insurance services, retail and wholesale trade, to telecommunication services.”[77]

Even so, acting on the urge to streamline the service sector so as to meet the demands of the rising population majority of whom is composed of youth, the Supreme Economic Council has over the years been reviewing this list. This has led to the whole or part scrapping of some investment activities from the list. For instance, foreigners can now legally invest in some critical areas of the telecommunication, educational, publishing, and insurance sectors that have already been cleared for foreign investment by the Council.[78] No doubt, this regular revision of the “negative list” by the Council is a positive step toward making the Saudi investment environment more equitable and vibrant.

In regard to protection on foreign investments the KSA does not restrict the transfer of funds from investment profits to home countries. Foreigners just like Saudis can duly dispose of their investments in a way they deem as long as it does not contravene the regulations stipulated by various Saudi commercial laws.[79] In fact, there are no checks on the amount capital flowing in or out of the Kingdom on payment of debts, profits, dividends, interest payment, etc; however, foreigners are required to part with up to 45% of their total revenue to cushion tax obligations for joint venture investments.[80]

3.11. The New KSA Arbitration System versus the Old System

Unlike the old system the new Saudi arbitration system is based on both the Sharia’h and western world legal frameworks. Precisely, two striking features are evident in this system of arbitration: (a) non-binding conciliation for the parties which may be likened to amiable composition where the arbitration award is perceived as binding if only its accepted by both parties involved in a dispute, and (b) arbitration where the dispute is put to rest by the award decided thereof as long as it is binding to all the parties involved in the dispute.[81] These two features which have both Sharia’h and western world features have arguably broadened the concept of arbitration from a Saudi context.

This is argument is attested to by the fact that under the new arbitration system arbitration clauses as well as arbitration agreements are considered valid and hence enforceable, a thing that conspicuously missed in the old arbitration system.[82] For instance, under arbitration from arbitration clauses it is assumed that arbitration is enforceable if the parties to a contract included a clause allowing for arbitration in the event a dispute arises while under arbitration agreement parties are allowed to proceed with arbitration if they agree so upon a certain dispute.[83] This is courtesy of the provisions of Article 1 of the Arbitration Law that succinctly states that:

It may be agreed to resort to arbitration with regard to a specific, existing dispute. It may also be agreed beforehand to resort to arbitration in any dispute that may arise as a result of the execution of a specific contract.[84]

4.1. Minimum Standards of Treatment

In regards to the minimum protection accorded to investors within the KSA, the new arbitration system has done a commendable job at least when it is compared to the old system.[85] The new arbitration system clearly delineates between institutional and ad hoc arbitration procedures, national and international arbitration procedures, as well as the difference between arbitration procedures that are based on arbitration agreements and clauses.[86] For instance, under the national arbitration procedures where oil investment disputes fall, a number of arbitration authorities exist. They include: the labor courts, the Sharia’h Courts, the Commission for Financial Titles, the Board for Settlement of Commercial Disputes, as well as the Diwan Al-Mazelem.[87]

Irrespective of the authority handling a dispute, the central premise is that such authority must supervise and control all the stages and happenings emanating from the arbitration process.[88] In this regard the authority must take all the details pertaining to such disputes as well as the consent form both parties to taking their dispute to arbitration.[89] Even so, such authorities are not permitted to delve into the content of the dispute but only to oversee the smooth implementation of the arbitration tools so as to ensure a smooth process.[90] The executive officer (secretary) of the authority handling arbitration acts as the chief administrative officer and interpreter of the rules and regulations of the Arbitration Act and its Implementing Rules.[91] For instance, in the event the parties fail to appoint the arbitrators it is the duty of the authority secretary to appoint arbitrators if requested to do so by either party.[92]

This is pursuant to the provisions of Article 10 of the Arbitration Law which succinctly stipulates that:

Where parties fail to appoint the arbitrators or one party abstains from appointing the arbitrator(s) who are to be chosen solely by him, or where one arbitrator or more refuses to work, or withdraws, or a contingency arises which prevents him from undertaking the arbitration or if he is dismissed and there is no special stipulation by the parties, the authority originally competent to hear the dispute shall appoint the arbitrator(s) as necessary, upon request of the party interested in expediting the arbitration, in the presence of the other party or in his absence, after being summoned to a session to be held for this purpose. The number of arbitrators appointed shall be equal or complementary to the number agreed upon among the parties. The decision in this respect shall be final.[93]

Again, the secretary to the authority ensures that the arbitration process takes place within the set time frame and considers deadline extension requests if there is reasonable evidence that such extension is warranted.[94] Upon the termination of the arbitration process the authority is also expected to register awards granted thereof as well as prepare the ground for any appeal to such awards.[95] Moreover, the law is more strict on misuse of the rights granted to the disputing parties by safeguarding against the malicious dismissal of an arbitrator appointed by either of the disputing parties or even appointed by the authority that has the immediate jurisdiction over the arbitration unless in situations that both the disputing parties agrees to such.[96]

As a sign of good will on the part of the KSA government to subscribe to the provisions of the international arbitration treaties, the law removed the powers to grant state agencies permission to pursue arbitration from the legislative authority and granted them to the Council of Ministers.[97] Initially, such powers were only vested on the Saudi legislative authority. By doing so, the law induced more flexibility and efficiency on the KSA arbitration system. This postulation is based on the fact that getting the legislative authority to issue such permission may take a lot of time as opposed to a Council of Ministers through its President who can do so easily and fast.[98]

4.2. Enforceability of Arbitral Awards

In regard to the enforcement of the award rendered thereof by the arbitral tribunal it is stipulated in Article 19 of the Arbitration Law that the authority with jurisdiction to handle the dispute should allow for enough room for any objection form either party.[99] In the event there is no objection forthcoming the authority is obligated to ensure that the award does not violate any public policy.[100] To achieve this, the authority is mandated to review the award to ensure that its enforceability is not hindered by any hidden legal hurdle, though the regulations are silent on the extent of such review.[101] Even so, the regulations are unclear in regard to an appeal to a higher authority in the event the authority overseeing the arbitration of a certain dispute dismissed objections from either of the parties regarding the enforceability of the award rendered thereof.[102] Under normal circumstances, an arbitral award may not be enforced if the overseeing authority is of the opinion that the arbitrators were not impartial, or if key arbitration procedures were not followed as provided for by the law. Perhaps this one of the major unique features of the Saudi arbitration system vis-à-vis the state of things in other countries.[103]

Moreover, so as to ensure efficiency and impartiality during arbitration, the Arbitration Law stipulates that arbitrators chosen by the parties thereof must be well versed with Sharia’h law as well as Saudi commercial laws.[104] To avoid biasness, such arbitrators should also be male of Saudi nationality or to some extent experts’ professing Muslim faith.[105] Again, the numbers of such arbitrators must be odd, in this case they are usually three to ensure easy ruling and grant of arbitral award since it is determined through majority vote.[106] Persons selected as arbitrators should be of high moral integrity and should not have committed or found guilty of hudoud crimes at any time of their lives.[107] Most importantly and as earlier on hinted the process of arbitration is closely monitored by the competent authority with the original mandate to listen to the dispute.[108] This ensures that no party digresses from the provision hence improves the chances of acceptance of the arbitral award decided thereof upon the termination of the arbitration process.[109]

3.3. Conclusion

The KSA commercial laws, particularly those dealing with arbitration of investment disputes are silent on the settlement of oil disputes. Its exclusion from ICSID jurisdiction casts doubts as to whether disputes emanating from it can be arbitrated and if so how. In regard to this dilemma it is hoped that this chapter has provided a clear answer to such. Precisely, oil disputes can be arbitrated of course not by international arbitration treaties but by the KSA judicial system. This is because oil is considered as a critical facet of the KSA economy, national identity and sovereignty. Conclusively, the new arbitration system is far much in harmony with the internal laws particularly on matters of enforcement of arbitral awards as well as consenting to arbitration through either arbitration clauses and/or arbitration agreements. The fact that the overseeing authority is charged with the responsibilities of ensuring that all procedures are strictly followed make increases the probability of awards rendered thereof being successfully enforced.

[1] Article 25(4) of the ICSID, and; Royal Decree No., M/8 Dated: 22/3/1394 H.

[2] Newcombe, A. & Paradell, L. (2009). Law and practice of investment treaties standards of treatment, Kluwer, p.1.

[3] Newcombe, A. & Paradell, L. (2009). Law and practice of investment treaties standards of treatment, Kluwer, p.30.

[4] Newcombe, A. & Paradell, L. (2009). Law and practice of investment treaties standards of treatment, Kluwer, pp.24-25.

[5] Newcombe, A. & Paradell, L. (2009). Law and practice of investment treaties standards of treatment, Kluwer, pp.23-30.

[6] Newcombe, A. & Paradell, L. (2009). Law and practice of investment treaties standards of treatment, Kluwer, p. 26.

[7] Newcombe, A. & Paradell, L. (2009). Law and practice of investment treaties standards of treatment, Kluwer, pp.25-30.

[8] Shoult, A, (ed.) (2006). Doing business with Saudi Arabia (3rd ed.). London: GMB Publishing, p.110.

[9] Shoult, A, (ed.) (2006). Doing business with Saudi Arabia (3rd ed.). London: GMB Publishing, p.110.

[10] Shoult, A, (ed.) (2006). Doing business with Saudi Arabia (3rd ed.). London: GMB Publishing, pp.110, 115.

[11] Al Ahdab, A.H. (1990). Arbitration with Arab countries. Kluwer law and Taxation Publishers, p.605.

[12] Saudi Arabia, (July 2008).  Arbitration in the Middle East Norton Rose Group, retrieved August 20, 2010, from: http://www.nortonrose.com/knowledge/publications/pdf/Arbitration%20manuals/Middle%20East/file25752.pdf?lang=en-gb/

[13] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.1.

[14] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.1.

[15]Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.1.

[16] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.1.

[17] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.1.

[18] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.9.

[19] 27 ILR at p. 171 (1958).

[20]Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.

[21] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.2.

[22] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.2.

[23] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.3.

[24] , Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.4.

[25] G.A. Res. 3201, 6th Special Session, GAOR, Supp. (No. 1), U.N. Doc. A/9559 (1974).

[26] G.A. Res. 3281, 29 GAOR, Supp. (No. 31), UN Doc. A/9361 (1974).

[27] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.5.

[28] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.8.

[29]Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.98.

[30]Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.98.

[31](February 3, 2003).  Kingdom opens up new sectors to foreign investors, Saudi Gazette.

[32] McDowall, A. (February 15, 2002). Seizing the initiative. MEED, p.4.

[33] Royal Decree No, .M/8 Dated: 22/3/1394 H.

[34] The article grants contracting states a leeway to leave some classes of disputes under the jurisdictions of their respective national laws.

[35] Shreuer, C.H. (2001). The ICSID Convention: a commentary: A commentary on the Convention on the … Cambridge University Press, p.113.

[36] Royal Decree No., M/8 Dated: 22/3/1394 H.

[37] El Sheikh, F.R.A. (2003). The legal regime of foreign private investment in Sudan and Saudi Arabia, Cambridge University Press, p.41.

[38] El Sheikh, F.R.A. (2003). The legal regime of foreign private investment in Sudan and Saudi Arabia, Cambridge University Press, p.41.

[39] Saudi Arabia, (July 2008).  Arbitration in the Middle East, Norton Rose Group, p. 2.

[40] Preamble and Article 25(1) of the ICSID Convention.

[41]Shoult, A, (ed.) (2006). Doing business with Saudi Arabia (3rd ed.). London: GMB Publishing, p. 111.

[42] Preamble and Article 25(1) of the ICSID Convention.

[43] Preamble and Article 25(1) of the ICSID Convention.

[44] Preamble and Article 25(1) of the ICSID Convention.

[45] See, the Preamble and Article 25(1) of the ICSID Convention.

[46] Article 1 of the Law of Arbitration Royal Decree No., M/46 12 Rajab 1403 – 25 April 1983.

[47] See, Al-Samaan, Y. (2000). The legal protection of foreign investment in the kingdom of Saudi Arabia, Dar Al Andalus Publishers, pp.301-302.

[48] See, Preamble and Article 25(1) of the ICSID Convention.

[49] See, Al-Samaan, Y. (2000). The legal protection of foreign investment in the kingdom of Saudi Arabia, Dar Al Andalus Publishers, pp.301-302.

[50] Al-Samaan, Y. (2000). The legal protection of foreign investment in the kingdom of Saudi Arabia, Dar Al Andalus Publishers, pp.301-302.

[51] Shoult, A, (ed.) (2006). Doing business with Saudi Arabia (3rd ed.). London: GMB Publishing, p.111.

[52] Al-Samaan, Y. (2000). The legal protection of foreign investment in the kingdom of Saudi Arabia, Dar Al Andalus Publishers, p.302.

[53] Article 5 of the KSA Arbitration Law.

[54] Al-Samaan, Y. (2000). The legal protection of foreign investment in the kingdom of Saudi Arabia, Dar Al Andalus Publishers, p.302.

[55] Shoult, A, (ed.) (2006). Doing business with Saudi Arabia (3rd ed.). London: GMB Publishing, p.111.

[56] Section 1 of the Implementation rules.27.05.1985G (08.09.1405H) 27 May 1985.

[57] Article 2 of the Arbitration Law.

[58] Supra, Implementation rules.27.05.1985G (08.09.1405H) 27 May 1985.

[59] Supra, Implementation rules.27.05.1985G (08.09.1405H) 27 May 1985.

[60] Article 7 of the Arbitration Law.

[61] Article 7 of the KSA Arbitration Law.

[62] See, Royal Decree No., M/8 Dated: 22/3/1394 H and Article 2 of the KSA Arbitration Law.

[63] Article 2 of the Arbitration Law.

[64] Article 2 of the Arbitration Law.

[65] Article 2 of the Arbitration Law Implementing Rules.

[66] Article 2 of the Arbitration Law Implementing Rules.

[67] Saudi Arabia, (July 2008).  Arbitration in the Middle East Norton Rose Group, retrieved August 20, 2010, from: http://www.nortonrose.com/knowledge/publications/pdf/Arbitration%20manuals/Middle%20East/file25752.pdf?lang=en-gb/

[68] Shoult, A, (ed.) (2006). Doing business with Saudi Arabia (3rd ed.). London: GMB Publishing, p.104.

[69] Sayen, G. (1987). Arbitration, conciliation, and the Islamic legal tradition in Saudi Arabia. U. Pa. J. Int’l Bus. L., Vol. 9, No. 2, p. 211.

[70] Sayen, G. (1987). Arbitration, conciliation, and the Islamic legal tradition in Saudi Arabia. U. Pa. J. Int’l Bus. L., Vol. 9, No. 2, p. 214.

[71] Sayen, G. (1987). Arbitration, conciliation, and the Islamic legal tradition in Saudi Arabia. U. Pa. J. Int’l Bus. L., Vol. 9, No. 2, p. 214.

[72] Sayen, G. (1987). Arbitration, conciliation, and the Islamic legal tradition in Saudi Arabia. U. Pa. J. Int’l Bus. L., Vol. 9, No. 2, p. 214.

[73] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.8.

[74] Vielleville, D.E. & Vasani, B.S. (2008). Sovereignty over natural resources versus rights under investment contracts: which one prevails? Transnational Dispute Management, Vol. 5, No. 2, p.14.

[75] Article two of KSA Foreign Investment Law.

[76] Article 3 of the Foreign capital Investment Law, Resolution No., 11/21 dated 17/111421H.

[77] Shoult, A, (ed.) (2006). Doing business with Saudi Arabia (3rd ed.). London: GMB Publishing, p.101.

[78] Shoult, A, (ed.) (2006). Doing business with Saudi Arabia (3rd ed.). London: GMB Publishing, p.101.

[79] Saudi Investment Climate, retrieved August 20, 2010, from;  http://www.the-saudi.net/saudi-arabia/investment_climate.htm/

[80]Saudi Investment Climate, retrieved August 20, 2010, from;  http://www.the-saudi.net/saudi-arabia/investment_climate.htm/

[81] Al Ahdab, A.H. (1990). Arbitration with Arab countries. Kluwer law and Taxation Publishers, p.593.

[82] Al Ahdab, A.H. (1990). Arbitration with Arab countries. Kluwer law and Taxation Publishers, p.593.

[83] Article 1 of the Law of Arbitration Royal Decree No., M/46 12 Rajab 1403 – 25 April 1983.

[84] Article 1 of the Law of Arbitration Royal Decree No., M/46 12 Rajab 1403 – 25 April 1983.

[85] Al Ahdab, A.H. (1990). Arbitration with Arab countries. Kluwer law and Taxation Publishers, p.594.

[86] Al Ahdab, A.H. (1990). Arbitration with Arab countries. Kluwer law and Taxation Publishers, p.594.

[87]Sayen, G. (1987). Arbitration, conciliation, and the Islamic legal tradition in Saudi Arabia. U. Pa. J. Int’l Bus. L., Vol. 9, No. 2, p.594.

[88] Section 9, Chapter 1 of the Arbitration Law Implementing Rules.

[89] Article 6 of the Arbitration Law.

[90] Section 9, Chapter 1 of the Arbitration Law Implementing Rules.

[91] Article 8 of the Arbitration Law.

[92] Article 10 of the Arbitration Law.

[93] Article 10 of the Arbitration Law.

[94] Article 9 of the Arbitration Law.

[95] Article 18 of the Arbitration Law.

[96] Article 11 of the Arbitration Law.

[97] Article 3 of the Arbitration Law.

[98] Article 3 of the Arbitration Law.

[99] Article 19 of the Arbitration Law.

[100] Article 20 of the Arbitration law.

[101]Sayen, G. (1987). Arbitration, conciliation, and the Islamic legal tradition in Saudi Arabia. U. Pa. J. Int’l Bus. L., Vol. 9, No. 2, p. 221.

[102] Sayen, G. (1987). Arbitration, conciliation, and the Islamic legal tradition in Saudi Arabia. U. Pa. J. Int’l Bus. L., Vol. 9, No. 2, p. 221.

[103] Sayen, G. (1987). Arbitration, conciliation, and the Islamic legal tradition in Saudi Arabia. U. Pa. J. Int’l Bus. L., Vol. 9, No. 2, p. 222.

[104] Sayen, G. (1987). Arbitration, conciliation, and the Islamic legal tradition in Saudi Arabia. U. Pa. J. Int’l Bus. L., Vol. 9, No. 2, p. 221.

[105] Saudi Arabia, (July 2008).  Arbitration in the Middle East Norton Rose Group, p.5, retrieved August 20, 2010, from: http://www.nortonrose.com/knowledge/publications/pdf/Arbitration%20manuals/Middle%20East/file25752.pdf?lang=en-gb/

[106] Saudi Arabia, (July 2008).  Arbitration in the Middle East Norton Rose Group, p.5, retrieved August 20, 2010, from: http://www.nortonrose.com/knowledge/publications/pdf/Arbitration%20manuals/Middle%20East/file25752.pdf?lang=en-gb/

[107] Saudi Arabia, (July 2008).  Arbitration in the Middle East Norton Rose Group, p.5, retrieved August 20, 2010, from: http://www.nortonrose.com/knowledge/publications/pdf/Arbitration%20manuals/Middle%20East/file25752.pdf?lang=en-gb/

[108] Saudi Arabia, (July 2008).  Arbitration in the Middle East Norton Rose Group, p.5, retrieved August 20, 2010, from: http://www.nortonrose.com/knowledge/publications/pdf/Arbitration%20manuals/Middle%20East/file25752.pdf?lang=en-gb/

[109] Sayen, G. (1987). Arbitration, conciliation, and the Islamic legal tradition in Saudi Arabia. U. Pa. J. Int’l Bus. L., Vol. 9, No. 2, pp.220-221.


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