Investor Presentaiton
163
other States, specifically by reference to the Chile-Spain BIT, which
contained no waiting period. 197 The tribunal accepted the argument.
198
Several other tribunals faced with the issue of an 18-month
waiting period have followed the lead of the Maffezini tribunal."
The most common assumption supporting direct access to ISDS has
been that the 18-month waiting period is an admissibility
requirement and the State's consent to arbitration is not conditioned
on its satisfaction. Not all tribunals have agreed, however. The
Wintershall v. Argentina tribunal took the view that seeking local
remedies for 18 months was a jurisdictional requirement and that
Argentina's consent to ISDS was conditioned on an investor having
satisfied it.
199
The 18-month domestic-litigation requirement is not the only
ISDS requirement that investors have sought to replace by using the
MFN clause. The tribunal in Plama v. Bulgaria refused to grant an
investor access to ICSID Convention arbitration via an MFN clause
when ICSID Convention arbitration was not available under the IIA
applicable to the claimant investor.
200
197 Maffezini v. Spain, ICSID Case No. ARB/97/7, Award, 25 January
2000.
198
UNCTAD, 2010c, pp. 67–73.
199 Wintershall Aktiengesellschaft v. Argentine Republic, ICSID Case No.
ARb/04/14, Award, 8 December 2008, para. 172. See also ICS Inspection
and Control Services Ltd. v. Argentina, UNCITRAL, Award on
Jurisdiction, 10 February 2012, pp. 82-86; Impregilo S.p.A. v. Argentine
Republic, ICSID Case No. ARB/07/17, Dissenting Opinion of Brigitte
Stern, 21 June 2011 (endorsing the view that the 18-month waiting period
was one of the fundamental conditions on which an investor's enjoyment
of rights was predicated).
200 Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No.
ARB/03/14, Decision on Jurisdiction, 8 February 2005.
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