Investor Presentaiton
90
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
procedures, any proceedings with respect to the measure
of the disputing Party that is alleged to be a breach
referred to in Article 22, except for proceedings for
injunctive, declaratory or other extraordinary relief, not
involving the payment of damages, before an
administrative tribunal or court under the law of the
disputing Party." (Emphasis added).
This approach gives domestic courts the opportunity to redress
wrongs before they are raised to the international plane and permits
investors to try that venue first. Once the investor decides to seek
relief before an international tribunal, however, it may not shift back
to domestic courts, except in cases where the investor seeks
"injunctive, declaratory or other extraordinary relief".
81
80
The article above focuses on the measure that is alleged to be in
breach, and precludes duplicate proceedings regarding that
measure. It also requires that the investor's investment (i.e. a host-
State enterprise owned or controlled by the investor) waive its right
to initiate or continue proceedings with respect to the measure at
issue. This circumvents the narrow traditional litis pendens
requirement of identity of the cause of action and of the parties. In
other words, it attempts to preclude a simultaneous international
claim by an investor alleging breaches of the IIA, and domestic
proceedings by the investor's subsidiary alleging breaches of a
contract or domestic law.
80
The exception is included because the agreement explicitly precludes the
tribunal from awarding non-monetary relief.
81 Questions about whether the domestic litigation and international
arbitration related to the same measure have arisen in a few cases in the
NAFTA context. See Mark Roy Feldman Karpa v. Mexico, ICSID
ARB(AF)/99/1, Award, 16 December 2002, paras. 70–84; Waste
Management Inc. v. Mexico, ARB(AF)/98/2, Arbitral Award, 2 June 2000,
paras. 23-29.
UNCTAD Series on International Investment Agreements IIView entire presentation