Investor Presentaiton
36
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
notice of intent to submit a claim to arbitration and the notice of
arbitration had not been satisfied, and that the notice of arbitration
had been impermissibly amended after it had been filed.27
The more explicit the language in the treaty is, the more likely a
tribunal will require strict compliance with the conditions upon
which a respondent State offered its consent to arbitration. Canada,
for example, has put very clear language in Article 26(5) of its 2004
Model BIT: "Failure to meet any of the conditions precedent
provided for in paragraphs 1 through 3 shall nullify the consent of
the Parties given in Article 28 (Consent to Arbitration)."
3. Consent to different arbitration forums/rules
The State's offer to arbitrate will often identify two or more
possible sets of arbitration rules under which the arbitration may be
conducted. The investor will make its preferred choice when it
submits a claim to arbitration. Various forums and arbitration rules
available under IIAs are examined in more detail in section II.D
below.
4. Duration of consent
IIAs typically include so-called “survival clauses", which
guarantee that the provisions of the treaty remain in effect for a
specified period of years 5, 10, and sometimes 15 or even 20
after its termination. 28 Thus, even though a State may
years
27 Kinnear, Bjorklund and Hannaford, 2009, pp. 1122–1125.
28 Note that where an investment chapter is integrated into a broader
economic agreement, such as an FTA, it sometimes does and sometimes
does not include a survival clause. See, for example, the India-Korea
Comprehensive Economic Partnership Agreement (CEPA) (2009), which
includes a survival clause in Article 10.22, and the Canada-Chile FTA
(2008), which contains only a general provision that either Party can
terminate the agreement on six months' notice in Article P-05.
UNCTAD Series on International Investment Agreements IIView entire presentation