Investor Presentaiton
104
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
that all claims are manifestly without legal merit, it shall
render an award to that effect." (Emphasis added).
The respondent State's objection does not have to relate to the
jurisdiction of the tribunal. However, the preliminary objection
procedure can also be used to expedite an objection to the
jurisdiction of the tribunal. As one tribunal noted:
"There exist no objective reasons why the intent not to burden
the parties with a possibly long and costly proceeding when
dealing with such unmeritorious claims should be limited to
an evaluation of the merits of the case and should not also
englobe an examination of the jurisdictional basis on which
the tribunal's powers to decide the case rest."
3,100
The word "manifestly" in the phrase "manifestly without legal
merit” has been interpreted that setting a high standard of proof. As
stated by the tribunal in Trans-Global Petroleum v. Jordan, "an
award under Rule 41(5) can only apply to a clear and obvious case,
i.e. [...] patently unmeritorious claims'."101
These revisions to the ICSID Rules mean that States can make
frivolous-claims objections in proceedings under the ICSID
Convention or under the aegis of the Additional Facility Rules even
if the operative investment treaty itself does not contain a specific
provision authorizing the expedited preliminary procedure. Neither
the 1976 nor the 2010 UNCITRAL Rules contain a similar
mechanism.
100
Brandes v. Venezuela, ICSID Case No. ARB/08/3, Decision on the
Respondent's Objection under Rule 41(5) of the ICSID Arbitration Rules,
2 February 2009, para. 52. See also Globex Trading v. Ukraine, ICSID
Case No. ARB/09/11, Award, 1 December 2010, para. 30.
101 Trans-Global Petroleum, Inc. v. Jordan, ICSID Case No. ARB/07/25,
The Tribunal's Decision on the Respondent's Objection under Rule 41(5) of
the ICSID Arbitration Rules, 12 May 2008, para. 92.
UNCTAD Series on International Investment Agreements IIView entire presentation