Investor Presentaiton

33 Party consultations and negotiations will take place between the parties concerned. (2) If these consultations and negotiations do not result in a solution within four months from the date of a written notifications [sic] for settlement, the investor may submit the dispute either: (a) to the competent tribunal of the Contracting Party in whose territory the investment was made, or (b) to international arbitration of the International Centre for Settlement of Investment Disputes (ICSID) [...]." (Emphasis added). The ICSID Convention requires that the disputing parties unambiguously intend to submit their dispute to ICSID. This requirement is fulfilled if, as in the above example, the treaty provision allows the foreign investor to submit the case to arbitration. Therefore, although the provision does not expressly set out the contracting Parties' consent to arbitration, the consent is inferred from the language. (iii) Agreement to provide consent in the future Some IIAs provide that a State "shall agree” to give its consent in the future. For example, the 1998 BIT between Australia and Lithuania provides in Article 13 that if an investor of one Party refers a claim to arbitration before ICSID, "the other Party shall consent in writing to the submission of the dispute to the Centre within thirty days of receiving such a request from the investor [...].” Read narrowly, this clause means that the arbitration forum shall not have jurisdiction until the contracting party involved gives its consent. Refusing to give such consent, however, would be a violation of the BIT and would give rise to State-to-State dispute settlement. Further, an investor-State tribunal might rule that it had jurisdiction notwithstanding the failure of the State to give explicit UNCTAD Series on International Investment Agreements II

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