Investor Presentaiton
150
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
attorneys incurred during the proceedings, considering
whether or not the objection prevailed.
14.2. [...] In the event of a frivolous claim the Tribunal
shall award costs against the claimant." (Emphasis added).
The 2004 U.S. Model BIT, in Article 28(6), takes a similar
approach, but leaves discretion to the tribunal:
"When it decides a respondent's objection under paragraph 4
or 5, the tribunal may, if warranted, award to the prevailing
disputing party reasonable costs and attorney's fees incurred
in submitting or opposing the objection. In determining
whether such an award is warranted, the tribunal shall
consider whether either the claimant's claim or the
respondent's objection was frivolous and shall provide the
disputing parties a reasonable opportunity to comment."
Q. Review of arbitral awards
Arbitration is premised on consent that the parties have
agreed to the resolution of the dispute by an arbitral body convened
pursuant to certain rules. The legitimacy of international arbitral
awards derives from that consent, but also depends on the control
mechanisms ensuring that the arbitrations leading to those awards
were conducted fairly and were not tainted by any kind of
impropriety. Ensuring the legitimacy of the process also enhances
enforcement of an award. Yet permitting another entity, usually a
court, to review an arbitral award could compromise other goals of
arbitration, such as finality and efficiency. The control mechanisms
governing international arbitral awards attempt to find a middle
ground by permitting review of the procedure to ensure that the
arbitral proceedings respected due process without authorizing
courts to engage in wholesale appellate review of the arbitral award.
UNCTAD Series on International Investment Agreements IIView entire presentation