Investor Presentaiton
100
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
When deciding an objection under this procedure, the arbitral
tribunal assumes that the claimant's factual allegations in support of
the claims are true, and issues a decision or award on the objection
on an expedited basis. The United States Model BIT demonstrates
this approach, which is found in recent IIAs concluded by the
United States and some other countries:95
95
"Article 28. Conduct of the Arbitration
[...]
4. Without prejudice to a tribunal's authority to address other
objections as a preliminary question, a tribunal shall address
and decide as a preliminary question any objection by the
respondent that, as a matter of law, a claim submitted is not
a claim for which an award in favour of the claimant may be
made under Article 34 ["Awards"].
(a) Such objection shall be submitted to the tribunal as
soon as possible after the tribunal is constituted, and in no
event later than the date the tribunal fixes for the
respondent to submit its counter-memorial (or, in the case
of an amendment to the notice of arbitration, the date the
tribunal fixes for the respondent to submit its response to
the amendment).
(b) On receipt of an objection under this paragraph,
the tribunal shall suspend any proceedings on the merits,
establish a schedule for considering the objection
consistent with any schedule it has established for
considering any other preliminary question, and issue a
decision or award on the objection, stating the grounds
therefore.
See, e.g., Australia-Chile FTA (2008) Article 10.20(3)-(5). Like the
ICSID rules, this article refers to claims "manifestly without legal merit”.
UNCTAD Series on International Investment Agreements IIView entire presentation