Investor Presentaiton slide image

Investor Presentaiton

82 INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL claims have been grounded in international law. Some possible reasons for that are highlighted in the discussion of "fork-in-the- road" and "no-U-turn" clauses below. 2. Mandatory recourse to domestic courts and administrative tribunals Customary international law requires an injured foreign person to exhaust all effective domestic legal remedies before his claim becomes admissible at the international level. 74 Most investment treaties waive the exhaustion of local remedies rule, and permit the investor to have direct recourse to international arbitration. However, a number of IIAs require investors to pursue local remedies (judicial or administrative) in the host State for a certain period of time, or in rare circumstances even to exhaust local remedies. Under such treaties, an investor can refer the dispute to arbitration only after complying with these conditions. The relevant provisions typically impose a time limit for the domestic proceedings. The BIT between Belgium/Luxembourg and Botswana (2003) provides an example: 74 "Article 12. Settlement of Investment Disputes [...] 2. In the absence of an amicable settlement by direct agreement between the parties to the dispute or by conciliation through diplomatic channels within six months from the notification, the dispute shall be submitted, at the first instance to a court of competent jurisdiction of the latter Contracting Party for a decision. Either party may, six months after the submission of the dispute to a court of competent jurisdiction, refer the dispute to international arbitration." (Emphasis added). See Dugan et al, 2011, pp. 347-348. UNCTAD Series on International Investment Agreements II
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