Investor Presentaiton
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INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
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arbitration. In fact, when a treaty includes a limitation period,
investors would compromise their ability to submit a claim to
international arbitration by continuing for too long in domestic
courts.
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Administrative review procedures. A relatively new feature in
ISDS provisions is the reference to administrative review
procedures. Relevant formulations point to the availability of an
internal procedure within public administrative institutions to bring
a problem or dispute to the attention of the higher authority within
the administration in order to resolve the problem. A reference to
this provision in a treaty is meant to highlight this avenue and
encourage investors to make use of it. It is not a requirement to
exhaust local administrative remedies; some treaties are express on
this point. For example, the FTA between Canada and Colombia
(2008) encourages foreign investors to make every effort to exhaust
administrative recourse under Colombian law:
"With a view to encouraging the review, confirmation or
modification of administrative acts prior to such acts
becoming final, the Parties recognize that disputing investors
should make every effort to exhaust administrative recourse
under Colombian law. A disputing investor that fails to
exhaust administrative recourse, where applicable, shall
submit its Notice of Intent nine months prior to submitting a
claim to arbitration." (Article 821, n. 8).
Under this provision, the failure to exhaust administrative
recourse results in the extension of the notice-of-intent period from
six to nine months. The provision notably only applies to the
75 Depending on the text of the specific IIA (primarily, whether it has a
"no-U-turn" provision), the investor may need to discontinue the domestic
proceedings when referring the claim to arbitration.
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On limitation periods, see section II.B.2.
UNCTAD Series on International Investment Agreements IIView entire presentation