Investor Presentaiton
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Treaty, to redress the dispute before it is submitted to
arbitration. [...] That suffices to defeat jurisdiction."
(Underlined (as Italics) in the original, bold added).
The Burlington v. Ecuador tribunal's approach was also
endorsed in Murphy v. Ecuador ("[the six-month period] constitutes
a fundamental requirement that Claimant must comply with,
compulsorily, before submitting a request for arbitration under the
ICSID rules.")." In another case, Wintershall v. Argentina, the
tribunal had to interpret the Argentina-Germany BIT that provided
for (i) a six-month negotiations period, and (ii) an 18-month period
for mandatory pursuit of local remedies. The tribunal found that the
claimant had failed to comply with these requirements, and
consequently declined jurisdiction.*
47
In the opposing line of awards, tribunals have held that waiting
periods are "a mere formality", "merely procedural rules",
"procedural and directory in nature, rather than jurisdictional and
mandatory", and that they may be disregarded particularly where it
follows from the facts of the case that any attempted consultation or
negotiation would have been futile.4
48
45
Burlington v. Ecuador, ICSID Case No. ARB/08/5, Decision on
Jurisdiction, 2 June 2010, paras. 312, 315.
46 Murphy Exploration and Production Co. Int'l v. Ecuador, ICSID Case
No. ARB/08/4, Award on Jurisdiction, 15 December 2010, para. 149.
47 Wintershall v. Argentina, ICSID Case No. ARB/04/14, Award, 8
December 2008, paras. 114–156. See also Enron v. Argentina, ICSID Case
No. ARB/01/3, Decision on Jurisdiction, 14 January 2006, para. 88.
48 See Ethyl Corporation v. Canada, UNCITRAL, Decision
Jurisdiction, 24 June 1998, para. 85; SGS v Pakistan, Case No. ARB/01/13,
Decision on Jurisdiction, 6 August 2003, para. 184; Biwater Gauff v.
Tanzania, Award, 24 July 2008, paras. 343-344; Occidental v. Ecuador,
ICSID Case No. ARB/06/11, Decision on Jurisdiction, 9 September 2008,
para. 94.
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