Investor Presentaiton
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In contrast to Article 28 of the Uruguay-United States BIT
quoted above, this clause covers a narrower range of possible
objections (only those relating to "jurisdiction or admissibility") and
leaves to the tribunal the ultimate decision on whether it will
consider preliminary objections before the merits.98
Having a provision on frivolous claims in an IIA is particularly
important in arbitrations conducted under rules other than the ICSID
Arbitration Rules (and ICSID Additional Facility Rules), as the
latter contain their own stipulations on this matter. In 2006, ICSID
amended its arbitration rules to provide for an expedited decision on
an objection that a claim is "manifestly without legal merit." Rule
41 of the ICSID Arbitration Rules provides in the relevant part:
5999
"(5) Unless the parties have agreed to another expedited
procedure for making preliminary objections, a party may, no
later than 30 days after the constitution of the Tribunal, and
in any event before the first session of the Tribunal, file an
objection that a claim is manifestly without legal merit. The
party shall specify as precisely as possible the basis for the
objection. The Tribunal, after giving the parties the
opportunity to present their observations on the objection,
shall, at its first session or promptly thereafter, notify the
parties of its decision on the objection. The decision of the
Tribunal shall be without prejudice to the right of a party to
file an objection pursuant to paragraph (1) or to object, in the
course of the proceeding, that a claim lacks legal merit.
(6) If the Tribunal decides that the dispute is not within the
jurisdiction of the Centre or not within its own competence, or
98
Lévesque and Newcombe, 2013, p. 118. A similar provision can be
found in the Belgium/Luxemburg-Colombia BIT (2009), Article XII (14).
The ICSID Additional Facility Arbitration Rules contain an analogous
provision in Article 45(6-7).
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UNCTAD Series on International Investment Agreements IIView entire presentation