Investor Presentaiton
49
taking place within three (3) years
of the time at which the disputing
investor became aware, or should
reasonably have become aware, of
a breach of an obligation under
this Agreement causing loss or
damage to the investor or its
investment." (Emphasis added).
the disputing investor acquired
or should have first acquired,
whichever is the earlier,
knowledge of the incurred loss
or damage referred to in
paragraph 1." (Emphasis
added).
A limitation period would normally include the time that the
investor spends pursuing its claim in domestic courts.
It may be useful to clarify, when drafting an IIA, the event
which stops the running of the limitation period. Should it be
calculated by reference to the moment when an investor notifies the
host State of the alleged treaty breach and requests consultations
(i.e. starts the amicable settlement / waiting period); the date when
the investor notifies of its intention to submit the claim to arbitration
(e.g., submits its "notice of intent"); or the date when the arbitration
itself is formally commenced (i.e. when a request for arbitration
(ICSID) or a notice of arbitration (UNCITRAL)) is submitted.
Depending on the length of the amicable settlement period, the latter
option might be too restrictive for investors.
Another question to consider relates to encouraging investors to
seek local remedies. A short limitation period, or one that continues
to run while an investor seeks relief locally, might discourage the
pursuit of local remedies due to the fear that relief will not be
forthcoming prior to the expiration of the limitation period.
Many (older) IIAs do not contain limitation periods. This
increases the exposure of States to investor claims, which in this
case can be lodged within an unlimited period of time after the
events giving rise to the dispute, subject to general international law
principles regarding the pursuit of stale claims.
UNCTAD Series on International Investment Agreements IIView entire presentation