Investor Presentaiton

89 This provision refers the "subject matter" and the "underlying measure", which means that the cause of action (contract, national or international law) is irrelevant as long the State conduct at issue is the same. However, even with this particular formulation, a State's attempt to invoke the "fork-in-the-road" clause may be unsuccessful if the identities of the claimant in the domestic litigation and international arbitration are different. "No-U-turn", or "waiver”, clauses take a different approach to prevent duplicative claims. They permit investors to opt for international arbitration after commencing a claim for relief in domestic courts or tribunals. However, if the investor decides to submit a claim regarding the same measure to international arbitration under the ISDS provision of an IIA, then it must abandon its right to pursue local remedies. Agreements of Canada and the United States have tended to follow this approach." An illustrative example may be found in the Canada-Jordan BIT (2009): 79 "Article 26. Conditions Precedent to Submission of a Claim to Arbitration 1. A disputing investor may submit a claim to arbitration under Article 22 (Claim by an Investor of a Party on Its Own Behalf) only if: [...] e. the investor and, where the claim is for loss or damage to an interest in an enterprise of the other Party that is a juridical person that the investor owns or controls directly or indirectly, the enterprise waive their right to initiate or continue before any administrative tribunal or court under the law of either Party, or other dispute settlement See, for example, United States Model BIT (2012), Articles 24(1) and 26(2)(b); Canada's Model BIT (2004), Articles 26(1)(e) and 26(2)(e). UNCTAD Series on International Investment Agreements II

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