Investor Presentaiton
102
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
objections is not defined. Conceivable objections could relate, for
example, to cases where the claim is time-barred, or does not
involve an "investment” as defined in the applicable IIA, or does not
concern conduct attributable to the respondent State.
The objective of the expedited procedure is to avoid spending
time and resources on full proceedings for claims that can be
dismissed at an early stage. This intention is also evidenced by the
specific time frames provided in paragraph 5 of Article 28 above.
However, if on the basis of available evidence, a tribunal decides
that it cannot rule on the matter or that the issues are inextricably
intertwined with the merits, it may decide that a hearing of the full
case is warranted.
A clear provision on discharge of frivolous claims helps to
avoid potentially lengthy arguments between disputing parties on
the matter of whether the proceedings should be bifurcated, i.e.
whether the preliminary objections should be considered separately,
prior to the full merits procedure.97
The approach described above is markedly different from other
treaty clauses that simply allow, but do not mandate, separate
consideration of preliminary objections by respondent States. For
example Canada's Model BIT (2004) provides:
"Article 37. Preliminary Objections to Jurisdiction or
Admissibility
Where issues relating to jurisdiction or admissibility are
raised as preliminary objections, a Tribunal shall, wherever
possible, decide the matter before proceeding to the merits."
97 For a discussion of issues relating to bifurcation, see, for example,
Glamis Gold v. United States, Procedural Order No.2 (Revised), 31 May
2005; Mesa Power v. Canada, Procedural Order No.2, 18 January 2013;
Procedural Order No. 3, 28 March 2013.
UNCTAD Series on International Investment Agreements IIView entire presentation