Investor Presentaiton
58
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
its responsive preparations. It puts on notice that branch of the
government that will be defending the State against the claim, so
that it can begin investigating the circumstances behind the case and
assessing its strength, or lack thereof. Those investigations can also
affect settlement consultations. 43 It also simplifies the calculation of
time-periods and prevents disputes as to whether the amicable
settlement procedure envisaged by the treaty has been respected.
4. Consequences of not following the amicable settlement
procedure
A number of ISDS cases have dealt with situations where the
claimant had not complied with the amicable settlement procedure.
Tribunal decisions on this issue have differed from case to case. For
example, in Western NIS Enterprise Fund v. Ukraine, the tribunal
issued an order stating that "proper notice is an important element
of the State's consent to arbitration, as it allows the State, acting
through its competent organs, to examine and possibly resolve the
dispute by negotiations. "44 Hence, the proceedings were suspended
to require the investor to adhere to the appropriate proceedings by
giving proper advance notice to the State.
43
Similarly, in Burlington v. Ecuador, the tribunal held:
"[T]he Request for Arbitration is too late a time to apprise
Respondent of a dispute. The six-month waiting period
requirement of Article VI is designed precisely to provide the
State with an opportunity to redress the dispute before the
investor decides to submit the dispute to arbitration.
Claimant has only informed Respondent of this dispute with
the submission of the dispute to ICSID arbitration, thereby
depriving Respondent of the opportunity, accorded by the
See Legum, 2010, pp. 91, 93.
44 Western NIS Enterprise Fund vs. Ukraine, ICSID Case No. ARB/04/2,
Order of 16 March 2006, para. 5.
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