Investor Presentaiton
34
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
consent due to the apparently unequivocal nature of the obligation
undertaken in the treaty to provide consent in the future.
(iv) Reservation of consent to arbitration
In some treaties States explicitly withhold their consent to
arbitration. The BIT between Argentina and New Zealand (1999) is
an example:
"Article 12. Disputes between a Contracting Party and an
investor of the other Contracting Party
[...]
(3) In the case of international arbitration, unless the parties
to the dispute agree otherwise, the dispute shall be submitted
to either:
(a) The International Centre for the Settlement of
Investment Disputes (ICSID) [...] or,
(b) If both parties to the dispute agree, arbitration under
the Arbitration Rules of the United Nations
Commission on International Trade Law, as then in
force.
(4) Paragraph (3) of this Article shall not constitute, by
itself, the consent of the Contracting Party required in
Article 25(1) of the [ICSID] Convention [...]." (Emphasis
added).
Thus, under this type of provision, an investor cannot initiate
arbitral proceedings on the basis of the BIT alone. In order to do so,
the investor must obtain the consent of the host State in relation to
the specific dispute concerned. This approach gives host States full
control in deciding which investment disputes they wish to settle
through international arbitration.
UNCTAD Series on International Investment Agreements IIView entire presentation