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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 II
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