Investor Presentaiton
56
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
2. Period for negotiations and consultations
Other IIAs have put more emphasis on a genuine attempt by the
parties to consult and negotiate in order to come to an actual
amicable settlement. The Ethiopia-Spain BIT (2006), for example,
provides:
"As far as possible, the parties concerned shall endeavor to
settle their disputes amicably through negotiations." (Article
10(1), emphasis added).
Similarly, according to the Lebanon-Slovakia BIT of 2009,
investor-State disputes "shall be subject to amicable consultations
between the parties to the dispute” (Article 8(1), emphasis added).
While this type of provision clearly encourages the disputing parties
to engage in negotiations, what constitutes “negotiations" is not
clearly defined. For example, it is debatable whether an exchange of
letters is adequate to constitute a negotiation, or whether something
more is required.
Some provisions are more detailed than others with respect to
procedural requirements for negotiations, as illustrated by the
Canada-Colombia FTA (2008):
"The disputing parties shall hold consultations and
negotiations in an attempt to settle a claim amicably before a
disputing investor may submit a claim to arbitration.
Consultations shall be held within 30 days of the submission
of the Notice of Intent to Submit a Claim to Arbitration under
subparagraph 2(c), unless the disputing parties otherwise
agree. Consultations and negotiations may include the use of
non-binding, third-party procedures. The place of
consultations shall be the capital of the disputing Party,
unless the disputing parties otherwise agree." (Article 821,
emphasis added).
UNCTAD Series on International Investment Agreements IIView entire presentation