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Article 10

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Settlement of investment disputes

1. (i) Each Contracting Party consents to submit any dispute or differences that may arise out of or in relation to investments made in its territory by a national, company or State entity of the other Contracting Party for settlement through conciliation or arbitration in accordance with the provisions of this Article.

2. (ii) If any dispute or differences should arise between a Contracting Party and a national, company or State entity of the other Contracting Party, which cannot be resolved within a period of ___ through negotiations, either party to the dispute may initiate proceedings for conciliation or arbitration after the local remedies have been exhausted. 14

(p. 340) The provisions on dispute settlement of the Code of Conduct on Transnational Corporations of 1989 formulated by the UNCTC emphasizes the primacy of national courts and tribunals, thus retaining the requirement of resort to and exhaustion of local remedies, while it states in Article 59 that, where the parties so agree, disputes may be referred to other mutually acceptable dispute settlement procedures. 15

The approach taken in the drafting of BITs without exception, as the examples discussed above show, is based on the assumption that, even if arbitration instituted by the host State and investor is agreed upon in the BIT as a dispute settlement procedure, it does not per se imply a waiver of the rule of local remedies as a pre-condition to such arbitration. It is only if there is an express waiver or a waiver must necessarily be implied in the interpretation of the treaty that the application of the rule may be excluded. 16

BITs generally provide also for the settlement of disputes between the two States parties to the particular BIT. Generally, such provisions refer to disputes relating to ‘the application or interpretation’ of the treaty. An example of a provision for the settlement of such disputes is Article 10 of the 1989 BIT between France and Bulgaria, which states:

1. 1. Les différends rélatifs à l'application et à l'interprétation du présent Accord sont réglés par voie de négociation entre les Parties contractantes.

2. 2. Si le différend n'est pas réglé dans un délai de six mois a partir dù moment ou il a été soulevé par l'une ou l'autre des Parties contractantes et sauf accord contraire de ces dernières sur la fixation d'un nouveau délai, il est soumis à la demande de l'une ou l'autre des Parties contractantes à un cour d'arbitrage.

Two questions arise with regard to such disputes which under such provisions are subject to settlement ultimately by arbitration. The first is whether the investor's national State could use these provisions to have disputes settled in the direct exercise of diplomatic protection. The second is whether the inter-State arbitration provided for, if permissible in the exercise of diplomatic protection, is subject to the exhaustion of local remedies by the investor. The answers to both questions depend naturally on the interpretation of the provisions of the particular BIT.

As to the first question, the reference to ‘application and interpretation’ of the BIT in the provisions cited above, for example, clearly covers the interpretation and application of the treaty to the relationship between investor and the host State. Consequently, the provision must enable the national State of the investor (p. 341) to bring a dispute which involves the application and interpretation of the treaty to arbitration under the provision, even though it may do so in the exercise of diplomatic protection. 17 The only problem is that the treaty specifically provides for the settlement of disputes between investor and host State by specific means. Such express terms, however, do not necessarily imply that provisions such as the one being discussed which refer to disputes between the host State and the investor's national State, must exclude disputes the solution of which is sought in the exercise of diplomatic protection directly involving the two States parties to the treaty, provided they concern the application and interpretation of the treaty. It is possible that recourse to diplomatic protection involving the two States in those circumstances is left as a possible alternative to the settlement procedures designed to involve the investor directly. On the other hand, it would be reasonable to infer that, once the procedures directly involving the investor are invoked, the treaty does not permit the resort to diplomatic protection directly with the involvement in arbitration of the investor's national State; otherwise, the settlement procedures provided for would duplicate rather than simplify the procedures for the settlement of disputes which would not be a logically consistent result. The interpretation of the BIT given here, while conceding that the settlement procedures directly involving the investor effectively substitute for the execution of diplomatic protection, also recognizes that Article 10 in addition affords an alternative procedure that can be applied in the exercise of diplomatic protection.

On the assumption that the exercise of diplomatic protection actively and directly involving the investor's State is possible as an alternative to the settlement procedures afforded the investor directly, the next issue is whether such protection by resort to inter-State arbitration procedures is subject to the exhaustion of local remedies by the investor or whether the requirement of such exhaustion has been waived. The answer again depends on the interpretation of the specific provisions of the BIT concerned. Article 10 of the BIT between France and Bulgaria, for instance, does not contain an express waiver of the application of the rule of local remedies in the appropriate circumstances nor does it necessarily imply that the application of the rule has been waived in such circumstances by the host State. The reference to negotiation as a pre-condition for arbitration is a reference to what is required of the parties to the BIT. It does not affect what is required of the investor, if a party to the treaty wishes directly to exercise diplomatic protection. This interpretation of Article 10 is not inconsistent with the provisions of the treaty nor is it illogical. On the contrary, it flows from the importance attached to the rule of local remedies in the settlement of disputes through the exercise of diplomatic protection which was recognized by the ICJ. 18

Notes:

(1) 4 ILM (1965) 352.

(2) The records show that the first post-Second World War so-called BIT was signed in 1959. Between 1959 and 2001, there have been 837 BITs signed: ICSID, Investment Promotion and Protection Treaties, Release 2001–3 (2001). All these treaties with the exception of one (between Germany and Greece in 1961) have been between developed countries, on the one hand, and less developed countries, on the other. A few of these treaties have been between two less developed countries (eg Malaysia and Vietnam (1992), Singapore and Sri Lanka (1980), and Israel and Romania (1991)). Clearly, the BIT is directed at less developed countries and is an instrument to secure special protection, vis-à-vis these countries, for investments made in them by nationals of developed states. On the impact of BITs on the rule of local remedies see C F Amerasinghe, Local Remedies in International Law (2004) 267 ff, from which the material in this Chapter is taken.See also on the subject of investment treaties and their relationship to, and effect on, diplomatic protection: Kokott, ‘The Role of Diplomatic Protection in the Field of the Protection of Foreign Investment’ in ILA, Report of the Seventieth Conference (2002) 259.

(3) Perhaps NAFTA would qualify for this description.

(4) For the OECD, see 7 ILM 117 (1968); for the AALCC, see 23 ILM 254 (1984); and for the UNCTC, see UN Doc E/1990/94, Annex.

(5) Article 8 of the UK BIT with Czechoslovakia (1990), and Article 10 of the UK BIT with Ghana (1989).

(6) Article VI(4) of the US BIT with Armenia (1992), and Article VII(4) of the US BIT with Argentina (1991).

(7) See the BITs between the UK and Nigeria (1990) and the UK and Congo (1989), and between the Netherlands and Paraguay (1992).

(8) See the BITs between the UK and Ghana (1989), the UK and Ukraine (1990), the UK and Argentina (1990), Switzerland and Paraguay (1992), and Switzerland and Ghana (1991).

(9) See also the BIT between Switzerland and Argentina (1991).

(10) See also Article 8(2) and (3) of the BIT between France and Argentina (1991) and Article IX(2) of the BIT between Norway and Indonesia (1991), which are similar.

(11) See also Article 8(1) and (2) of the BIT between the UK and Argentina (1990) and Article 10(1) to (3) of the BIT between the Netherlands and Argentina (1992) for similar provisions.

(12) See for similar provisions Article 9 of the BIT between Switzerland and Cape Verde (1991), and Article 12(1) and (2) of the BIT between Switzerland and Ghana (1991).

(13) 7 ILM 132 (1968).

(14) 23 ILM 263–4 (1984).

(15) See CTC, ‘Code of Conduct on Transnational Corporations: Report of the Secretary General’, Doc E/C.10/1989/1.

(16) There is an additional question which may arise in relation to BITs in regard to international dispute settlement arrangements. That is whether breaches of contract by in particular the host State itself, which are not per se violations of international law, are in fact submitted to arbitral settlement under these treaties. Clearly, the answer depends on the interpretation of the particular treaty. The discussion above is of the incidence of the rule of local remedies which relates to exhaustion of remedies, where there has been a violation of international law, and not merely to the resort to or use of local remedies which is usually required before there can be a violation of international law in contract cases.

(17) ‘Application’ of the BIT undoubtedly covers remedies consequent upon such application which could be included in a claim based on diplomatic protection involving the two States directly.

(18) To conclude, it may be observed in passing that bilateral investment treaties do have an impact on the substantive law regarding the treatment of alien investment, insofar as they include provisions on the subject. Such provisions may add to or subtract from the rights of investors deriving from the international minimum standard, depending on their content

 


 




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