Uzbekistan's New Bilateral Investment Treaty Standpoint: In Case of Uzbekistan-Turkey bit (2018) by F. Muminov and J. Górski About tdm tdm
Investor-state Dispute Settlement Clause (ISDS)
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Uzbekistan s New Bilateral Investment Tr
3. Investor-state Dispute Settlement Clause (ISDS)
Investment arbitration practice shows that there are three ways in which to consent to international arbitration. 27 The most obvious way is an arbitration clause in the investment agreement between the host country and the foreign investor and, indeed, dispute settlement clauses which allow for arbitration are a common element of investment agreements. Another method to give consent for arbitration is a dispute settlement clause in domestic legislation that only provides some for general terms, in the national investment legislation of the host country which is a common practice among capital importing countries. Such a dispute settlement clause may provide a right of a foreign investor to seek a recourse in international arbitration. International investment arbitration practice indicates that dispute settlement clauses in the host states’ national investment law are subject to strict rules and limitations. Thus, in order to be relied upon, a consent to arbitration in the national investment legislation of the host country shall be clear and precise 28 . Although found in host state’s investment law, such consent can only be effectuated through an agreement between the host country and the investor. 29 Prior to that, such abstract and dormant dispute settlement clause is no more than an offer toward investors (consent to arbitration). Such an offer, in order to be effective, must also be accepted by the foreign investor. 30 The foreign investor may accept this offer any time as long as the host country’s investment law is in force. The third method in which to consent to access international arbitration are investment treaties between the host country and the investor’s state of origin. Several BITs include a dispute settlement clause to access international arbitration. The same method is used in a number of regional RTAs such as the United States–Mexico–Canada Agreement (USMCA) or sector- specific trade agreement like the Energy Charter Treaty (ECT). This kind of dispute settlement clause, in order to be effective, needs to be accepted by the foreign investor. Recent developments in international investment arbitration indicate that international arbitration could be accessed without the host state’s consent. Although this is debatable, there are few examples to support it. 31 3 .1. Scope of Consent to Investor-state Arbitration The investor-state dispute settlement clause in typical Uzbekistan’s BITs refers to any disputes 32 and any legal disputes. 33 Any disputes is a broad formulation of dispute settlement 27 UNCTAD Dispute Settlement: Consent to Arbitration (2003) 9. 28 See in more detail: Trandex Hellas S.A v. Republic of Albania, ICSID Case No. ARB/94/2, Decision on Jurisdiction; Inceysa Valli-soletana S. L v. Republic of El Salvador, ICSID Case No. ARB/03/26, Award; Rumeli Telekom A.S. v. Kazakhstan, ICSID Case No. ARB/05/16, Award; Biwater Gauff Ltd v. United Republic of Tanzania, ICSID Case No. ARB/05/22. 29 Christoph Schreuer, ‘Calvo’s Grandchildren: The Return of Local Remedies in International Arbitration’ (2005) 4 Law and Practice of International Courts and Tribunals 1-18, 1-2. 30 UNCTAD 11. 31 Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt (Case ARB/84/3) ICSID Award. See also Jan Paulsson, ‘Arbitration without Privity’ (1995) 10 ICSID Review 232-257; Muthucumaraswamy Sornarajah, Resistance and Change in the International Law on Foreign Investment (CUP 2015) 139-147. 32 Uzbekistan-Oman BIT (2009) art 10(1); Uzbekistan – Malaysia BIT (2000) art.7(1); Uzbekistan-Kore BIT (1992) art 9(2); Uzbekistan –India BIT (2000) art 11(3); Uzbekistan-Hungary BIT (2003) art 8(3); Uzbekistan- Finland BIT (1003) art 8(1); Uzbekistan –Bangladesh BIT (2001) art 10. 33 Uzbekistan-Israel BIT (1997) art 8(1); Uzbekistan-Finland BIT (1003) art 8(1). 9 clause which can be seen as contractual and of treaty claims arising out of the same investment. In contrast, the Uzbekistan-Turkey BIT offers a narrower formulation of the investor-state arbitration clause, by stating in art 10 that: “this article shall apply to dispute between a Contracting Party and an investor of the other Contracting Party arising in connection with investment of investor in the territory of the State of the first Contracting Party, including dispute relating to a breach of obligation of the former under this Agreement, which causes loss or damage to the investor or investments , as well as relating to the size, conditions and order of the payment of the compensation in accordance with Article 6 and 7 of this Agreement, and the transfer of payments provided for in Article 8 of this Article. ” At first glance, this clause may appear to offer a wide reference to Download 0.6 Mb. Do'stlaringiz bilan baham: |
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