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  • Print publication year: 2011
  • Online publication date: July 2011

6 - Procedure

Summary

Introduction

Article 26(1) provides that the disputes to which it applies ‘shall, if possible, be settled amicably’. By Article 26(2):

If such disputes can not be settled according to the provisions of paragraph (1) within a period of three months from the date on which either party to the dispute requested amicable settlement, the Investor party to the dispute may choose to submit it for resolution:

(a) to the courts or administrative tribunals of the Contracting Party party to the dispute;

(b) in accordance with any applicable, previously agreed dispute settlement procedure; or

(c) in accordance with the following paragraphs of this Article [i.e. paragraphs (3) to (8), which contain the provisions for investor–state arbitration considered in more detail below].

Amicable settlement

The restriction of the right to choose one of these options for formal dispute settlement to those cases which ‘can not be settled according to the provisions of paragraph (1) within a period of three months from the date on which either party to the dispute requested amicable settlement’ is similar to the provisions of many investment treaties. On one reading it imposes a jurisdictional hurdle: since it is only if the dispute is one which cannot be settled amicably within three months of a request for amicable settlement that an investor may proceed to formal dispute settlement, the investor must first make such a request and then allow three months to elapse; an investor who purports to move to formal dispute settlement sooner has no entitlement to use any of the dispute resolution mechanisms.