For Against

Cooling
off period
1. Claimant gave a very short
notice.
2. Claimant deprived the
state of the opportunity to
redress the problem.
1. Merely procedural
2. It can continue side by side
alongwith the arbitration.
. !easonable steps ta"en by the
Claimant to resovle the dispute.
#. It is not cost effective.
MF$ 1. %ide wording of the
clause &In respect of all
matters covered by the
provisions of the
agreement'
2. (eritas investors have a
benefit over Fairland
investors.
)mbrella
Clause
1. It is an independent treaty
standard.
2. $o more distinction
between commercial
conduct and sovereign
conduct.
. *resence of contractual
claim does not matter as
claim is brought for
violation of treaty standard.
1. )mbrella clause contract of
privity +parties to concession
agreement is a state agency and not
state,
2. -.- v. *hillipines First abide
by contract clause/ because
submission of dispute to selected
forum being an obligation that
investor owes to -tate.
. -cope of obligation of
Contracting party is personal
obligation and not attributable or
indirect obligation.
0ne possible way of distinguishing -.- v. *araguay may be on the basis of
subse1uent commitments by *araguay2s representatives.
-tructure from !espondent2s side
1. 3he 3ribunal does not have 4urisdiction over disputes arising from the
concession contract.
a. Art. 25 of IC-I6 does not allow commercial disputes between
investors and state organs.
b. Art. I7 any investment dispute clause is different from &disputes
which arise concerning an investment.
c. )mbrella Clause
2. Fol" in the road provision
a. 6omestic dispute already resorted to.
b. Forum selection clause bars the 4urisdiction.
c. Alternative, 12 month period is not met and no imp