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American Review of International Arbitration - ARIA - Vol. 17 No. 2 2006
American Review of International Arbitration - ARIA - (U.S. Price)
American Review of International Arbitration - ARIA (International Price)
ARIA Vol. 17 No. 2 2006
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This article examines the three types of procedures offered for the resolution
of investment disputes under NAFTA and CAFTA: arbitration under the ICSID
Convention, under the ICSID Additional Facilities Rules, and under the
UNCITRAL Rules. The options given raise the following questions: Which dispute
resolution methods are available to whom? What are the differences among the
different types of arbitration? Which procedure should an investor choose?
Should a state become a party to the ICSID Convention? This article answers
these questions and gives some hints to both investors and states involved in
investment arbitration.
I. INTRODUCTION TO INVESTMENT ARBITRATION
UNDER NAFTA AND CAFTA
A. Resolution of Investment Disputes
In Section B of Chapter 11, NAFTA1 deals with the resolution of investment
disputes. Investment disputes may arise under Section A of Chapter 11, which
guarantees investors from other states that are parties to NAFTA certain rights,
such as national treatment, most-favored nation treatment and the minimum
standard of treatment under international law.2 Investment disputes may also arise
from an allegation of an investor that a party to NAFTA has violated the
provisions of Articles 1503(2) and 1502(3)(a) of NAFTA regarding state
enterprises and monopolies.3 Section B of Chapter 11 provides a mechanism for
the settlement of those disputes. As is explicitly set out at the beginning of
Section B, its general purpose is twofold: first, to assure equal treatment among
investors of the parties to NAFTA in accordance with the principle of
Matthias Lehmann - D.E.A., Université Panthéon-Assas (Paris II); LL.M, Columbia University School of Law; Doctor iuris, University of Jena School of Law, Germany; Akademischer Rat (Assistant Professor), University of Bayreuth School of Law and Business, Germany.
