Originally from Investment Treaty Arbitration and International Law - Volume 6

I. INTRODUCTION

Arbitration is attractive because it is an effective and efficient alternative to formal court proceedings.1 Unfortunately, investor-state arbitration is quickly becoming a slow and expensive method of dispute settlement. Given the bourgeoning list of international investment disputes in recent years, there is an obvious need to introduce mechanisms that will expedite the arbitration experience.

Early case resolution devices that lead to summary dispositions of disputes are a common feature in numerous areas of law.2 International investment law is no different. Early case resolution procedural devices are available for international institutions, such as the International Centre for Settlement of Investment Disputes (“ICSID”), regional investment treaties, such as the Dominican Republic-Central America-United States Free Trade Agreement (“CAFTA”), and a number of bilateral investment treaties (“BITs”).3 Indeed, the role of early case resolution in international arbitration has captured the attention of several scholars.4 The present author seeks to add to the ongoing discussion by arguing that two procedural devices of early investment claim resolution, ICSID Rule 41(5) and CAFTA Articles 10.20.4 and 10.20.5, are so effective that early case resolution should be expanded to include early determinations in favour of the claimant.

For the purposes of this paper, early case resolution is defined narrowly to include only procedural devices aimed at expediting the dismissal of incredible claims. The structure of the paper consists of five parts including the introduction. Part II provides an overview of ICISD Rule 41(5) and CAFTA Articles 10.20.4 and 10.20.5 to juxtapose the key portions of the rules as well as brief the reader on the relevant arbitral jurisprudence. Part III addresses the first segment of the argument by demonstrating that early case resolution is a vital component of investorstate arbitration. Part IV addresses the second segment of the argument by illustrating that a procedural device ought to be established to include early determinations in favour of the claimant. Part V concludes that international investment law may be ready to introduce claimant-friendly early resolution devices.