Originally from: Investment Treaty Arbitration and International Law - Volume 6

I. INTRODUCTION

Dispositive motions in the United States provide a powerful litigation tool.1 Such motions are frequently used in civil litigation to conserve time and expenses, alleviate overloaded court dockets and to set aside frivolous and unmeritorious claims.2 Recently, treaties for the protection of investment have included express provisions similar to the United States’ dispositive motions that authorize investment tribunals to dismiss claims at an early stage in the arbitral proceedings.3 Preliminary procedures have been incorporated into numerous bilateral investment treaties (‘BITs’),4 Free Trade Agreements (‘FTAs’),5 such as the Central America-Dominican Republic-United States FTA (‘CAFTA-DR’)6 as well as the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (‘ICSID’).7

Parallel to the United States dispositive motions, these early case resolution provisions promote the use of efficient case management tools to address burgeoning case dockets as well as include safety mechanisms that prevent investors from abusing the arbitration process. In a short explanation of the CAFTA-DR, the Office of the United States Trade Representative explained:

The CAFTA-DR includes safeguards to ensure that investors cannot abuse the arbitration process, including provisions (based on U.S. court rules) that allow tribunals to dismiss frivolous claims at an early stage of the proceedings or to award attorneys’ fees and costs as a deterrent to such claims.8