Environmental Engineering Reference
In-Depth Information
Conference on Trade and Development (UNCTAD) proposes ADR and dispute
prevention policies (DPPs) instead of investment arbitration.
254
Both approaches
require consent and cooperation because they are voluntary processes.
255
Both
concepts also offer the possibility to find a solution without interpretation of the
treaties and assessment of any violation.
256
Although most BITs do not mention
ADR explicitly, they do not prohibit them either.
257
ADR is a very complex term and is often used interchangeably with meditation,
which is frequently confused with conciliation.
258
Therefore, utilization of the term
ADR must happen in a very restrictive and well-defined way. With regard to the G/
M-BIT, Art. 11 does not mention ADR or DPPs, which does not exclude them
either. The term “g¨ tlich beileg(en)”
259
might be an indicator that ADR is a
possible solution to prevent arbitration. The ICSID Arbitration Rules also include
something comparable to ADR. According to Rule 21(2) of the Arbitration Rules,
the parties can request a pre-hearing to reach an amicable settlement prior to a
process. With regard to the ICC, it is questionable if all ADR possibilities can be
applied to an investor-state conflict.
260
The ICC also supports the setup of a
“dispute board”, which remains in place during the whole contract period and can
help to solve issues which come up.
261
Overall, ADR and DPPs are interesting new approaches to prevent investment
arbitration. They are worthwhile supporting, especially in the case of the Desertec
Concept but only in a supplementary way. As arbitration institutions or BITs
already include forms of ADR, there is no need for them to be part of separate
contracts between the host state and the investor.
262
2.3.2 Review of the ICSID Convention
It is necessary to review the ICSID Convention in respect of arbitration regulations.
The ICSID Convention encompasses three different types of proceeding, namely
the arbitration proceeding,
the conciliation proceeding and additional facility
254
UNCTAD (
2010b
), 22 et seq.; cf Metje (
2008
), 145-146 and 155-156; The difference between
ADR and arbitration rests in the fact that ADR does not require a previous consent and that during
ADR process consent is required. DPP on the other hand comes from the host state and the
investor
'
s “duty” is to make use of the offered new mechanism, in: UNCTAD (
2010b
), 23.
255
UNCTAD (
2010b
), 23.
256
UNCTAD (
2010b
), 24.
257
UNCTAD (
2010b
), 46.
258
McIlwrath and Savage (
2010
), 174 para 4-005.
259
To settle amicably.
260
UNCTAD (
2010b
), 57-58.
261
UNCTAD (
2010b
), 58.
262
Metje (
2008
), 157.
