International Arbitration After Pursue Remedies - 1157 Words

Article 21.2 permits investors to opt for international arbitration after pursuing remedies in domestic courts, but not to engage in local remedies during or subsequent to investment arbitration. If the investor submits a claim to international arbitration, it must waive its rights to continue or initiate a claim based on the same measure in domestic courts. This means domestic courts have the opportunity to provide redress for wrongs before they are raised at the international level. Investors may continue or initiate claims at the domestic level following submission of a claim at international level in cases where the investor seeks â€Å"injunctive, declaratory or other extraordinary relief.† This waiver clause is contained in many BITs and†¦show more content†¦However, the provision serves an important purpose, which is to limit duplicative decisions on the same issue. This purpose is evident in the decisions of tribunals, which will now be examined. In Waste Management v United Mexican States, following a dispute between the investor and the government of Mexico, the investor filed the claim and supplied a waiver which included a sentence that stated that the waiver did not apply to any ongoing dispute in domestic courts surrounding violations of law other than NAFTA, including Mexican law. Mexico pointed to ongoing legal proceedings in domestic Mexican courts and argued that the waiver was insufficient. The investor countered that scope of the waiver is limited to NAFTA, and thus it was not required to abandon domestic proceedings based on a violation of domestic law. The tribunal rejected this argument and acknowledged that while it might be possible in some instances for proceedings to exist at domestic level that did not relate to those in NAFTA arbitration, the tribunal found that in this case, the different claims were based on the same measure. Because the purpose of the waiver is to prevent â€Å"double benefit† for the same measure, the tribunal found that the