[I: WAITING PERIOD] Let me now proceed to the issue of the waiting
period which was not complied with by Claimant.
[R: JURISDICTIONAL] Respondent recalls the conclusions of the
tribunal of Enron v. Argentina, which in § 88 of its award held that the
waiting period requirement is very much a jurisdictional one and if the
claimant does not comply with it, the claims have to be rejected on the
jurisdictional basis.
[R: PROCEDURAL INAPPLICABLE] It could be objected that other
tribunals – like Lauder v. Czech Republic or SGS v. Pakistan – did not
treated the waiting period requirement in the same way and interpreted
it as a merely procedural requirement. However, findings of this
tribunals are inapplicable because there was strong evidence that the
negotiations with state would lead to no settlement.
[A: PERIODS] In the present case, although Claimant notified
Respondent with a written application for amicable settlement [11
September 2009] after the buy-out clause was invoked and the dispute
crystalized [27 August 2009];
as could be inferred from § 14 of Uncontested facts Claimant submitted
the dispute directly to the ICSID tribunal [28 October 2009] without
waiting for six month for Respondents response as was obliged under
Article 11 of the BIT.
Only two months expired, when the dispute was submitted to ICSID.
[C] Therefore, it can be concluded, that the jurisdiction of the tribunal is
not established, if Claimant submits its claims before the end of the
waiting period.