Originally from World Arbitration And Mediation Review (WAMR)

We are now in the second part of our program dealing with the impact of the gateway issues in investment arbitration. I have the very great privilege of having two stellar panelists with whom we decided that we do this program a little bit differently. We have decided first of all to address three topics and two of these topics are in a debate form. My panelists will take points for and against certain propositions having to do with the impact of the gateway issue in investment arbitration. The third topic is one where a lot of unanswered and unsettled questions are being raised, a little less conducive to a debate so we have decided to raise the issues, have a dialogue amongst the panel, and then have a dialogue with you. We are very much hoping that you will be proactive and provocative in your reactions.

A couple of things that are important. First of all, in order to make this entertaining and fun, and hopefully interesting for you, we have adopted this debate approach. Needless to say, nobody here is voicing personal views. This is very much for the hamming it up entertainment factor and so no one should be held to any particular view or position that they take. Secondly, because we have three topics to cover and to keep momentum, I will be quite ruthless on time. We are hoping roughly to spend about 20 minutes on each of our topics including the debate amongst the panelists and information and dialogue with you.

So the first of our topics has to do with what George termed the condition precedent to arbitrating in treaties and very much a debate of form over substance is the requirement, for example, to wait six months before starting arbitration to make efforts to settle or to negotiate with a state. Is that a requirement that the parties should be held to, and if not, why not? I have certain comments to make on this that I will make after our panelists’ debate.