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5 J. World Investment & Trade 231 (2004)
Travelling the BIT Route: Of Waiting Periods, Umbrella Clauses and Forks in the Road

handle is hein.journals/jworldit5 and id is 231 raw text is: Travelling the BIT Route Of Waiting Periods, Umbrella Clauses and Forks in the Road Christoph SCHREUER* I. INTRODUCTION In recent years, the majority of cases in investment arbitration have been based on bilateral investment treaties (BITs). These treaties typically provide for investor-State arbitration by making an offer of consent to arbitration to eligible investors. Consent is perfected upon the acceptance of that offer by the investor, often simply through the institution of proceedings.' The provisions in BITs for investor-State arbitration are by no means uniform. Most of them refer to the International Centre for Settlement of Investment Disputes (ICSID). Often, the ICSID Additional Facility, the United Nations Commission on International Trade Law (UNCITRAL) or other forms of arbitration are offered in the alternative. The BITs also define the parameters for the activities of tribunals in investor-State arbitration. Jurisdiction may be subject to certain procedural requirements. For instance, a claimant may be required to attempt to reach an amicable settlement for a certain period of time. The competence of arbitral tribunals may depend on proceedings in the host State's domestic courts. For instance, the BIT may require the exhaustion of local remedies; or it may require the investor to choose between domestic courts and international arbitration. The subject-matter jurisdiction of tribunals also varies. It may be described narrowly or more widely. For instance, jurisdiction may be limited to claims alleging a violation of the BIT itself or it may extend to investment disputes in general. Three typical BIT clauses relating to the activities of arbitral tribunals in investor-State arbitration will be examined in this article. The first relates to waiting periods that investors must observe before instituting proceedings. The second requires investors to choose between litigation in domestic courts and international arbitration with the effect that once that choice has been made it becomes final. The third relates to clauses in BITS that put undertakings made by host States vis-a-vis investors under the BITS' protective umbrella. * Professor of International Law, University of Vienna, Austria. The author may be contacted at: <christoph.schreuer@univie.ac.at>. I For a description ofthis process, seeJ. Paulsson, Arbitration Without Privity, 10 Icsir Rev.-F.I.L.J. 232 (1995). This method for establishing jurisdiction was first accepted in AAPL v. Sri Lanka, Award, 27 June 1990, 4 ICSID Reports 246, at 250-251. It has since been followed in numerous cases.

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