Article 26: Settlement of Disputes between an Investor and a Contracting Party

The reference to treaty obligations in the penultimate sentence of Article 10(1) does not include decisions taken by international organisations, even if they are legally binding, or treaties which entered into force before 1 January 1970.

(1) Disputes between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former, which concern an alleged breach of an obligation of the former under Part III shall, if possible, be settled amicably.

(2) If such disputes cannot be settled according to the provisions of paragraph (1) within a period of three months from the date on which either party to the dispute requested amicable settlement, the Investor party to the dispute may choose to submit it for resolution:

(a) to the courts or administrative tribunals of the Contracting Party party to the dispute;

(b) in accordance with any applicable, previously agreed dispute settlement procedure; or

(c) in accordance with the following paragraphs of this Article.

Article 26(2)(a) should not be interpreted to require a Contracting Party to enact Part III of the Treaty into its domestic law.

(3) (a) Subject only to subparagraphs (b) and (c), each Contracting Party hereby gives its unconditional consent to the submission of a dispute to international arbitration or conciliation in accordance with the provisions of this Article.

(b) (i) The Contracting Parties listed in Annex ID do not give such unconditional consent where the Investor has previously submitted the dispute under subparagraph (2)(a) or (b). (ii) For the sake of transparency, each Contracting Party that is listed in Annex ID shall provide a written statement of its policies, practices and conditions in this regard to the Secretariat no later than the date of the deposit of its instrument of ratification, acceptance or approval in accordance with Article 39 or the deposit of its instrument of accession in accordance with Article 41.

(c) A Contracting Party listed in Annex IA does not give such unconditional consent with respect to a dispute arising under the last sentence of Article 10(1).

(4) In the event that an Investor chooses to submit the dispute for resolution under subparagraph (2)(c), the Investor shall further provide its consent in writing for the dispute to be submitted to:

(a) (i) The International Centre for Settlement of Investment Disputes, established pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of other States opened for signature at Washington, 18 March 1965 (hereinafter referred to as the “ICSID Convention”), if the Contracting Party of the Investor and the Contracting Party party to the dispute are both parties to the ICSID Convention; or

(ii) The International Centre for Settlement of Investment Disputes, established pursuant to the Convention referred to in subparagraph (a)(i), under the rules governing the Additional Facility for the Administration of Proceedings by the Secretariat of the Centre (hereinafter referred to as the “Additional Facility Rules”), if the Contracting Party of the Investor or the Contracting Party party to the dispute, but not both, is a party to the ICSID Convention;

(b) a sole arbitrator or ad hoc arbitration tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law (hereinafter referred to as “UNCITRAL”); or

(c) an arbitral proceeding under the Arbitration Institute of the Stockholm Chamber of Commerce.

(5) (a) The consent given in paragraph (3) together with the written consent of the Investor given pursuant to paragraph (4) shall be considered to satisfy the requirement for:

(i) written consent of the parties to a dispute for purposes of Chapter II of the ICSID Convention and for purposes of the Additional Facility Rules;

(ii) an “agreement in writing” for purposes of article II of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, 10 June 1958 (hereinafter referred to as the “New York Convention”); and

(iii) “the parties to a contract [to] have agreed in writing” for the purposes of article 1 of the UNCITRAL Arbitration Rules.

(b) Any arbitration under this Article shall at the request of any party to the dispute be held in a state that is a party to the New York Convention. Claims submitted to arbitration hereunder shall be considered to arise out of a commercial relationship or transaction for the purposes of article I of that Convention.

(6) A tribunal established under paragraph (4) shall decide the issues in dispute in accordance with this Treaty and applicable rules and principles of international law.

(7) An Investor other than a natural person which has the nationality of a Contracting Party party to the dispute on the date of the consent in writing referred to in paragraph (4) and which, before a dispute between it and that Contracting Party arises, is controlled by Investors of another Contracting Party, shall for the purpose of article 25(2)(b) of the ICSID Convention be treated as a “national of another Contracting State” and shall for the purpose of article 1(6) of the Additional Facility Rules be treated as a “national of another State”.

(8) The awards of arbitration, which may include an award of interest, shall be final and binding upon the parties to the dispute. An award of arbitration concerning a measure of a sub-national government or authority of the disputing Contracting Party shall provide that the Contracting Party may pay monetary damages in lieu of any other remedy granted. Each Contracting Party shall carry out without delay any such award and shall make provision for the effective enforcement in its Area of such awards.

AES Corporation and Tau Power B.V. v. Republic of Kazakhstan, ICSID Case No. ARB/10/16

Award, 1 November 2013, paragraph 188-193; 198

AES Summit Generation Limited and AES-Tisza Erömü Kft v. The Republic of Hungary, ICSID Case No. ARB/07/22

Award, 23 September 2010, paragraphs 6.16; 6.3.3; 6.4.1-6.4.2; 7.6.2-.6.12

Alapli Elektrik B.V. v. Republic of Turkey, ICSID Case No. ARB/08/13

Excerpts of Award, 16 July 2012, paragraphs 315; 381

Dissenting Opinion of Marc Lalonde, 16 July 2012, paragraphs 5

Mohammad Ammar Al-Bahloul v. Republic of Tajikistan, SCC Case No. V064/2008 

Partial Award on Jurisdiction and Liability, 2 September 2009, paragraphs 113; 122-126; 140; 148-149; 158; 160-164

Award, 8 June 2010, paragraphs 40-42

Limited Liability Company Amto v. Ukraine, SCC Case No. 080/2005

Award, 26 March 2008, paragraphs 46-53; 56

Anatolie Stati, Gabriel Stati, Ascom Group S.A. and Terre Raf Trans Traiding Ltd v. Republic of Kazakhstan, SCC Case No. V116/2010

Award, 19 December 2013, paragraphs 708-709; 851-8

Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. v. Kingdom of Spain(ICSID Case No. ARB/13/31)

Award, 15 June 2018, paragraphs 210-212; 218-224; 316

Azpetrol International Holdings B.V., Aspettrol Group B.V., Aspetrol Oil Services Group B.V. v. The Republic of Azerbaijan, ICSID Case No. ARB/06/15

Award, 8 September 2009, paragraph 105

Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic, ICSID Case No. ARB/14/3

Final Award, 27 December 2016, paragraphs 264; 271-273; 286; 289

Cem Cengiz Uzan v.  Republic of Turkey, SCC Case No. V 2014/023

Award on Respondent's Preliminary Objections, 20 April 2016, paragraph 135; 140-156; 165; 184-187

Cementownia "Nowa Huta" S.A. v. Republic of Turkey, ICSID Case No. ARB(AF)/06/2

Award, 17 September 2009, paragraphs 113-114; 147-149

Charanne and Construction Investments v. Spain, SCC Case No. V 062/2012

Award, 21 January 2016, paragraph 400; 417; 428-432; 438-439; 447

Eiser Infrastructure Limited and Energia Solar Luxembourg S.à.R.L. v. Kingdom of Spain, ICSID Case No. ARB/13/36 

Award, 4 May 2017, paragraphs 194-199; 320; 345

Electrabel S.A. v. Republic of Hungary, ICSID Case No. ARB/07/19

Decision on Jurisdiction, Applicable law and Admissibility, 30 November 2012, paragraph 4.112; 4.119-4.146

Energoalians SARL v. Republic of Moldova, UNCITRAL

Award, 23 October 2013, Paragraphs 121-122; 131

Dissenting Opinion of Dominic Pellew, 23 October 2013, paragraphs 43-48

State Enterprise "Energorynok" (Ukraine) v. The Republic of Moldova, SCC Arbitration V 2012/175

Final Award, 29 January 2015, paragraphs 56-58; 90; 101

Eskosol S.p.A. in liquidazione v. Italian Republic, ICSID Case No. ARB/15/50

Decision on Respondent's Application under Rule 41(5), 20 March 2017, paragraphs 87-89; 101-102

Europe Cement Investment & Trade S.A. v. the Republic of Turkey, ICSID Case No. ARB(AF)/07/2

Award, 13 August 2009, paragraphs 140-142

Greentech AS and others v Spain, SCC Arbitration V (2015/150)

Final Award, 14 November 2018, paragraphs 209-219

Partial Dissenting Opinion of Raul Vicuesa, 30 October 2018, paragraphs 1-11

Hulley Enterprises Limited (Cyprus) v. Russian Federation, PCA Case No. AA 226

Interim Award on Jurisdiction and Admissibility, 30 November 2009, paragraph 76

Final Award, 18 July 2014, paragraphs 348; 382; 388-390; 1343-1346; 1352; 1355; 1358-1353; 1364; 1370

Memorandum Opinion, US District Court of Columbia, 30 September 2016, p. 16

Isolux Netherlands, BV v. Kingdom of Spain, SCC Case V2013/153

Final Award, 17 July 2016, paragraphs 634-636; 644-654; 696-703

Ioannis Kardassopoulos v. The Republic of Georgia, ICSID Case No. ARB/05/18

Decision on Jurisdiction, 6 July 2007, paragraphs 145-146; 194; 196; 230; 247-248

Award, 3 March 2010, paragraph 211

Khan Resources Inc., Khan Resources B.V. and CAUC Holding Company Ltd. v. Government of Mongolia, UNCITRAL

Decision on Jurisdiction, 25 July 2012, paragraphs 326; 383-388; 437-438

Libananco Holdings Co. Limited v. Republic of Turkey, ICSID Case No. ARB/06/8

Award, 2 September 2011, paragraphs 121; 536; 539-547

Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan, ICSID Case No. ARB/07/14 

Excerpts of Award, 22 June 2010, Paragraphs 57; 187; 193-194

Mamidoil Jetoil Greek Petroleum Products Societe S.A. v. Republic of Albania, ICSID Case No. ARB/11/24

Award, 30 March 2015, paragraphs 276-278; 293-294; 372-373; 375-378; 469; 480-495

Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1

Award, 16 May 2018, paragraphs 313; 321-323; 332-340

Novenergia II - Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v. The Kingdom of Spain, SCC Case No. 2015/063

Award, 15 February 2018, paragraph 449-453; 459-466

Nykomb Synergetics Technology Holding AB v. The Republic of Latvia, SCC

Award, 16 December 2003, paragraphs 2.2-2.3; 4.3.3

Petrobart Limited v. The Kyrgyz Republic, SCC Case No. 126/2003

Award, 29 March 2005, page 64-66

Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24

Decision on Jurisdiction, 8 February 2005, paragraphs 118; 130-141

RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à r.l. v. Kingdom of Spain, ICSID Case No. ARB/13/30

Decision on Jurisdiction, 6 June 2016, paragraph 75-90; 197

Veteran Petroleum Limited (Cyprus) v. Russian Federation, PCA Case No. AA 228

Interim Award on Jurisdiction and Admissibility, 30 November 2009, paragraph 76

Final Award, 18 July 2014, paragraphs 348; 382; 388-390; 1343-1346; 1352; 1355; 1358-1353; 1364; 1370

Memorandum Opinion, US District Court of Columbia, 30 September 2016, p. 16

Yukos Universal Limited (Isle of Man) v. Russian Federation, PCA Case No. AA 227

Interim Award on Jurisdiction and Admissibility, 30 November 2009, paragraphs76

Final Award, 18 July 2014, paragraphs 348; 382; 388-390; 1343-1346; 1352; 1355; 1358-1353; 1364; 1370

Memorandum Opinion, US District Court of Columbia, 30 September 2016, p. 16