CLAIMANT asserts that the Sixty-day Period is a (i) non-mandatory precondition to arbitration, i.e. a precondition that serves only a directory purpose, (ii) and, therefore, does not bar CLAIMANT's access to arbitration [ClaM, paras. 40, 41, 42]. (iii) Furthemore, CLAIMANT argues that Tribunals should consider its non-compliance with the Sixty-day Period as a mer breach of contractual duty [ClaM, paras. 43,44].
As will be shown below, these claims are to be dismissed as unfounded, as the Sixty-day Period is clearly of a mandatory character (1), and CLAIMANT's non-compliance with the Sixty-day Period renders its claims barred, uncapable of enforcement (2). Moreover, CLAIMANT's suggestion that a non-compliaence with the Sixty-day Period is to be regarded as a breach of contract is simply wrong, as it is not possible to ascertain the damages (3).
(1) There is a consent among authorities that wheheter a pre-condition has a mandatory or non-mandatory, needs to be answered through the interpretation [Waincymer,pp. 128, 134,] by a case-by-case assesment [Borm/Scekovic, p. 238]. Such a interpretation must be done according to the applicable law [Waincymer, pp. 138, 141, Born, p. 834], i.e. UPICC [...].
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(2) Again, the interpretation is the key [Born, pp. 926, 935] General posibbilities [Born/Scekic, pp. 243, 244, Lew, p. 507].
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Art. 10.9. paras. 1,2 UPICC (Effects of expiration of limitation period)
(i) Non-compliance goes to the substance of the dispute [Born, p. 911].
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