When Two Rights Make a Wrong - Chapter 9 - Investment Treaty Arbitration and International Law - Volume 12
Originally from Investment Treaty Arbitration and International Law - Volume 12
As the vast network of bilateral and multilateral investment treaties has expanded and proliferated over the last two decades or so, so too have the available fora for investment disputes. In many cases, the same set of underlying facts and circumstances may give rise to multiple potential avenues for dispute settlement—and claimants often simultaneously make use of more than one. Yet given the ad hoc nature of the regime, in which treaty- or contract-based rights may arise from multiple instruments, there is typically no clear hierarchy as between the available fora for dispute settlement, no previously-settled mechanism for consolidation of related or overlapping claims, and no compulsory doctrine, such as mandatory joinder, discouraging the pursuit of parallel proceedings. As a result, the incidence of parallel proceedings has become a common thread in investment disputes—as have the concerns that they raise.
This paper argues that, when faced with the issue of contested parallel proceedings, tribunals should look past the basic facts of the claim as constructed by the claimants to assess whether the relationship between the two proceedings merits a stay or dismissal, or any other intervention by the tribunal, and should not hesitate to intervene when the existence of multiple proceedings is abusive or unduly prejudicial. It begins, first, by providing a brief background on parallel proceedings in investment cases. Second, it provides an overview of several recent cases in which tribunals have grappled with the effect of a parallel proceeding on the tribunal’s jurisdiction or on the admissibility of claims. Third, it assesses three different types of relationships between claims and/or claimants in parallel proceedings, and the aspects of investment law that may lead to parallel proceedings in these situations, assessing the various factors that tribunals should consider in these contexts. It then briefly concludes.