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Investment arbitration is no different in this perspective. Although investment
arbitration includes some very distinct features,8 the impetus behind the commencement
of another set of proceedings is one and the same as in commercial arbitration. Yet,
these actual distinct features could be the primary reason for the fact that parallel
proceedings are more likely to appear in investment arbitration.
The manifold character and implications of this term reflect also on the multiplicity
of the definitions which can be given. The definition given by the Institut de Droit
International was very similar since it was held that: “parallel litigation in more than one
country between the same, or related, parties in relation to the same, or related, issues
may lead to injustice, delay, increased expense, and inconsistent decisions”.9
Parallel investment arbitrations are therefore primarily defined as multiple
arbitrations between states and investors of the same constructive identity which
concern a particular state’s measure of compliance with the state’s investment law
obligations. 10 Generally speaking, the narrow definition requires the crossing of
a high threshold, the ‘triple identity’ test, where the identity of parties, causes of
action and relief have to be evident in order for parallel proceedings to be found.
In this light, there are a range of methods to legally assess the existence of parallel
proceedings from a broader and more practical perspective. 11
8 Even when some aspects of commercial and investment arbitration are identical or very similar so
a comparison can be drawn between them, the latter’s essential features individualize its procedural
and substantial nature given the fact that a public entity is a party to the dispute. According to Schill,
investment treaty arbitration differs from international commercial arbitration in several regards,
namely the subject matter of the disputes, the relationship of the parties, the nature of the obligations
at play, and the nature and scope of the host state’s consent to arbitration. S. W. Schill, International
Investment and Comparative Public Law, (Oxford University Press, 2010), p. 12.
9 Institute de Droit International, “Yearbook of the Institut of International Law: The principles
for determining when the use of the doctrine of forum non conveniens and anti-suit injunctions is
appropriate”, Vol. 70-I, Session of Bruge, 2003, as cited in F. O. Vicuña, “Lis Pendens Arbitralis”, p.
1, available at: ,
accessed: 4 April 2014, pp. 1-2.
10 R. F. Hansen, “Parallel Proceedings in Investor-State Treaty Arbitration: Responses for Treaty-Drafters,
Arbitrators and Parties”, The Modern Law Review, Vol. 73 (July 2010), No. 4, p. 523.
11 The ILA’s Final Report on Lis Pendens and Arbitration contains the traditional triple identity
test (identity of the claims, of the causes of action and of the parties). See: The International Law
Association, “Final Report on Lis Pendens and Arbitration”, Report of the Seventy-Second Conference,
Toronto (2006), para. 41, available (together with the Report “Res judicata and Arbitration”, Berlin
2004) at: ; accessed: 4 April 2014.
A thorough analysis of the triple identity approach and its individual aspects is given by Hansen
when stating that the “commonality of parties is seen when arbitrations are initiated by the same
investor(s), including those of the same constructive identity as evidenced by a control test or other
means. Commonality of causes of action is similarly found through a non-formalistic approach, finding
arbitrations to be parallel if they challenge the consistency of a specific state measure with a specific
investment law obligation. This obligation may have been entered into by the state vis-à-vis investors of
multiple states through the state’s ratification of more than one investment treaty with this obligation.
Commonality of relief sought is generally met in parallel investment treaty arbitrations since investment
treaty claims almost exclusively seek monetary damages”. R. F. Hansen, supra note 10, pp. 532-533.