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solutions which have been adopted, since “the tribunals declined their jurisdiction
in favour of a specialized forum and deference to the European Court of Justice.”120
The doctrine of forum non-conveniens may be quite an effective tool for the
guidance of international arbitral tribunals and courts dealing with transnational parallel
proceedings and domestic litigation. A court or tribunalmay refuse to exercise jurisdiction
when a different court or tribunal is clearly more appropriate to decide the dispute.121 A
common denominator of all these legal developments is that the jurisdiction should be
localized in the country that has the most genuine connection with the dispute, besides
when special considerations intervene as an exception.122 All these measures, principles
and doctrines are fashioned in order to provide for, “appropriate solutions to bona fide
litigants and curtail the abuse that the parallel proceeding might entail with the purpose
of frustrating the legitimate rights of another party”.123
However, one of the drawbacks of the concept is the fact that, although looking
promising, it relies on the agreement of the parties to “transfer” their dispute, or stall
the parallel proceedings and agree to pursue their claim before the forum which was
selected as the most appropriate one. In the absence of such an agreement one could
scarcely expect an arbitral tribunal to refuse its jurisdiction which was based on the
parties’ agreement.
• Consolidation
Consolidation is the joinder of separate proceedings on the basis of common
questions of law or fact in the underlying disputes.124 The UNCITRAL Rules, the
ICSID Convention and the Additional Facility Rules fail to assess consolidation, even
though the practice may instigate a call for a change.125 Notwithstanding the lack of
regulatory enactment, the 1998 ICC Rules of Arbitration discusses the consolidation
of arbitral proceedings only in a restricted manner.126
The NAFTA has been the first multilateral treaty to do so.127 Pursuant to
Article 1126 (2), a tribunal may (in the interests of fair and efficient resolution
of claims, and after hearing the disputing parties) order consolidation and assume
jurisdiction over all or some of the claims, and hear all of them simultaneously. It
remains to be discussed whether this Article can also facilitate consolidation of claims
which are different by nature but asserted by the same subject. A novel element,
120 F. O. Vicuña, supra note 9, p. 6.
121 Ibid, p. 7.
122 Ibid, p. 8-9.
123 Ibid, p. 2.
124 P. Muchlinski, F. Ortino, Ch. Schreuer, supra note 58, p. 353.
125 B. M. Cremades, I. Madalena, supra note 3, p. 25.
126 UNCITRAL Rules, ICC Rules, ICSID Convention and ICSID Additional Facility Rules.
127 Consolidation has also been included in the recent Free Trade Agreements and their investment
chapters signed by the NAFTA Member States. On additional information about consolidation see:
International Investment Perspectives, “Consolidation of Claims: A Promising Avenue for Investment
Arbitration?”, Part II, Chapter 8, OECD 2006 Edition, available at:
internationalinvestmentagreements/40079691.pdf; accessed: 4 April 2014.