409 / 532
393
AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS…
which appears in the Mexico – Japan FTA, is the opportunity given to an investor
who considers that his claim raises questions of fact and law common to those upon
which the consolidation has been requested, but has not been named in the request
for consolidation, to ask the tribunal to consider the consolidation of its claim.
128
Sometimes consolidation cannot take place either in the context of an integrated
system of specialized dispute settlement, such as ICSID, because one or both parties
will refuse to discuss this alternative.
129
While there is no established hierarchy among
international tribunals, and the will of the parties must always be kept in mind, it is
not difficult to envisage that in this connection highly institutionalized courts could
play a meaningful role.
130
The International Court of Justice, for example, is one court that might have
the capacity for this type of overall supervision of inter-State tribunals and supervise
conciliation, not as an appeals body, but as one that might be able to manage parallel
cases from the point of view of what makes more sense in respect of jurisdiction. This
could also apply where the situation does not call for consolidation but for a decision
about which tribunal ought to have precedence.
131
Nonetheless, this could only
be through the amendment of relevant rules and statutes giving the International
Court of Justice the competence to decide once a court or a tribunal has called for
assistance.
132
Under a newly drafted competence clause included in investment treaties one
approach could be giving the respective tribunal an option of referring a decision
on how to handle claims which are being discussed in parallel. Based on the premise
of cooperation, this reference system would bring a certain unifying tendency into
the decentralized system of international arbitration and would ensure a conclusive
decision delivered by internationally credible judicial organs acting as an adjudicator
on the issues relating to the notion of parallel litigation.
133
Consolidation is designed to promote procedural efficiency and consistency
of decisions and to relieve the hardship to the respondent in having to defend
separately against multiple claimants.
134
Bearing in mind the predetermination of
128
P. Muchlinski, F. Ortino, Ch. Schreuer,
supra
note 58, p. 1035.
129
F. O. Vicuña,
supra
note 9, p. 7.
130
Ibid
, p. 10.
131
Ibid
, p. 10-11.
132
In Chapter II of the Statute of the International Court of Justice (Competence of the Court), Article
34, Section 1, it is stated that only states may be parties in cases before the Court. Therefore, there
would be a need to adopt new rules which would fashion the Court’s position in relation to the
consolidation of claims of parties to the disputes.
133
The fragmentation of the investment protection system may also direct the considerations of a body
facilitating consolidation talks towards several “higher instances” which could be approached in
such situations. Beside the International Court of Justice, bodies such as the Permanent Court of
Arbitration, ICSID or other institutions chosen by the parties or referred to in investment treaties
could come into question.
134
Ch. Schreuer, L. Malintoppi, A. Reinisch and A. Sinclair,
supra
note 27, p. 383.