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this parallelism defying tool, if not applying the consolidation in itself, one shall at
least encourage the parties of the dispute to consider this method.
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• Adoption of new rules and measures
In such a situation it is apparent that the current means which should facilitate
the avoidance of parallel proceedings are not sufficient enough to fulfil their task. To
enhance the resolution of the problems which come together with this, the adoption
of new measures and changes of the current
status quo
have to be considered.
Such an approach would be based on steps which have been already argued by
the authors, such as the amendment of the New York Convention or the inspiration
drawn from the model presented by the Brussels Regulation. One of the options
which could bring about the desired change is a more progressive approach towards
the corporate nationality of investors in the meaning of the duty of tribunals and
courts to observe whether the claimants are not in fact one subject. The adoption
of rules which would determine the nationality of a corporate group in case of
multinational involvement in the investing company could facilitate a shift towards
the one group-one nationality rule. This would be a task for the contracting States to
determine, whether a provision precluding further claims, once the investor invoked
his rights under a certain BIT, should be incorporated into their BIT.
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The authors
believe that there could be more sources of inspiration. For example, the application
practice based on Article 101 TFEU (prohibition of coordinated or collusive
conduct). This Article does not apply to companies belonging to the same group of
companies, having the status of parent company and subsidiary, if the undertaking
from an economic unit within which the subsidiary has no real freedom to determine
its course of action on the market.
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A multinational enterprise would form a single
economic unit for the purposes of the investor definition under the BIT, in the sense
that this enterprise would be having an explicit role encompassing such tasks as the
aim to adopt consistent decisions following the achievement of an intended goal.
Whilst the legislative changes are depending on the agreement of the contracting
States, judicial bodies and arbitral tribunals, when aware of other pending disputes,
should not hesitate to place in their decisions an assessment of the fact whether they
deem the disputes and the claimants to be separate or the same. The decision in the
135
In addition, some authors refer to the fact that there are certain arguments against consolidations, which
relate to the intention and consent of the parties to submit their claims to arbitration: non-participation
in the appointment of the arbitral tribunal; potential infringements of a party’s substantive rights;
apportionment of arbitral fees and other costs. P. Muchlinski, F. Ortino, Ch. Schreuer,
supra
note 58,
p. 1041.
136
It is undisputed that multinational corporations are the most important players in the global trade
and economy. As Hansen suggests, the goal of detailed nationality provisions is to capture the
multinationality of contemporary business within the operation of bilateral treaties such as parallel
proceedings may be reduced and managed where unavoidable. Inspiration can be drawn from the
taxation principles under which connected corporations cannot be taxed as unconnected individuals.
See: R. F. Hansen, supra note 10, pp. 544 and 547.
137
European Commission decision dated 16.01.1991, IV32.732,
IJsselcentrale and others
, para. 23.