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AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS…
Southern Bluefin Tuna Case could offer some guidelines, because it contains such
consideration on the character of the claims by stating that:
“The Parties to this dispute […] are the same Parties grappling not with two
separate disputes but with what in fact is a single dispute arising under both
Conventions. To find that, in this case, there is a dispute actually arising under
UNCLOS which is distinct from the dispute that arose under the CCSBT
would be artificial.” 138
Such adoption of rules relating to the corporate identity of investors should
be supported by the adoption of common lis pendens rules. Taking into account
the experience originating in the application of the Brussels Regulation, an explicit
reference in investment treaties which would facilitate the power of the arbitral
tribunal to seize any actions in situations where there is an earlier arbitration would
increase the legal certainty and the safeguarding of the bona fide party.139
6. Conclusions
The proliferation of bilateral investment treaties has increased the complexity
of the different methods of dispute resolution in the international arena, including
the number of forums in which individuals and private corporations may claim
against breaches for which a host State holds responsibility. These treaties provide
the legal framework for investors from the contracting States and include a choice
of a dispute resolution mechanism with the possibility to proactively shape the rules
and regulations by which the proceedings will be governed.140
This gives rise to the concerns that investor-to-State arbitrations offer a large
number of instances of parallel proceedings in which the responsibility of a State
may be at scrutiny with regard to the same facts, including the same state measures.
This poses States with a difficult challenge: facing simultaneous claims arbitrated
on the basis of different BITs, asserted by a variety of investors of miscellaneous
origin. This does impose a heavy, perhaps even an unbearable, burden on them.
While some measures tailored to diminish the negative aspects of parallel litigation,
138 Southern Bluefin Tuna Case (Australia and New Zealand v. Japan, Award on Jurisdiction and
Admissibility, 4 August 2000, 39 ILM (2000), 1359, para. 54.
139 New measures concerning parallel arbitral and judicial proceedings could also take as their inspiration
the Hague Convention on Choice of Court Agreements Desiring to promote international trade and
investment through enhanced judicial co-operation which confers exclusive jurisdiction to the courts of
a contracting State chosen by the parties to the dispute to adjudicate their existing or future disputes.
This choice shall be seen as an exclusive one, unless the parties have agreed differently. The Convention
is available at: accessed: 5 February 2013.
140 These treaties provide the legal framework for investors of both States and include a detailed dispute
resolution mechanism, usually allowing the investor to start proceedings in different judicial or arbitral
fora. (B. M. Cremades, I. Madalena, supra note 3, p. 2) However, the detailed dispute resolution has
to be regarded as relating only to the possibility of commencing arbitration since most of the BITs
are silent on concrete rules and regulations and therefore leave the possibility for the parties to use the
informal and flexible approach which arbitration undoubtedly offers.