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Parallel proceedings in international arbitrationDay 3

Arbitration Academy Special course

Session 2012 Prof. Gabrielle Kaufmann-Kohler

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Outline of today’s class

Other instruments and overall assessment

1. Instruments1.1 Some treaty-specific instruments– Fork in the road and waiver– Umbrella clause

1.2 Class arbitrations

1.3 Anti-suit injunctions

1.4 Joinder of third parties

2. Recap and overall assessment

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1.1 Fork in the road

• requires the claimant to make an irrevocable choice of forum

• E.g. Art. 8(2) Argentina-France BIT:

« If the dispute could not be solved within 6 months […], it shall be submitted at the investor’s request:

– either to the national jurisdictions of the Contracting Party involved in the dispute;

– or to international arbitration […].

Once an investor has submitted the dispute to the jurisdiction of the contracting Party

involved or to international arbitration, his choice of procedures is considered final. »

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1.1 Waiver

E.g. Art. 1121(1) NAFTA

1. A disputing investor may submit a claim under Article 1116 to arbitration only if:

(a) the investor consents to arbitration in accordance with the procedures set out in this Agreement; and

(b) the investor and, […] waive their right to initiate or continue before any administrative tribunal or court under the law of any Party, or other dispute settlement procedures, any proceedings

with respect to the measure of the disputing Party that is alleged to be a breach referred to in Article 1116, except […].

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1.1 Umbrella clause

Greece Model BIT

«  Each party shall observe an obligation it may have entered into with regard to a specific investment of an investor of the other Contracting Party. »

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US Model BIT 2012 (Art. 24)

« 1. In the event that a disputing party considers that an investment dispute cannot be settled by consultation and negotiation:

(a)The claimant, on its own behalf, may submit to arbitration under this Section a claim

(i) that the respondent has breached

[…]

(C) An investment agreement; »

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1.2 Class / mass arbitrations

An illustration: Abaclat v. Argentina

– Facts

– Issues

– Outcome

– Difficulties

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1.3 Antisuit injunctions

An illustration: Weisfisch v. Julius (English Court of Appeal [2006], Lloyd’s Rep. 716)

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«  Further, for the English court to restrain an arbitrator under an agreement providing for arbitration with its seat in a foreign jurisdiction to which the parties unquestionably agreed would infringe the principles in the New York Convention 1958.»

« Exceptional circumstances may, nonetheless, justify the English court in taking such action. »

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ECJ Judgment in Allianz SpA v. West Tankers Inc. : no anti-suit injunctions to protect arbitrations in the European Union

« It is incompatible with Council Regulation (EC) No 44/2001 […] for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement. »

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1.4 Intervention and joinder of third partiesArticle 4 SRIA 2012 : Consolidation and joinder

2. Where one or more third persons request to participate in arbitral proceedings already pending under these Rules or where a party to pending arbitral proceedings under these Rules requests that one or more third persons participate in the arbitration, the arbitral tribunal shall decide on such request, after consulting with all of the parties, including the person or persons to be joined, taking into account all relevant circumstances.

New slide…

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2 . Recap and overall assessment

– Which instruments work for which types of multiple proceedings?

– Are there types of multiple proceedings for which there is no remedy?

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– Is this a problem?

– If it is, how can it be fixed? De lege ferenda ideas?

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