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Parallel proceedings in international arbitration Day 3

Arbitration Academy Special course Session 2012 Prof. Gabrielle Kaufmann-Kohler. Parallel proceedings in international arbitration Day 3. Outline of today’s class Other instruments and overall assessment Instruments 1.1 Some treaty - specific instruments

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Parallel proceedings in international arbitration Day 3

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  1. Arbitration Academy Special course Session 2012 Prof. Gabrielle Kaufmann-Kohler Parallel proceedings in international arbitrationDay 3

  2. Outline of today’s class Other instruments and overallassessment • Instruments 1.1 Sometreaty-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 • Recap and overallassessment

  3. 1.1 Fork in the road • requires the claimant to make an irrevocablechoice of forum • E.g. Art. 8(2) Argentina-France BIT: « If the dispute could not besolvedwithin 6 months […], itshallbesubmittedat the investor’srequest: • 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, hischoice of proceduresisconsidered final. »

  4. 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 […].

  5. 1.1 Umbrella clause Greece Model BIT «  Each party shall observe an obligation itmay have enteredintowith regard to a specificinvestment of an investor of the otherContracting Party. »

  6. US Model BIT 2012 (Art. 24) « 1. In the eventthat a disputing party considersthat an investment dispute cannotbesettled by consultation and negotiation: • The claimant, on itsownbehalf, maysubmit to arbitration underthis Section a claim (i) that the respondent has breached […] (C) An investment agreement; »

  7. 1.2 Class / mass arbitrations An illustration: Abaclat v. Argentina • Facts • Issues • Outcome • Difficulties

  8. 1.3 Antisuit injunctions An illustration: Weisfisch v. Julius (English Court of Appeal [2006], Lloyd’s Rep. 716)

  9. «  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. »

  10. ECJ Judgment in AllianzSpA 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 personfromcommencing or continuingproceedingsbefore the courts of anotherMember State on the groundthatsuchproceedingswouldbecontrary to an arbitration agreement. »

  11. 1.4 Intervention and joinder of third parties Article 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…

  12. 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?

  13. Is this a problem? • If it is, how can it be fixed? De lege ferenda ideas?

  14. The End

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