CYIL 2014

ZUZANA JAHODNÍKOVÁ – CYIL 5 ȍ2014Ȏ investment claim ( eg. alleged breach of the fair and equitable standard to be accorded to investors). 15 The majority of investment arbitrations are not publicly announced, making the extent to which parallel proceedings may be occurring difficult to ascertain from the perspective of an outside observer. It should be noted, however, that the BITs offer protection not only to direct investments made by the nationals of BIT States but also extend to indirect investments made by enterprises which could be under the control of nationals coming from a non-BIT party. The share capital of a company established in the host State as a necessary vehicle for investment may be divided up amongst many minority shareholders of different nationalities, which does not exclude the eventual possibility for the host State to face various simultaneous claims, under different BITs, regarding the same State measures. 16 Therefore, the broadly fashioned definition of an investor qualified to assert his claims in investment arbitration is one of the most frequent causes actuating parallelism. As emphasized in this section of the paper, parallel proceedings, within the area of investment arbitration, are regarded as, “multiple legal proceedings concerning one state’s alleged breach of a particular investment law obligation with respect to the same investor or investors”. 17 With reference to the nature of international investment, the broad notion of the term “investor” and the complexity of investment and contractual obligations taken up by the States, it needs to be emphasized that parallel proceedings can emerge without any substantial difficulty in cases involving dealings between investors and States. 3. Making Use of Parallel Litigation in Investment Arbitration When analyzing parallelism in investment arbitration, one of the crucial questions has to be: who has (or who can) have an interest in the frustration of any pending proceedings by triggering parallel litigation? The various scenarios in which parallel litigation may arise can be motivated by a number of incentives, which range from the possibility to “extend” the dispute into another forum to the possibility of seeking remedial measures. As will be presented later on in this section, parallel proceedings are sought by the parties when: • they aim to gain a certain advantage which can be used subsequently in the first proceedings (such as additional access to information or defence strategies); 15 R. F. Hansen, supra note 10, p. 527. 16 B.M. Cremades, I. Madalena, supra note 3, p. 2. It is necessary to note that the Tribunal in CMS v Argentina is often cited for its decision concerning the non-controlling minority shareholders’ right to bring a claim. In this case the Tribunal took a pioneer approach based on recognition of the rights of minority shareholders rights since their investment qualifies as an “investment” for the purposes of protection offered to investors through the ICSID Convention and BITs. See CMS Gas Transmission Company and The Republic of Argentina , Case No. ARB/01/8, (42 ILM 788), Decision of the Tribunal on Objections to Jurisdiction, 17 July 2003. 17 R. F. Hansen, supra note 10, p. 532. MILOŠ OLÍK

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