CYIL 2014

ZUZANA JAHODNÍKOVÁ – CYIL 5 ȍ2014Ȏ 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. 135 • 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. 136 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. 137 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. MILOŠ OLÍK

394