CYIL 2014

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, 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: www.hcch.net/index_en.php?act=conventions.text&cid=98; 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. 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.

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