CYIL 2014

AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS… In the Pantechniki case, which concerned a Greek-Albanian BIT, the investor alleged that he was not barred by the fork-in-the-road clause precluding the investor’s claims before ICSID if he brought the “same matter” to the national courts. The Tribunal held that the investor had already made his choice by referring the matter to the national courts. However, even if the claims are being decided by the national courts, this does not preclude the investor from claiming a breach of the BIT based on an allegedly committed denial of justice. Commentators have suggested that the Pantechiniki case might lend practical effect to fork-in-the-road clauses by requiring parties to look at the “subject-matter of the claims” rather than simply identifying their “legal character” as either contract or treaty claims. 76 The tribunals (and courts) will have to engage in a discretionary review in a certain manner when it comes to the notion of the identity of the “fundamental basis of a claim”. The Woodruff, 77 the Vivendi 78 and Pantechniki Tribunals sought to establish whether the claims presented to international arbitration have an independent and autonomous standing, which is, according to the Tribunals, “necessary to determine whether claimed entitlements have the same normative source”, and if the alleged claim “truly does have an autonomous existence outside the contract”, since “the fundamental basis of the claim is a treaty laying down an independent standard by which the conduct of the parties is to be judged”. 79 In Toto Costuzioni Generali S.P.A. v. Republic of Lebanon 80 the Tribunal decided that the dispute markedly deflected from the approach taken by the Pantechniki Tribunal. As in the Greek-Albanian case, Lebanon relied on a defence stating that, since the investor has already, and with a “final” effect, chosen the national courts on the basis of an alleged contractual breach, 81 this had caused a status quo under which 76 L. A. Steven, “Two Roads - Two tribunals: recent “Fork-in-the-Road” Interpretations”, Kluwer Arbitration Blog, available at: http://kluwerarbitrationblog.com/blog/2009/12/16/two-roads-%E2%80%93-two tribunals-recent-%E2%80%9Cfork-in-the-road%E2%80%9D-interpretations/; accessed : 4 April 2014. 77 Woodruff arbitration, USA v Venezuela (American-Venezuelan Commission). 9 R. INT’L ARB. AWARDS 213 (U.S.-Venez. Cl. Comm’n) 1903. 78 Compañia de Aguas del Aconquija S.A. and Vivendi Universal v. Argentine Republic , Decision on Annulment, 03 July 2002, ICSID Case No. ARB/97/3. 79 Pantechniki S.A. Contractors &Engineers (Greece) v.The Republic of Albania , ICSIDCase No. ARB/07/21, Award, 30 July 2009, para. 62 and 64 and Vivendi , supra note 78, para. 101. 80 Toto Costruzioni Generali S.p.A. v. Republic of Lebanon , ICSID Case No. ARB/07/12. 81 In SGS v. Pakistan, the seminal decision concerning BIT and contractual claims, the Tribunal decided on claims arising out of contractual and BIT breaches. The BIT concluded between Switzerland and Pakistan did not contain a fork-in-the-road clause or a requirement for the exhaustion of national remedies. Before the investor initiated the ICSID proceedings, it had already commenced court proceedings in Switzerland on the basis of a contractual breach. Subsequently, the Government initiated arbitration proceedings in Islamabad in accordance with the contract. SGS pursued its treaty claims, starting an international arbitration against Pakistan before ICSID. Pakistan objected to the jurisdiction of the ICSID tribunal on the grounds that SGS’s claims were purely contractual and not covered by the BIT and that the only forum capable of resolving the contract claims was the Pakistani arbitral tribunal. Pakistan further requested that the ICSID tribunal stay the proceedings until the conclusion of the arbitration in Pakistan. The SGS/Pakistan tribunal upheld jurisdiction over the investor’s claims for breaches of the BIT

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