CYIL 2014

AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS… which appears in the Mexico – Japan FTA, is the opportunity given to an investor who considers that his claim raises questions of fact and law common to those upon which the consolidation has been requested, but has not been named in the request for consolidation, to ask the tribunal to consider the consolidation of its claim. 128 Sometimes consolidation cannot take place either in the context of an integrated system of specialized dispute settlement, such as ICSID, because one or both parties will refuse to discuss this alternative. 129 While there is no established hierarchy among international tribunals, and the will of the parties must always be kept in mind, it is not difficult to envisage that in this connection highly institutionalized courts could play a meaningful role. 130 The International Court of Justice, for example, is one court that might have the capacity for this type of overall supervision of inter-State tribunals and supervise conciliation, not as an appeals body, but as one that might be able to manage parallel cases from the point of view of what makes more sense in respect of jurisdiction. This could also apply where the situation does not call for consolidation but for a decision about which tribunal ought to have precedence. 131 Nonetheless, this could only be through the amendment of relevant rules and statutes giving the International Court of Justice the competence to decide once a court or a tribunal has called for assistance. 132 Under a newly drafted competence clause included in investment treaties one approach could be giving the respective tribunal an option of referring a decision on how to handle claims which are being discussed in parallel. Based on the premise of cooperation, this reference system would bring a certain unifying tendency into the decentralized system of international arbitration and would ensure a conclusive decision delivered by internationally credible judicial organs acting as an adjudicator on the issues relating to the notion of parallel litigation. 133 Consolidation is designed to promote procedural efficiency and consistency of decisions and to relieve the hardship to the respondent in having to defend separately against multiple claimants. 134 Bearing in mind the predetermination of

128 P. Muchlinski, F. Ortino, Ch. Schreuer, supra note 58, p. 1035. 129 F. O. Vicuña, supra note 9, p. 7. 130 Ibid , p. 10. 131 Ibid , p. 10-11.

132 In Chapter II of the Statute of the International Court of Justice (Competence of the Court), Article 34, Section 1, it is stated that only states may be parties in cases before the Court. Therefore, there would be a need to adopt new rules which would fashion the Court’s position in relation to the consolidation of claims of parties to the disputes. 133 The fragmentation of the investment protection system may also direct the considerations of a body facilitating consolidation talks towards several “higher instances” which could be approached in such situations. Beside the International Court of Justice, bodies such as the Permanent Court of Arbitration, ICSID or other institutions chosen by the parties or referred to in investment treaties could come into question. 134 Ch. Schreuer, L. Malintoppi, A. Reinisch and A. Sinclair, supra note 27, p. 383.

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