CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ BETWEEN INTERNATIONAL INVESTMENT TRIBUNALS … into account that international law is historically a much less developed system of law than national laws, in particular as regards procedural rules. 64 There is certainly no secret master plan how to rebuild international investment arbitration, and international law in general, so that it satisfies all interests involved. However, would not it be a better solution for states to reconceptualise lis pendens under national law? It should be remembered what was said above, lis pendens has its roots in national law, and it is maybe there where the search for an improvement may start. It is the state as the central subject of international law that has a wide discretion in changing its internal laws. 65 If, for instance, states wish to exclude parallel proceedings of shareholders in international investment arbitration and their local company before national courts, why do not they alter the rules on lis pendens by relaxing the requirement of identity of parties in national law if there is an inseparable factual and economic link between the parties in national and international proceedings? Thus, once the court decides the case before the national court in favour of the state, and the arbitral tribunal will later render the award in favour of the investor, then the state may resist the recognition and enforcement of the award in its territory 66 on the basis of res judicata (provided that the above change as regards the identity of the parties is adopted). Moreover, if the state wins the dispute in national courts, the final judgment may be a strong – if not decisive - piece of evidence in pending international investment arbitration, which may in turn lead to the end of the arbitration. In another scenario, where an arbitration award favourable to the state is rendered, the latter may rely on the res judicata effect of the arbitration award in the pending court proceedings. In this respect, one should not forget that in states like the Czech Republic, 67 arbitral award has the same legal effects as judgement, 68 namely res judicata . It should be also recalled, as regards the ICSID arbitration awards, that article 54 (1) of the ICSID Convention stipulates that ‘[e]ach Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State .’ 69 Thus, reading the text of this provision in good faith it seems that the ICSID award is to be treated as a final judgment in the state, including the possibility to attack its finality to the extent allowed under national law. 70 No more, no less. 64 See above. 65 That national law-making may have important consequences for investment protection has been recently emphasised with regard to consent to arbitration. See MULLEN, Stephanie, WHITTSIT, Elisabet, ‘ICSID and Legislative Consent to Arbitrate: Questions of Applicable Law ‘ (2017) 32 ICSID Review 92-115. 66 In other states, the state will invoke state immunity, which is not possible before its own courts as this is not a decision-making of a organ of a foreign state (hence par in parem ‘logic’ does not apply here). 67 The jurisdiction of the present author. 68 § 28 (2) no 216/1994 Coll., Law on Arbitration and Enforcement of Arbitration Award. 69 Convention on the Dispute Settlement of Investment Disputes between States and Nationals of other States. Available at: http: Accessed 29 May 2017. Emphasis added by the author. The textual interpretation, which is the starting consideration under the general rule of interpretation under article 31 VCLT, suggests that the ICSID awards do not enjoy more favourable regime than final judgments in a particular state. See also BALDWIN, Edward, KANTOR, Mark and NOLAN, Michael, ‘Limits to Enforcement of ICSID Awards’ (2006) 23 Journal of International Arbitration 1-24. 70 The limit of this might be an idiosyncratic rule which has no counterpart in other legal orders. LIS PENDENS

527