The rapid increase in cross-border transactions in recent decades has naturally given rise to a spike in various types of international disputes involving numerous subjects and parties of different nationalities all over the world. Consequently, when facing such international disputes, the concerned parties are no longer limited to seeking to resolve them via a traditional litigation at a domestic court. Rather, now disputing parties usually have the luxury of choosing one of several options at their disposal.2 The rise in prominence of international arbitration, both commercial and investment, as well as international organisations such as the World Trade Organization (WTO) have certainly contributed to this development. Complications arise, however, where the parties have a disagreement over where to take the dispute to begin with.
For instance, in an investment arbitration case under a bilateral investment treaty (BIT), one party might opt to go ahead and initiate a litigation in front of a national court even though an arbitration case is already in progress. This would be a classic example of a parallel proceeding in international arbitration. In this example, it is entirely possible that the national court hearing the second proceeding might decline to exercise jurisdiction based on the specific wording of the arbitration clause between the parties. That may not always happen, however, and if so the end result would be that the parties would suddenly be facing parallel proceedings. To further complicate matters, a domestic court is not the only forum with which an arbitral tribunal might find overlapping jurisdiction. Instead, a tribunal could easily find overlapping jurisdiction with another arbitral tribunal or even international courts.
While it always has been and remains quite common to see issues arising from overlapping jurisdiction in domestic settings, in international law this is an emerging and new issue.3 Nevertheless, it seems obvious that its importance will only increase and indeed, parallel proceedings are becoming more and more common in practice.4 Parallel proceedings are naturally problematic as well as burdensome to the concerned parties for a number of reasons. Even besides the fact that they require additional costs and time, the existence of conflicting awards could cause serious issues at the enforcement stage and encourage forum-shopping. For that reason, as we will see, critics and arbitrators have crafted a number of sophisticated – albeit insufficient – mechanisms to deal with them.
In the following, we will delve into some of the basics surrounding parallel proceedings in international arbitration such as the concept, some of the problems they pose and solutions that arbitral tribunals have adopted to address such problems.
II WHAT ARE PARALLEL PROCEEDINGS?
i Definition and types of parallel proceedings
Before delving any further, it would first be necessary to define the term 'parallel proceedings'. There is no general definition of parallel proceedings,5 but as a guideline, the International Law Association defines the term 'concurrent proceedings' as 'proceedings pending before a domestic court or another arbitral tribunal, in which the parties and one or more of the issues are the same or substantially the same as the ones before the arbitral tribunal in the Current Arbitration.'6 This is a noticeably broad definition7 and to somewhat narrow it down, the proceedings must 'address the same claims, demand or cause of action between the same parties.'8 Needless to say, two proceedings are not deemed parallel or concurrent just because the involved parties are identical or they originate from the same transaction. In contrast, the proceedings must be essentially identical but simply filed in front of two separate courts, tribunals or some other institutions with adjudicative authority.
Parallel proceedings are most common between an arbitral tribunal and a domestic court, as one might expect.9 However, they can easily take other forms as well. For example, an investor might file a claim under a relevant BIT or in front of a domestic court while simultaneously encouraging the state of its nationality to file a WTO claim against the respondent state.10 While this example does not technically fit into the definition stated above since the involved parties are not identical, there is no denying that international court proceedings such as WTO proceedings can also be pursued in parallel with arbitral proceedings.11 In this context, parallel proceedings can arise between courts and arbitral tribunals, regardless of whether the courts are international or domestic.12
As the number of channels that parties may take in resolving international disputes has risen, it is only logical that potential areas where different forums might clash over their respective jurisdiction have increased as well. For the purposes of this paper, however, we will briefly touch upon and discuss issues arising from the following two types of parallel proceedings: (1) those between a domestic court and an arbitral tribunal; and (2) those between two different arbitral tribunals.
ii What are some of the causes of parallel proceedings?
One of the causes of parallel proceedings in international arbitration is the doctrine of competence-competence, as it empowers the arbitral tribunal with the authority to decide its own jurisdiction.13 In that sense, while an arbitral tribunal's decision on jurisdiction is not final and may be reviewed by domestic courts, the arbitral tribunal nonetheless has priority over other adjudicative bodies on whether or not it has the requisite jurisdiction over a claim.14 This in particular creates room for conflict with local courts, as the scope of the competence-competence rule and the involvement of domestic courts can vary depending on the jurisdiction.15 Under the competence-competence doctrine, both domestic courts and arbitral tribunals could independently decide to exercise jurisdiction over the same case without being affected by one another in any way.16 This problem is further exacerbated by the fact that arbitrators are more likely to find jurisdiction than local court judges since they receive monetary compensation for hearing a dispute.17 Given that tendency, it seems perfectly reasonable that whereas a judge might decline to exercise jurisdiction over a certain case owing to potentially overlapping jurisdictions, an arbitrator might very likely find otherwise.
Specifically for investment arbitrations, another possible cause of parallel proceedings is the inclusion of an umbrella clause in the relevant BIT. Umbrella clauses can be phrased in a number of ways in a BIT,18 but regardless of the specific wording, they attempt to extend the scope of the BIT beyond disputes under the BIT itself. These unique provisions are called umbrella clauses because 'they put contractual commitments under the BIT's protective umbrella'.19 Thus, by utilising an umbrella clause, an investor might initiate an investment arbitration while simultaneously carrying out a contractual claim in a different forum. To put it differently, where applicable, an investor could bring an investment treaty claim against the state as well as a breach of contract claim in front of a domestic court at the same time. Consequently, there would be two proceedings involving the same parties and the same set of facts pending at two different forums. Umbrella clauses are expectedly controversial and the source of much confusion and uncertainty. For their part, ICSID tribunals have rendered inconsistent rulings on the line dividing contract and treaty claims.20
Finally, parallel proceedings can be intentionally initiated by the actual parties to the dispute themselves.21 For example, a party might commence a parallel proceeding as a tactical decision to delay the proceedings, or a party might do so as a precautionary measure.22 This is because, depending on the applicable national legislations, 'there is room for playing with parallel proceedings that can really make a difference on the outcome of the case.'23 In the worst case, parties can take advantage of parallel proceedings to take the fight to a forum more favourable to it or even just to cause annoyance and worsen the burden on the opposing party.24 Whether such behaviour is ethical is an entirely different issue, but at the very least most would agree that it cannot be encouraged.
III ISSUES WITH PARALLEL PROCEEDINGS
i General issues
Parallel proceedings are the source of a number of complications in international arbitration. For instance, they may cause delays, increase costs, potentially be an abuse of process, encourage forum shopping or lead to conflicting results.25 Among these, the biggest concern might very well be the last one.26 On first thought, it is natural that parties would prefer to avoid parallel proceedings since they would be forced to spend additional time and effort over the same dispute and set of facts. Having to litigate the same cause of action twice would undermine some of the notable advantages of international arbitration, such as the speed of the proceedings and relatively lower expenses, after all. Parallel proceedings also run the risk of being characterised as an abuse of process, depending on the facts and circumstances of the particular dispute. Interestingly, another potential issue is that an ongoing domestic proceeding, as court proceedings are generally open and public, could result in the loss of confidentiality, thereby stripping the arbitration of another one of its principal advantages.27
These particular problems are complications that arise from the existence of a parallel proceeding in a different forum. This means that they are unnecessary and should be avoided if possible. As we will see below, however, these issues are at most a procedural inconvenience compared with the grave implications and potential impact of forum shopping and conflicting results.
ii Conflicting results and forum shopping
Conflicting results and forum shopping are undoubtedly two of the most significant drawbacks to parallel proceedings that strike at the heart of both commercial and investment international arbitrations. Starting with the former, for one thing the mere existence of a conflicting arbitration award can raise questions about its enforceability under the New York Convention.28 This is especially the case since domestic courts and arbitral tribunals may very well apply different substantive laws.29 Even worse, where there are two conflicting decisions, the enforcement of one might result in a violation of the other,30 which would put the party seeking enforcement in a difficult position. Most importantly, however, inconsistent rulings might leave the dispute unresolved while simultaneously threatening the stability and legitimacy of the system of the tribunal itself.31
One notable set of proceedings in which this became an issue was the conflicting results between Lauder v. Czech Republic and CME v. Czech Republic.32 A total of four principal proceedings ensued from a series of events, including the above-mentioned two investment arbitrations under the US–Czech Republic BIT and the Netherlands–Czech Republic BIT, respectively. The tribunals in these two investment arbitration cases rendered conflicting decisions,33 and needless to say, the reaction to these conflicting awards was largely negative.34 For example, some have even gone as far as labelling the outcome of these parallel proceedings a 'debacle'.35
Furthermore, the fact that different tribunals or courts could render conflicting results creates an incentive for parties to entertain the idea of forum shopping, which is a new phenomenon among international tribunals.36 Even though there may be no clear answer as to whether forum shopping in international arbitration is clearly negative,37 there can be little doubt that greater stability and predictability would be beneficial for the investment arbitration system in general. Forum shopping hurts the investment arbitration system in that respect since it is based on the premise that different forums could very well lead to different outcomes regarding the same dispute. There are a number of other reasons why parties might use parallel proceedings for forum shopping among tribunals or courts, much like how they might do so under domestic law. Among other things, they might do so to take advantage of favourable procedural issues, such as interim measures or different discovery rules, or because of practical considerations such as geographical convenience.38 In essence, parties seek 'home advantage' by engaging in forum shopping.39 Ultimately, their intent would be to take their claim to the forum that would be most favourable for their interests.40
iii Abuse of process and parallel proceedings
As Professor Gaillard once recognised, filing multiple arbitral proceedings can be characterised as a potential type of abuse of process.41 Indeed, respondent states in investment arbitration proceedings often raise the abuse of process challenge (or a similar good faith argument) when faced with the threat of having to defend the same interest against de facto same investors in more than one proceeding. This resistance by respondent states to the multiplication of arbitral proceedings inevitably leads to fierce controversy in the jurisdictional phase of investment arbitration proceedings. On this issue, an ICSID tribunal recently rendered a noteworthy award. In that case, the tribunal noted that 'the four parallel arbitration[s] with, essentially, the same factual matrix, the same witnesses and many identical claims' had been pursued.42 In spite of the ostensible multiple proceedings arising out of virtually 'the same factual matrix', however, the tribunal held that 'none of the four arbitrations at issue here is, per se, an abuse.'43 The tribunal nonetheless warned against double recovery of the same sum by a duplicative (overlapping) claimant.44 Furthermore, the tribunal noted that, in situations where claimants have pursued multiple proceedings because of their lack of confidence in the jurisdiction of the tribunals, it would be in the best interest of the claimants to withdraw the duplicative claims once a jurisdiction is confirmed so as to avoid the finding of an abuse of process.45 While this award did not squarely sever the correlation between parallel proceedings and abuse of process, it did make clear that the pursuit of multiple proceedings in itself would not automatically be deemed abusive, as long as the claimant has good reasons to pursue them on the basis of its right of recourse to treaty protection or arbitration clauses.
Given such convoluted issues and potentially negative implications of parallel proceedings, it seems obvious that judges and arbitrators have to be well versed in possible means of dealing with them. Despite the obvious need to develop mechanisms designed to prevent parallel proceedings, as we will see in the subsequent section, they have rather limited measures in terms of effectiveness at their disposal.
Now that we have identified the problems and issues caused by parallel proceedings, logically the next step will be discussing ways for arbitral tribunals to rectify them. The American Law Institute and the European Court of Justice have each attempted to address parallel proceedings,46 but it is apparent that there is no clear-cut answer available at this point. Still, arbitral tribunals can and have sought to resolve issues arising from parallel proceedings by adopting certain legal principles from domestic law and local courts. In the following, we will discuss some of the possible means through which arbitral tribunals could limit or prevent parallel proceedings from taking place or proceeding any further.
IV POSSIBLE SOLUTIONS
i Res judicata and lis pendens
First of all, arbitral tribunals can utilise the principles of res judicata and lis pendens,47 both of which are of course borrowed concepts from domestic law principles. Needless to say, res judicata and lis pendens are hardly the only means or legal principles applicable for addressing the matter of parallel proceedings.48 For example, as a general principle of international law, courts and tribunals may decline jurisdiction as a matter of comity.49 Nevertheless, res judicata and lis pendens are effective as 'preclusion doctrines' in that they 'bar either the jurisdiction of a court or the plaintiff's right to have her substantive claims examined'.50 In other words, where applicable, res judicata and lis pendens would require the court or tribunal in the second proceeding to decline jurisdiction.
Starting first with the principle of res judicata, it is applicable where another court or tribunal has already rendered a decision on the dispute, whereas lis pendens is applicable if the dispute is still pending.51 Widely known as 'claim-preclusion', res judicata blocks a party from seeking to relitigate a claim that has already been resolved in a final and conclusive manner. While not perfectly interchangeable with its domestic law counterpart, res judicata is a principle of international commercial arbitration.52 In the context of international arbitration, res judicata can be applied in a similar manner as in domestic law.
However, the utilisation of res judicata in parallel proceedings is bound to be limited, as it only applies to proceedings where the parties, the object or subject matter, and the cause of action are identical.53 More importantly, res judicata necessarily presupposes a final and conclusive judgment. Thus it would apply to subsequent proceedings but not to the situation where two or more proceedings are currently in progress. Even if there is a final judgment, it must be binding on the subsequent proceeding. Where a final judgment is deemed to be non-binding, tribunals have merely 'acknowledged the “persuasiveness” of non-binding awards'.54 To make matters even more challenging, res judicata is only applicable to two proceedings in the same legal system. As such, it follows that res judicata cannot be applied to proceedings between different international tribunals.55 Logically, it cannot be applied to an international tribunal and a domestic court either for the same reason.
As for lis pendens, which is the method adopted by signatories to the Brussels I Regulation,56 in domestic law this particular doctrine bars a court from hearing a case that is 'already pending before another court in the same legal system'.57 In an investment arbitration setting, however, there is no indication that lis pendens must be limited to proceedings within the same legal system as well. Instead, it could be applied so that 'the subject matter of the dispute may not be negotiated simultaneously before more than one tribunal.'58 Unlike res judicata, lis pendens is built to deal with proceedings that are occurring concurrently.59 Nevertheless, much like the case with res judicata, there is an ongoing debate over whether lis pendens is a principle of international law.60
In addition, lis pendens is only applicable under extremely limited circumstances.61 Since it requires parallel proceedings to be taking place in the same legal system, it would not be applicable to overlapping jurisdictions between a domestic court and an arbitral tribunal.
Given the uncertainty over the role that res judicata and lis pendens might have in the domain of international law, it becomes clear that they are not fit or sufficient for dealing with the problems accompanying parallel provisions on their own. At most they could be expected to play a supplementary role where applicable.
ii Consolidation of arbitrations/claims
Another possible solution to parallel proceedings is consolidating the arbitrations/claims, as a domestic court might do. By doing so, parallel proceedings can be consolidated into a single proceeding. In fact, consolidation of claims have been used in commercial arbitrations to deal with parallel proceedings.62 The International Chamber of Commerce (ICC), for example, prescribes in Article 10 of its Rules of Arbitration that the International Court of Arbitration of the ICC may consolidate two or more arbitrations in instances such as 'where the claims in the arbitrations are made under more than one arbitration agreement, the arbitrations are between the same parties, the disputes in the arbitrations arise in connection with the same legal relationship, and the Court finds the arbitration agreements to be compatible.'63 For parallel proceedings, the prerequisite that the parties must be the same would be immediately satisfied, but one problem with this approach, at least in the case of the ICC, is that the concerned parallel proceedings must be taking place in the same legal system,64 which seems to be a recurring issue for mechanisms to deal with parallel proceedings. Thus, generally there are no means for a domestic court to consolidate claims made in an arbitral proceeding, and vice versa.
Moreover, whereas domestic courts generally have broad jurisdiction, arbitral tribunals can only hear a claim upon agreement by the parties. As obvious as it may seem, a court must have the jurisdiction to do so in the first place to consolidate two or more proceedings into one.65 That being the case, since the boundaries of the jurisdiction of an arbitral tribunal are entirely set by the scope of the consent of the involved parties, the power of the tribunal to consolidate claims is naturally far more limited than that of a domestic court. It follows that consolidating claims between two or more parallel proceedings would be a viable option for arbitral tribunals only in limited circumstances.
iii Waiver provisions
Perhaps a more effective solution would be preventing parallel proceedings from arising in the first place. There are two simple ways of preventing parallel proceedings from arising at all, one of which is via a waiver provision. In fact, the simplest way of dealing with parallel proceedings might be including a waiver provision as part of a BIT. In order to comply with a waiver provision, the investor would have to submit a written waiver foregoing any other dispute settlement procedure prior to filing an arbitration. That way, the investor is precluded from seeking an alternative dispute settlement procedure for the same claim under the BIT. Indeed, investment treaties can explicitly include provisions requiring claimants to refrain from initiating parallel proceedings, and many recent investment treaties in fact do include such provisions.66 For example, Article 8(6) of the Mexico–Korea BIT provides as follows:
A disputing investor may submit a claim to arbitration only if he consents to arbitration in accordance with the procedures set out in the Agreement and waives his right to initiate before any administrative tribunal or court under the law of the Contracting Party, or other dispute settlement procedures, and any proceedings with respect to the measure of the disputing Contracting Party that is alleged to be a breach of this Agreement.
A waiver can be explicit or implicit, and by submitting a written waiver the investor relinquishes its right, claim, or privilege.67 When there is a waiver clause, by choosing to arbitrate, the investor foregoes its right to take the dispute to another forum. It seeks to directly prevent the negative effects of parallel proceedings such as the respondent state being forced to litigate multiple proceedings as well as the risk of double recovery and inconsistent findings of fact and law.68 Any attempt to initiate a parallel proceeding in spite of a valid waiver provision would by definition violate it and lead to the relevant arbitral tribunal declining jurisdiction.
However, there are shortcomings with this approach as well. Most notably, in order to be effective, the waiver provision must be worded carefully and precisely. Thus the drafters of a BIT must exercise caution to increase the likelihood that an arbitral tribunal would find a waiver provision valid. This is more difficult than it may seem because a waiver provision has a formal as well as a material component.69 The formal requirement is that the investor must submit a written waiver that complies with the terms of the treaty.70 As for the material component, however, the investor must refrain from 'initiating or continuing proceedings in a domestic court'.71 Even if the investor satisfies the formal component, a tribunal will decline to exercise jurisdiction if the second prong is not met. This can be seen in the first proceeding of Waste Management Inc v. United Mexican States and the partial award on jurisdiction in Renco Group v. Peru.72
Starting with Waste Management, the claimant submitted a written waiver as required by Article 1121, but simultaneously pursued two domestic proceedings against a Mexican state bank along with another arbitration against a municipal government.73 Based on these facts, the arbitral tribunal held that as the claimant was not planning to terminate the domestic proceedings, its actions contradicted the intent behind Article 1121.74 For that reason, the arbitral tribunal could not exercise jurisdiction. This was even though the claimant's waiver had satisfied the formal requirement.75
Turning to Renco Group v. Peru, which was an ICSID case under the Peru–United States Trade Promotion Agreement (the Treaty), the tribunal had to determine whether it had jurisdiction in light of the claimant's notice of arbitration that was accompanied by a waiver. Article 10.18(2)(b) of the Treaty required an investor to first submit a written waiver prior to initiating a claim under the Treaty before an administrative tribunal, court or some other dispute settlement body. However, in its waiver the claimant had stated that it reserved the right to bring claims in another forum if the tribunal declined to hear it on jurisdictional and admissibility ground.76 In the partial award decision on jurisdiction, a split tribunal held that the reservation of rights was in breach of Article 10.18(2)(b) of the Treaty.77
As a second line of defence, the claimant in this case argued that it would still be able to 'cure' the defective waiver. The tribunal disagreed, however, by holding that '[c]ompliance with both elements is a precondition to Peru's consent to arbitrate and to the existence of a valid arbitration agreement'.78 Since there was no arbitration agreement in the first place, the tribunal could not exercise jurisdiction to hear the claim.
Therefore, it is evident that a waiver provision does not invariably prevent parallel proceedings from arising. As discussed above, there are several hurdles one party must overcome in order to prevent parallel proceedings through the use of a waiver provision.
iv Fork-in-the-road clauses
A similar but perhaps more effective recourse for dealing with parallel proceedings is by inserting a fork-in-the-road clause in BITs or commercial contracts. Generally, a fork-in-the-road clause requires the investor to 'choose between the litigation of its claims in the host State's domestic courts or international arbitration and that, once made, the choice is final'.79 That is, once an investor has made its choice, it is irrevocable.80 The choice does not necessarily only have to be between two options, as a fork-in-the-road clause may offer the investor several different options instead.81 Although they may seem eerily similar at first thought, a fork-in-the-road clause can be distinguished from a waiver provision in that the latter requires the investor to refrain from turning to a domestic court prior to filing an arbitration by submitting a written waiver, whereas the former allows the investor to choose between a domestic proceeding and an investment arbitration.82
To reiterate, the difference is that a waiver requirement in a BIT, on one hand, forces the investor to choose arbitration as the only dispute settlement procedure. A fork-in-the-road clause, on the other hand, allows the investor to choose arbitration among two or more options. In that sense, it offers greater freedom and flexibility to the investor. Some have also suggested that a waiver provision, unlike a fork-in-the-road clause, encourages the investor to consider the option of utilising domestic remedies before filing an arbitration claim.83 Ideally, however, the end result would be identical in that either method would lead to the preclusion of parallel proceedings. Moreover, regarding the investor's choice between a domestic court or international arbitration, the tribunal in OEPC v. Republic of Ecuador,84 which was an investment arbitration under the US–Ecuador BIT, has held that the choice must have been free and not under any duress.85 Another caveat to this approach is that the tribunal must still determine whether the claimant's appearance in front of a domestic court suffices as its choice under the fork-in-the-road clause.86
Overall, a tribunal relies on the following three-prong test to determine whether an investor has exercised its right under the fork-in-the-road clause: (1) whether the domestic proceeding was instituted before the arbitration was chosen, (2) whether the dispute between the parties is identical in both proceedings and (3) whether the parties are also identical.87 Despite this general framework, ultimately a tribunal evaluates each fork-in-the-road clause on a case-by-case basis.88 As a result, there is no consistent jurisprudence on how to interpret a fork-in-the-road clause.
Therefore, much like the situation with waiver provisions, the mere inclusion of a fork-in-the-road clause does not automatically give effect to it. Rather, the parties must exercise in drafting it and also in their attempts to utilise it.
As a whole, the analysis above proves that each of the techniques currently available has its own drawbacks and, if invoked alone, is not sufficient to address the problems caused by parallel proceedings. Instead, arbitral tribunals must have regard to some or a combination of these options where applicable. What is more, with regard to waiver or fork-in-the-road clauses in BITs, parties should elaborate on drafting treaty language and structure to preclude parallel proceedings, which is expected to result in predictability for parties and clarity for arbitral tribunals.
Cross-border transactions and investments have become an essential and inevitable component of today's world economy. For example, the number of arbitration cases administered by the world's major commercial arbitration institutions continues to increase each year.89 At the same time, investment arbitrations are becoming more and more common as well.90 Invariably, this means that the potential room for conflict resulting from parallel proceedings in the realm of international arbitration is growing as well. Therefore, any actor in the world of international arbitration – both commercial and investment – must keep an eye out on the issue of parallel proceedings. While there are a number ways to alleviate some of the problems arising from parallel proceedings, as discussed above, there are still inherent limitations and glaring weaknesses with each of those methods. Furthermore, despite the danger they pose, discussions regarding parallel proceedings in international arbitration are somewhat scarce and inadequate.
Ultimately, given the magnitude of the problems they pose and the lack of clear solutions or in-depth discussions, there can be little doubt that the issue of parallel proceedings warrant greater attention by the international arbitration community in the future. Left alone, parallel proceedings can eventually lead to 'fragmentation and unpredictability'.91 After all, by increasing the burden on the parties and frustrating their attempts to enforce arbitral awards, parallel proceedings are bound to have a negative impact on the role of international arbitration as a dispute settlement mechanism. While our recommendation is that careful drafting of waivers and fork-in-the-road clauses are relatively superior to the other solutions, in order to appropriately remedy such problems caused by parallel proceedings, a consistent jurisprudence will be necessary.92 To achieve this objective, as a start arbitral tribunals will have to accept the gravity of the issues originating from parallel proceedings.
1 Sae Youn Kim and Tae Joon Ahn are partners at Yulchon LLC.
2 David W Rivkin, 'The Impact of Parallel and Successive Proceedings on the Enforcement of Arbitral Awards' in Julian D M Lew and Bernardo M Cremades Roman (eds), Parallel State and Arbitral Procedures in International Arbitration (International Chamber of Commerce 2005) 269 ('supranational institutions, treaty-based tribunals, arbitral institutions and commissions, and ad hoc tribunals').
3 Joost Pauwelyn and Luiz Eduardo Salles, 'Forum Shopping Before International Tribunals: (Real) Concerns, (Im)Possible Solutions' (2009) 42 Cornell Int'l L. J. 77, 79.
4 Rivkin (n 2) 269.
5 Nadia Erk-Kubat, Jurisdictional Disputes in Parallel Proceedings: A Comparative European Perspective on Parallel Proceedings Before National Courts and Arbitral Tribunals (University of St Gallen 2014) 25.
6 'ILA Final Report on Lis Pendens and Arbitration' (2009) 25 Arb. Int'l 83.
7 Erk-Kubat (n 5) 25.
8 Katia Yannaca-Small, 'Parallel Proceedings' in Peter Muchlinski and others (eds.), The Oxford Handbook of International Investment Law (Oxford University Press 2008) 1012.
9 Denice Forsten, 'Parallel Proceedings and the Doctrine of Lis Pendens in International Commercial Arbitration' (Master's thesis, Uppsala University 2015) 29.
10 Roger P Alford, 'The Convergence of International Trade and Investment Arbitration' (2014) 53 Santa Clara L. Rev. 35, 44.
11 ibid., 44–50.
12 Francisco Orrego-Vicuna, 'Lis Pendens Arbitralis' in Julian D. M. Lew & Bernardo M. Cremades Roman (eds), Parallel State and Arbitral Procedures in International Arbitration (International Chamber of Commerce 2005) 207.
13 Forsten (n 9) 36.
14 Simon Greenberg, Christopher Kee, and J. Romesh Weeramantry, International Commercial Arbitration (Cambridge University Press 2011) 217.
15 ibid., 218–230.
16 Erk-Kubat (n 5) 2 ('competence-competence may, by authorising the arbitral tribunal to decide on its own jurisdiction, lead to jurisdictional conflicts of competence where national courts and arbitral tribunals both declare themselves competent to hear a case').
17 William W Park, 'Bridging the Gap in Forum Selection: Harmonizing Arbitration and Court Selection (1999) 8 Transnat'l L. & Contemp. Probs. 19, 50.
18 Yannaca-Small (n 8) 1032.
19 Christoph Schreuer, 'Travelling the BIT Route: Of Waiting Periods, Umbrella Clauses and Forks in the Road' (2004) 5 J. of World Investment & Trade 231, 250.
20 Yuval Shany, 'Contract Claims vs. Treaty Claims: Mapping Conflicts between ICSID Decisions on Multisourced Investment Claims' (2005) 99 Am. J. Int'l. L. 835.
21 Erk-Kubat (n 5) 11–13.
22 ibid., 12.
23 Emmanuel Gaillard and Philippe Pinsolle, 'Advocacy in Practice: The Use of Parallel Proceedings' in R. Doak Bishop and others (eds), The Art of Advocacy in International Arbitration (Juris Net 2010) 174.
24 Louise Ellen Teitz, 'Both Sides of the Coin: A Decade of Parallel Proceedings and Enforcement of Foreign Judgments in Transnational Litigation' (2004) 19 Roger Williams U. L. Rev. 1, 10.
25 Rivkin (n 2) 271.
26 Pauwelyn and Salles (n 3) 83.
27 Forsten (n 9) 37–38.
28 Rivkin (n 2) 271.
29 Forsten (n 9) 38.
30 ibid., 40.
31 Pauwelyn and Salles (n 3) 83.
32 CME v. The Czech Republic, UNCITRAL Case, Final Award, 14 March 2003; Ronald S. Lauder v. The Czech Republic, UNCITRAL Case, Final Award, 3 September 2001.
33 For additional details on these cases, see Rivkin (n 2).
34 August Reinisch, 'International Courts and Tribunals, Multiple Jurisdiction', Max Planck Encyclopedia of Public International Law (OUP Online, 2008) <http://deicl.univie.ac.at/fileadmin/user_upload/i_deicl/VR/VR_Personal/Reinisch/Publikationen/multiple_jurisdiction_epil.pdf> accessed 17 November 2017.
35 Cameron A. Miles, Provisional Measures before International Courts and Tribunals (Cambridge University Press 2017) 383.
36 Pauwelyn and Salles (n 3) 78.
37 Richard H. Kreindler, 'Parallel Proceedings: A Practitioner's Perspective' in Michael Waibel and others (eds), The Backlash Against Investment Arbitration: Perceptions and Reality (Kluwer Law International 2010) 147.
38 Erk-Kubat (n 5) 13-14.
39 Kreindler (n 37) 138.
40 David Gaukrodger and Kathryn Gordon, 'Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community' (OECD Working Papers on International Investment, March 2012) <http://www.oecd.org/daf/inv/investment-policy/WP-2012_3.pdf> accessed 17 February 2017, 51.
41 Emmanuel Gaillard, 'Abuse of Process in International Arbitration' (2017) 32(1) ICSID Review 1, 6.
42 Ampal-American Israel Corporation and others v. Arab Republic of Egypt, ICSID Case No. ARB/12/11, Decision on Jurisdiction, 1 February 2016, para. 328.
43 ibid., para. 329.
44 ibid., para. 330.
45 ibid., 95.
46 Teitz (n 24) 4.
47 Rivkin (n 2) 292–295.
48 Forsten (n 9) 43 ('[o]ther measures include, inter alia, anti-suit injunctions, consolidation of proceedings, and the application of the doctrine of forum non conveniens').
49 Rivkin (n 2) 291.
50 Pauwelyn and Salles (n 3) 86.
52 Mariel Dimsey, The Resolution of International Investment Disputes: Challenges and Solutions (Eleven International Publishing 2008) 88.
53 ibid., 103.
54 ibid., 90.
55 Pauwelyn and Salles (n 3) 104.
56 Brussels I Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters  OJ L 012; in such countries, jurisdiction rests with the court in the first jurisdiction and the court in the second jurisdiction stays pending proceedings; Teitz (n 24) 8.
57 Yannaca-Small (n 8) 1022.
58 Dimsey (n 52) 87.
59 Pauwelyn and Salles (n 2) 106.
61 ibid., 110.
62 Catherine Yannaca-Small, 'Chapter 8: Consolidation of Claims: A Promising Avenue for Investment Arbitration?' in International Investment Perspectives 2006 (OECD Publishing 2006) 226.
63 International Chamber of Commerce, Rules of Arbitration, Article 10(c); The Korean Commercial Arbitration Board also has a similar provision, Korean Commercial Arbitration Board, International Arbitration Rules, Article 23.
64 Article 10 specifies that the arbitrations must be pending under the ICC Rules of Arbitration, International Chamber of Commerce, Rules of Arbitration Article 10. As only the International Court of Arbitration may administer arbitrations under the ICC Rules of Arbitration as per Article 1, this means that the International Court of Arbitration can consolidate only ICC arbitrations, International Chamber of Commerce, Rules of Arbitration, Article 1.
65 Pauwelyn and Salles (n 3) 87 ('[b]oth consolidation and joinder presume that the court deciding the case has jurisdiction to do so in respect to all aspects and parties to the dispute').
66 Diane A. Desierto, 'Host State Controls over the Offer to Arbitrate: Waivers Against Parallel Actions in Investor-State Arbitration' (Kluwer Arbitration Blog, 10 August 2016) <http://kluwerarbitrationblog.com/2016/08/10/host-state-controls-over-the-offer-to-arbitrate-waivers-against-parallel-actions-in-investor-state-arbitration> accessed 17 February 2017.
67 Luiz Olavo Baptista, 'Chapter 5. Parallel Arbitrations – Waivers and Estoppel' in Julian D. M. Lew and Bernardo M. Cremades Roman (eds), Parallel State and Arbitral Procedures in International Arbitration (International Chamber of Commerce 2005) 130.
68 The Renco Group Inc v. The Republic of Peru, ICSID Case No. UNCT/13/1, Partial Award on Jurisdiction, 15 July 2016, para. 84.
69 ibid., para. 73.
70 ibid., para. 60.
71 ibid., para. 142.
72 ICSID Case No. ARB(AF)/98/2, Arbitral Award, 2 June 2000, 236-238; Renco (n 68).
73 William S. Dodge, 'International Decision: Waste Management, Inc. v. Mexico' (2001) 95 Am. J. Int'l. L. 186.
74 Waste Management (n 66) 236–-238; Renco (n 68).
75 Dodge (n 73) 63.
76 Renco (n 68) para. 58.
77 ibid., para. 119.
78 ibid., para. 135.
79 Schreuer (n 19) 239.
80 John Billiet, International Investment Arbitration: A Practical Handbook (Maklu-Publishers 2016) 187–188.
81 Kreindler (n 37) 148.
82 Rivkin (n 2) 286.
83 Christopher F Dugan, Don Wallace Jr, Noah D Rubins and Borzu Sabahi, Investor State Arbitration (Oxford University Press 2008) 370–371.
84 Occidental Exploration and Production Company v. The Republic of Ecuador, LCIA Case No. UN3467, 1 July 2004.
85 Rivkin (n 2) 289.
86 Schreuer (n 19) 241.
87 ibid., 248.
88 Rivkin (n 2) 288.
89 Markus Altenkirch and Nicolas Gremminger, 'Parties' Preference in International Arbitration: The Latest Statistics of the Leading Arbitral Institutions' (GlobalArbitrationNews, 5 August 2015) <https://globalarbitrationnews.com/parties-preferences-in-international-arbitration-the-latest-statistics-of-the-leading-arbitral-institutions-20150805> accessed 16 February 2017.
90 'Record Number of Investor-State Arbitrations Filed in 2015' (UNCTAD Division on Investment and Enterprise, 2 February 2016) <http://investmentpolicyhub.unctad.org/News/Hub/Home/458> accessed 14 February 2017.
91 Erk-Kubat (n 5) 1.
92 Teitz (n 24) 70.