Perspectiva de género en el campesinado de Traslasierra

As noted above, the problem of duplication in the damages claimed in treaty and contract claims is related but not coterminous with that of parallel proceedings in international investment law (let alone in general international law). Further, one of the two main concerns identified here, the risk of double recovery, is relevant when considering the consequences of parallel proceedings. However, preventing this risk does not, as such,

133 Of course, shareholders may have claims based on their rights qua shareholders (such as to collect dividends). But those claims are not indirect claims. See Chapter 4.

134 See Chapter 5.

135 For a detailed analysis of the damages claimed leading to a finding of inadmissibility see Orascom [498-518].

136 Hochtief (Jurisdiction) [4, 117, 125].

137 Hochtief (Liability) [187].

138 Ibid [188-194].

139 See Hochtief (Award) [40, 55].

necessarily mean preventing a party from bringing more than one claim for the same damage.¹⁴⁰ That said, legal devices to coordinate parallel or subsequent related proceedings are briefly considered, i.e., res judicata and lis pendens, and treaty provisions, such as fork in the road clauses and provisions on consolidation or waiver of related proceedings.¹⁴¹

(a) Res judicata and lis pendens

The res judicata principle is a general principle of law, as well as a principle of international law, according to which decisions of international tribunals ‘are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose’.¹⁴² This final and binding nature protects the defendant from double jeopardy and promotes judicial economy and legal security.¹⁴³ The litispendence doctrine (lis pendens or lis alibi pendens) prevents a party who is already involved in legal proceedings from starting new proceedings involving the same parties and the same dispute.¹⁴⁴ As to the requirements for the application of these principles,

there are four preconditions for the doctrine of res judicata to apply in international law, namely proceedings must: (i) have been conducted before courts or tribunals in the international legal order; (ii) involve the same relief; (iii) involve the same grounds; and (iv) be between the same parties.¹⁴⁵

140 See SPP (Jurisdiction I) [61]; Euram [230]. There may be valid reasons for a party to pursue multiple remedies. Shany (2003) 144; Hobér (2005) 242.

141 Shany describes the rules of lis alibi pendens, res judicata, and electa una via (or fork-in-the-road) as

‘jurisdictional competition regulating rules’. Shany (2003) 21-22. Detailed discussion of these mechanisms is beyond the scope of this thesis.

142 Application Genocide Convention I [115]. See also Ralston (1926) 48-51; Cheng (1953) 337;

Lauterpacht (1958) 325-326; McLachlan (2008) 217-218; Magnaye and Reinisch (2016) 265-266; Waste Management II (Preliminary Objection) [39-40]; Apotex II [7.11-7.12].

143 Dodge (2000) 382; Schreuer and Reinisch (2002) [201]; Shany (2003) 22.

144 Reichert (1992) 239; Shany (2003) 22; Reinisch (2004) 43; ILA Lis Pendens Report [1.2].

145 ILA Res Judicata Interim Report, 56. The more common reference is to a triple identity test requiring

‘an identity between the parties (personae), the object (petitum) and the legal ground (causa petendi)’.

Nicaragua v Colombia (2016) [55]. See also Interpretation of Judgments Nos. 7 and 8 (Diss Op Anzilotti), 23. But the conditions are often not described in exactly the same terms. See e.g. Schreuer and Reinisch (2002) [217]; Hobér (2014) 341, 360.

The same conditions are, mutatis mutandis, required for the application of litispendence.¹⁴⁶

In investment treaty practice, these conditions constitute significant hurdles to applying res judicata and lis pendens to address overlaps between treaty and contract claims.¹⁴⁷ The two principles are generally deemed not applicable in relations between national and international courts,¹⁴⁸ often with reference to the superiority of international tribunals and proceedings over their national counterparts.¹⁴⁹ Further, contract and treaty claims differ at least in the grounds invoked (i.e., contract as opposed to treaty causes of action) and often also as to the parties involved. A few tribunals¹⁵⁰ adopt a substantive approach to the requirements identified above, i.e., one concentrating on the ‘economic realities’ of the investors and claims ultimately involved and not on formal distinctions as to the persons or causes of action,¹⁵¹ but this approach has yet to garner widespread approval.¹⁵² Yet the admissibility concept is broad enough to allow investment tribunals to consider some of the same legal reasons behind res judicata and lis pendens when dealing with potential overlaps between treaty and contract claims. The reasons include legal certainty (when for example a final decision has previously been rendered in the contract claim) and avoiding substantively conflicting outcomes.¹⁵³ Thus, proposals on a substantive approach to res judicata and lis pendens complement the thesis’ main arguments.

146 Reinisch (2004) 43-44, 50-52, 55, 61; Gallagher (2006) 339; Rivkin (2005) 294; ILA Lis Pendens Report, para 3.2; Magnaye and Reinisch (2016) 275-276.

147 See Rivkin (2005) 294; Bentolila (2010) 128; Voss (2011) 289-290; Kaufmann-Kohler (2014) 8; Hobér (2014) 341, 360; Baumgartner (2016) 18.

148 Reichert (1992) 249; Dodge (2000) 367-370; Schreuer and Reinisch (2002) [218]; Brownlie (2003) 50;

Shany (2003) 242, 244, 254; Reinisch (2004) 51; Söderlund (2005) 315, 321; Rivkin (2005) 291; Voss (2011) 303; ILA Res Judicata Interim Report, 56; Magnaye and Reinisch (2016) 271, 286. The ILA did not include the same legal order requirement in its final recommendations because ‘a process of permeation and interaction between different legal orders is only beginning and may result in the legal community no longer viewing private law and public law as operating in separate legal orders’. ILA Res Judicata Final Report [40].

149 See Reichert (1992) 249-250; Crivellaro (2005) 90-93. But see Douglas (2009) 381.

150 See Grynberg and RSM (Award) [7.1.4-7.1.7]; Apotex II [7.40]; Charanne [408]; Ampal (Liability) [260]. But see ILA Res Judicata Final Report [49].

151 ILA Res Judicata Interim Report, 57; Schreuer and Reinisch (2002) [222-239, 251-257]; Reinisch (2004) 56, 77; Crivellaro (2005) 115; McLachlan (2008) 415.

152 The res judicata and lis pendens principles’ ‘mode of application to treaty-based arbitration proceedings remains an open question’. Magnaye and Reinisch (2016) 275.

153 McLachlan (2008) 413.

(b) Treaty provisions on coordination

IIAs sometimes specifically address problems of coordination of related claims. The relevant provisions include, first, fork in the road provisions, which require the investor to choose among the dispute settlement procedures available under the treaty, and make that choice binding and definitive.¹⁵⁴ Second, waiver provisions requiring investors to expressly waive any other actual or potential claim they may have against the same measure involved in the IIA claim.¹⁵⁵ For example, among the ‘Conditions to the Submission of Claim to Arbitration’, the Free Trade Agreement (‘FTA’) between the European Union (‘EU’) and Singapore requires the claimant to withdraw ‘any pending claim submitted to a domestic court or tribunal concerning the same treatment’ and declare ‘that it will not submit such claim before a final award has been rendered’

pursuant to the treaty.¹⁵⁶ Third, IIAs may provide for the consolidation of different proceedings, which entails ‘combining two or more proceedings into one proceeding’.¹⁵⁷ The effectiveness and scope of these devices have certain limits, however.

Consolidation requires the consent of all the parties to the different proceedings sought to be merged into one, or a treaty provision, in principle applicable to all the proceedings in question, providing for consolidation.¹⁵⁸ Consent of opposing and otherwise different parties may not be easy to obtain and IIAs generally do not contain provisions on consolidation, except in certain specific contexts such as NAFTA.¹⁵⁹ Further, importantly for present purposes, existing IIA consolidation provisions cannot

154 Thus, these provisions prevent an investor from bringing a new claim before one of the fora available under the treaty if it has previously submitted the dispute to another forum. See e.g. US-Czech and Slovak Federal Republic BIT, Art VI(3)(a); Chile-Venezuela BIT, Art 8(3); Ecuador-US BIT, Art VI.3(a). See also Olavo Baptista (2005) 137; Kreindler (2005) 167-168; Salles (2014) 245.

155 A well-known example is Article 1121 of NAFTA. See Lee (2001) 2669-2670 (provision seeks to prevent ‘claimants enjoying twice the benefits on their claims for damages’ and risks of ‘conflicting outcomes on the same issue’). See also Waste Management II (Preliminary Objection) [27]; Rivkin (2005) 285; McLachlan (2008) 398; Hobér (2014) 369.

156 EU-Singapore FTA, Art 9.17. See also CETA, Art 8.22(f).

157 Canfor (Consolidation) [77]. See also Kaufmann-Kohler (2014) 7.

158 Orrego Vicuña (2005) 214; McLachlan, Shore and Weiniger (2017) 148. See also Rivkin (2005) 289 and Hobér (2005) 253 (both discussing, apart from consolidation, joinder or intervention of third parties as means to avoid duplicative proceedings, which also require consent of the parties to the proceeding).

159 However, consolidation may become a more widely available and used mechanism to the extent the investment treaty regime evolves towards more centralized or ‘institutionalized’ frameworks (such as a permanent investment court) and in the context of states’ increasing awareness about the effects of parallel proceedings. See Orrego Vicuña (2005) 214; EU Concept Paper, 3 (‘CETA prohibits parallel proceedings’, the aim being to ‘avoid double compensation and divergent verdicts’).

be applied to aggregate international and local proceedings.¹⁶⁰ IIA provisions requiring waiver of local proceedings may be useful to the extent they apply to damages claims against the contested measure, regardless of the legal basis invoked and whether they are brought by the shareholder or the local company.¹⁶¹ However, because IIA claimants argue, consistent with prevailing views, that their claims are based on their own rights and on their own damages (rather than on the rights and damages of the local company), some of the existing waiver requirements in IIAs may not prevent overlapping proceedings in all cases.¹⁶²

Under fork in the road provisions, arbitral tribunals have dealt with arguments on the impact of national proceedings pursued by the company while the shareholder treaty claim was pending. As to such local proceedings, since there is often no identity of the parties and causes of action (i.e., contract as opposed to treaty claims), the shareholder is considered as not having elected another forum and thus entitled to continue its IIA claim.¹⁶³ However, the H&H tribunal observed that under the fork in the road clause in Article VII 3(a) of the Egypt-US BIT, the triple identity test was ‘not the relevant test as it would defeat the purpose’ of the provision, which was ‘to ensure that the same dispute is not litigated before different fora’.¹⁶⁴ It concluded that the bases of the contract and treaty claims at issue coincided because they had the same factual basis.¹⁶⁵ Thus, the provision was applicable regardless of differences in the causes of action and persons involved in the different claims.¹⁶⁶ Here again, the effect of fork in the road, waiver, and similar provisions depends on their actual existence in the treaty and their terms and/or on the consent of the disputing parties. Still, coordination mechanisms in IIAs, not least a ‘substantive’ reading of them (i.e., one focusing on the measures involved in the parallel

160 Even the consolidation of different IIA proceedings, for example when subject to different arbitral rules, may present considerable legal complexities. See Kaufmann-Kohler (2014) 7-8.

161 Wehland (2016) 582; Baumgartner (2016) 19.

162 See Reinisch (2004) 75-76 (discussing problems of coordination even in the case of the creation of a single investment treaty framework).

163 See Enron (Jurisdiction I) [97-98]; Crivellaro (2005) 102; Hobér (2014) 364, 366.

164 H&H [367].

165 Ibid [378-381].

166 Ibid [360-382]. Arguably, the decision was based on the language of the specific fork in the road clause, which required that ‘the dispute at hand not be submitted to other dispute resolution procedures’. Ibid [367].

Yet commentators have suggested similar approaches vis-à-vis fork in the road provisions generally. See Rivkin (2005) 288; McLachlan (2008) 396-397; Douglas (2009) 155-156. But see Schreuer (2004) 248.

claims), are consistent with the use of admissibility advanced in this thesis.¹⁶⁷ And so are treaty provisions expressly dealing with the admissibility concerns discussed here.¹⁶⁸