Multi-Party Claims In International Investment Arbitration As Natural Extension Of International Investment Arbitration
This article concerns one of the topics which heavily discussed at the same time in the international commercial arbitration and in the international investment arbitration: commencing arbitration by the party which consists of more than one or claimants. That type of arbitration is called “mass claims arbitration”, “collective claims arbitration” or “multi party arbitration”.
It is important to see the nature of the problem in international commercial arbitration as older and more “experienced”. It is pierced with national law order and by that varies from country to country. In some countries question of multi-party claims depends on parties’ consent in arbitration clause, in others parties in order to exclude mass claims need to exclude it in agreement etc.
Situation seems to be slightly more complicated in international investment arbitration commenced under the ICSID Convention. As almost hermetic system its independence gives no direct answer to the question. Answers given by case practice is in favor of mass claims as a natural instrument in ICSID system, which does not need any consent in order to be accepted and by that co have an arbitration case with multi-party claimant. Minority view is presenting opposite attitude according to which mass claim arbitration can be accepted only when both parties agreed to it.
Discussion is still in progress, but according to author’s opinion multi-party claimant is a natural extension of the unique ICSID system.
2. Ambiente v Argentine Republic (Decision on Jurisdiction and Admissibility, 8 February 2013) para 122 (hereinafter Ambiente)
“For reasons of clarity and to avoid any confusion in this area which is highly prone to a “terminological imbroglio”, the Tribunal will in its subsequent reasoning stick to qualifying the present proceeding as a “multi-party action” or “multiparty proceeding”.”
3. Manish Aggarwal, Simon Maynard “Investment treaty arbitration post-Abaclat: towards a taxonomy of ‘mass’ claims”, p. 8 (source: http://joomla.cjicl.org.uk/journal/article/pdf/228, acessed on 18th of September 2015)
4. Edwin Tong Chun Fai, Nakul Dewan “Drafting arbitration agreements with ‘consolidation’ in mind?”, Asian international arbitration journal, volume 5, number 1, p. 79. (source: https://www.kluwerlawonline.com/abstract.php?area=Journals&id= AIAJ2009003, accessed on 18th of September 2015)
5. Ibid. p. 81
6. Abaclat paras 273-78.
7. Ibid. ¶ 56, 58
8. Abaclat para 64
9. Abaclat para 217
10. Abaclat para 127
11. Abaclat para 483
12. Abaclat para 486, 487, 488
13. Abaclat para 489, Ambiente para 145.
14. Abaclat para 490
15. Ambiente paras 131-133
16. M Steingruber, ‘Case Comment, Abaclat and Others v Argentine Republic: Consent in Large-scale Arbitration Proceedings’ (2012) ICSID Review (Fall 2012) 27 (2), p. 237, source: http://icsidreview.oxfordjournals.org/content/27/2/237.full. pdf+html, accessed on 18th of September 2015.
17. Abaclat para 190
18. Ambiente paras 100-101.
19. Abaclat paras 518-520.
20. Abaclat para 166, Ambiente para 76
21. Abaclat para 543, Ambiente paras 152-162
22. Abaclat paras 141-144.