1 parallel proceedings in international arbitration day 1 arbitration academyspecial course session...

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Parallel proceedings in international arbitrationDay 1

Arbitration Academy Special courseSession 2012 Prof. Gabrielle Kaufmann-Kohler

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July 18 Introduction Outline of special course

July 19 Discussion on main instruments to handle multiple proceedings

July 20 Continuation of discussion, recap and assessment

Outline of special course

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Outline of today’s class

1. Subject and objective of class2. Reasons for multiple proceedings3. Inventory of instruments to handle multiple

proceedings

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1.1 Illustrations of situations with multiple proceedings to illustrate the subjectAn illustration in investment arbitration:Vivendi v. Argentina

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Another illustration in investment arbitration: CME v. Czech Republic and Lauder v. Czech Republic

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Illustration related to commercial arbitration: Arthur Andersen v. Andersen Consulting (Swiss Federal tribunal, 8 December 1999)

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1.2 Objective:i. Understand

• the typology of multiple proceedings in commercial and investment arbitration• their reasons• the available instruments to handle them and their operation

ii. Assess whether the existing legal instruments are satisfactory or whether improvement is needed; if so, how to improve?

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2. What are the reasons for multiplicity?

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2.1 Multiple sources of claims

– Several connected contracts– Treaty and contract– Several treaties

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2.2 Multiple actors– multiple contract parties– multiple and / or indirect shareholders

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2.3 Multiple fora

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2.4 Policy considerationsIs the multiplicity of proceedings good or bad?• why?• should it be promoted or discouraged?

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3. What are the main instruments to handle multiple proceedings?

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Res judicata and lis pendens Consolidation

of claims and of proceedings

Joinder of third parties Treaty-specific instruments

Fork in the road Waiver provision Umbrella clauses

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Class / mass arbitrations Antisuit injunctions Others?

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