This is the first systematic analysis of multiple proceedings arising from investor-state disputes, including proceedings before multiple arbitral tribunals, the domestic courts of host states, and other forums such as the European Court of Human Rights. It seeks to identify clear, predictable, and sensible coordination mechanisms and to suggest an application of these mechanisms that reduces jurisdictional fragmentation, jurisdictional competition, and the potential for abuse of the complexities of the system of international investment protection.
The author explains how uncertainty in the area extends to several issues: there are doubts as to which forums have jurisdiction over a dispute and to what questions exactly this jurisdiction extends; there are doubts as to the mechanisms that should be applied to coordinate multiple proceedings (including consolidation, hierarchical coordination mechanisms, lis pendens and res judicata, and general principles of comity and prohibition of abuse of process) and how these mechanisms relate to each other; there are also doubts as to the law applicable to coordination mechanisms and the specifics of their application.
The book begins with an examination of the characteristics of the international investment framework that frequently lead to multiple proceedings. It then addresses the issue of determining jurisdiction, a prerequisite for the application of any mechanism for further coordination. The author goes on to examine the role of agreed coordination (such as the consolidation of proceedings) versus 'default' coordination mechanisms; the role of hierarchy of forums in coordination, which he argues is relevant when coordinating treaty proceedings on the one hand and non-treaty proceedings on the other; the principles of lis pendens and res judicata, which he argues apply only under limited circumstances; and concludes with the establishment of guidelines regarding the application of the principles of comity and the prohibition of abuse of process. This inherently practical subject is exclusively concerned with the existing law and seeks to provide serviceable solutions to the uncertainty facing practitioners and scholars in the current climate of investment law.
About the Author
Hanno Wehland, Senior Associate, International Arbitration Group, Herbert Smith Freehills LLP, London
Dr Hanno Wehland is a Senior Associate in the International Arbitration Group at Herbert Smith Freehills LLP, London, where he specialises in international investment arbitration and public international law. He has previously practiced in the arbitration groups of several other major law firms including Eversheds LLP, Paris, and Wilmer Cutler Pickering Hale & Dorr LLP, London, and has extensive experience of both investment and commercial arbitration proceedings. He completed his doctorate in law at the University of Geneva under the supervision of Professor Gabrielle Kaufmann-Kohler and holds degrees from University College London and Humboldt University Berlin. He has published a range of articles in English and German, and also practices in French and Spanish.
Table of Contents
2. Characteristics of the international investment framework leading to multiple proceedings
3. Determining the jurisdictions of competing forums in the context of investment disputes
4. Mechanisms for the coordination of multiple investment proceedings
5. Hierarchy as a coordinative mechanism in investment treaty arbitration
6. The application of lis pendens and res judicata in investment treaty arbitration
7. Overarching principles for the coordination of multiple proceedings
8. Summary of results and outlook