1 Parallel proceedings in international arbitration Day 1 Arbitration AcademySpecial course Session 2012Prof. Gabrielle Kaufmann-Kohler

2 July 18Introduction Outline of special course July 19Discussion on main instruments to handle multiple proceedings July 20Continuation of discussion, recap and assessment Outline of special course

3 Outline of today’s class 1.Subject and objective of class 2.Reasons for multiple proceedings 3.Inventory of instruments to handle multiple proceedings

4 1.1 Illustrations of situations with multiple proceedings to illustrate the subject An illustration in investment arbitration: Vivendi v. Argentina

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

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

7 1.2Objective: 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?

8 2.What are the reasons for multiplicity?

9 2.1Multiple sources of claims –Several connected contracts – Treaty and contract – Several treaties

10 2.2Multiple actors –multiple contract parties – multiple and / or indirect shareholders

11 2.3Multiple fora

12 2.4Policy considerations Is the multiplicity of proceedings good or bad? why? should it be promoted or discouraged?

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

14  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

15  Class / mass arbitrations  Antisuit injunctions  Others?

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