Zarra, Giovanni (2016) Managing Parallel Proceedings in Investment Arbitration. [Tesi di dottorato]

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Item Type: Tesi di dottorato
Lingua: English
Title: Managing Parallel Proceedings in Investment Arbitration
Creators:
CreatorsEmail
Zarra, Giovannig.zarra@hotmail.it
Date: 1 March 2016
Number of Pages: 223
Institution: Università degli Studi di Napoli Federico II
Department: Giurisprudenza
Scuola di dottorato: Scienze giuridico-economiche
Dottorato: Tutela giurisdizionale dei diritti nell'ordinamento interno ed internazionale
Ciclo di dottorato: 28
Coordinatore del Corso di dottorato:
nomeemail
Boccagna, Salvatoresalvatore.boccagna@unina.it
Tutor:
nomeemail
Iovane, MassimoUNSPECIFIED
Mistelis, LoukasUNSPECIFIED
Date: 1 March 2016
Number of Pages: 223
Uncontrolled Keywords: Parallel Proceedings, Investment Arbitration, Res Judicata, Abuse of Process, Collateral estoppel, international law
Settori scientifico-disciplinari del MIUR: Area 12 - Scienze giuridiche > IUS/13 - Diritto internazionale
Date Deposited: 14 Apr 2016 07:52
Last Modified: 13 May 2019 01:00
URI: http://www.fedoa.unina.it/id/eprint/10678

Abstract

In dealing with the problem of parallel proceedings, the research starts, in Chapter 1, with a description of the taxonomy of parallel proceedings (Paragraph 1.1) and with an analysis of the most likely reasons behind the growth of this phenomenon (Paragraph 1.2). Chapter 1 deeply analyses the already mentioned policy considerations at the basis of the research (Paragraph 1.3). The following structure of the research follows the temporal sequence of the various phases of arbitration where the problem may emerge, namely jurisdiction, admissibility and post-award. The analysis starts – at Chapter 2 – by examining the jurisdictional stage, where, as it is demonstrated, there are no solutions to the problem of parallel proceedings. Indeed, this phase is based on the grundnorm of consent and there are no available legal tools that allow arbitrators to decline jurisdiction disregarding party autonomy (Paragraph 2.1). Similarly, remedies based on a sole exercise of discretion (such as comity) are not reliable in order to find a predictable solution to the problem of parallel proceedings (Paragraph 2.2). The research then moves to the analysis of the remedies available at the stage of admissibility. This methodologically imposes to preliminary deal with several other questions, such as the legal foundation of the distinction between jurisdiction and admissibility (Paragraph 3.1), the analysis of the inherent powers (if any) of arbitrators to safeguard the interests of justice while administering their proceedings, and the law applicable in international investment arbitration (with a particular focus on the applicability of general principles of international law) (Paragraph 3.2). We first of all demonstrate that international law provides us with some instruments in order to avoid parallel proceedings (not including lis pendens, as demonstrated in Paragraph 3.3), namely the principles of good faith and finality (Paragraph 3.4). These principles respectively furnish the grounds for the doctrine of abuse of process, on the one side, and res judicata and collateral estoppel, on the other side. It is then necessary to understand how and whether these tools may be applied in investment arbitration (Paragraphs 3.5, 3.6 and 3.7). This requires, firstly, an analysis of these doctrines in international law and, secondly, a comparative analysis of how they have been applied in different municipal systems (with a particular focus on the distinction between civil law and common law systems). It finally emerges that such doctrines have been applied also in a flexible and substance-oriented way, which would be very helpful in order to limit parallel proceedings. This approach is, indeed, highly desirable. Chapter 3 also demonstrates how these doctrines may operate in concrete (Paragraph 3.8) and put forward a proposal of amendment of rules of international arbitration in order to limit parallel proceedings and, at the same time, ensure the respect of due process (Paragraph 3.9). Finally, remedies available at post-award stage will be examined in Chapter 4. These remedies are different with regard to ICSID awards – being ICSID a self-contained regime – and with regard to non-ICSID awards, which shall be enforced according to the provisions of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In the former case, we try to understand whether the remedy of annulment provided by the ICSID Convention may be useful in order to avoid the existence of two duplicative awards (Paragraph 4.1). In the latter case the only available means to preclude the enforcement of a duplicative award is the public policy exception set forth in Art. V(2)(b) of the New York Convention. The analysis of the public policy exception involves several difficulties due to the involvement of municipal laws and courts and will require an examination of the national rules of private international law regulating the problem of conflicting judgments (Paragraph 4.2). Finally, Paragraph 4.3 tries to understand whether the existence of duplicative awards may be a ground for annulment at the place of the seat of arbitration.

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