The Iran-U.S. Claims Tribunal at 25: The Cases Everyone Needs to Know for Investor-State & International Arbitration (1)
Contents
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I Introduction I Introduction
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II Consolidation in the Iran-United States Claims Tribunal II Consolidation in the Iran-United States Claims Tribunal
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A. Authority for Consolidation and Coordination of Proceedings A. Authority for Consolidation and Coordination of Proceedings
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B. Key Cases B. Key Cases
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1. The Eastman Kodak Cases 1. The Eastman Kodak Cases
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2. The Ammann & Whitney Case 2. The Ammann & Whitney Case
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3. Coordinated Proceedings Where Related Parties Bring Similar Claims 3. Coordinated Proceedings Where Related Parties Bring Similar Claims
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4. Cases Ordered Assigned to Same Chamber and Dealt with Together 4. Cases Ordered Assigned to Same Chamber and Dealt with Together
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5. The Factor of Delay 5. The Factor of Delay
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6. Recovery as a Factor in Coordination 6. Recovery as a Factor in Coordination
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C. Analysis and Observations C. Analysis and Observations
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III. Consolidation Under BITs III. Consolidation Under BITs
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A. Standards in BITs Generally A. Standards in BITs Generally
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B. CME and Lauder B. CME and Lauder
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C. Argentine BIT Arbitrations C. Argentine BIT Arbitrations
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IV. Consolidation Under FTAs in General and NAFTA in Particular IV. Consolidation Under FTAs in General and NAFTA in Particular
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A. NAFTA Consolidation Provisions A. NAFTA Consolidation Provisions
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B. Formation and Jurisdiction of Consolidation Tribunal B. Formation and Jurisdiction of Consolidation Tribunal
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C. Standard for Consolidation C. Standard for Consolidation
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D. The NAFTA Corn Products/Almex Consolidation Proceeding D. The NAFTA Corn Products/Almex Consolidation Proceeding
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1. Background 1. Background
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2. Order of the Consolidation Panel 2. Order of the Consolidation Panel
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a. Significance of Confidential Business Information a. Significance of Confidential Business Information
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b. Deference to the Will of the Parties b. Deference to the Will of the Parties
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c. Similarity of Claims c. Similarity of Claims
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d. Possibility of Inconsistent Awards d. Possibility of Inconsistent Awards
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e. Efficiency and Delay e. Efficiency and Delay
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E. The Canfor NAFTA Consolidation Proceeding E. The Canfor NAFTA Consolidation Proceeding
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1. Background 1. Background
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2. Order of the Tribunal 2. Order of the Tribunal
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F. Observations on Corn Products and Canfor Consolidation Awards F. Observations on Corn Products and Canfor Consolidation Awards
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1. Avoiding Conflicting Decisions 1. Avoiding Conflicting Decisions
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2. Relevance of Confidential Information 2. Relevance of Confidential Information
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3. Burden of Proof 3. Burden of Proof
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4. Fairness and Efficiency 4. Fairness and Efficiency
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Conclusions Conclusions
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5 Consolidation of Proceedings in Investor-State Arbitration: From the Iran-U.S. Claims Tribunal to the NAFTA
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Published:12 July 2007
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Abstract
The consolidation of investor‐State arbitration cases has become an increasing challenge in the years since the issue was addressed in several cases before the Iran–US Claims Tribunal. The consolidation of related claims, or their coordinated hearing and resolution in related proceedings (or the absence thereof), has arisen as an issue in a number of cases arising under bilateral investment treaties (“BITs”). This chapter examines the factors that may be the most relevant to a tribunal's exercise of discretion. It considers the importance of commonality of issues, the nature of the relationship between claimants whose cases are subject to consolidation requests, the number of claims, and timing and cost factors as mapped against fairness and efficiency, as well as the relevance of the potential for conflicting decisions. Finally, it analyzes the range of approaches reflected in the Tribunal's handling of cases presenting common issues.
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