Abuse of Process in International Arbitration

This is the authors' abstract. We don't add key points for this paper.

Speaking at a conference held at McGill University in 1988, the late Professor Philippe Fouchard observed that the field of international arbitration had become plagued by misconduct and riddled with procedural disputes.2 He had not seen anything yet. Over the past decades, parties to arbitrations and their lawyers have developed an unprecedented array of procedural tactics designed to undermine and prejudice their opponents and to increase the chances that their claims prevail. The past five years in particular have witnessed the emergence of litigation strategies of the very worst kind, which threaten to undermine the reputation of international arbitration as an effective and reliable means of resolving international disputes. To take just one example, I act as counsel in an on-going matter involving four parallel arbitrations concerning the same dispute. The arbitrations were brought against our clients, a State and two State-owned companies, for the benefit of the same interests. Shareholders at different levels of a chain of companies initiated two duplicative investment treaty arbitrations against the State under separate investment treaties.3 The locally incorporated company sought the same relief as its shareholders in two duplicative commercial arbitrations in different fora.4 Seeking to multiply their chances of obtaining recovery, these related parties dragged our clients through a series of four full-blown proceedings before four different tribunals, each with two-week hearings involving essentially the same fact witnesses and experts.