The Proliferation of Bits: Conflicts of Treaties, Proceedings and Awards

Abstract:     
The considerable number of bilateral investment treaties (BITs) in force has given rise to conflicts when, in relation to the same subject matter, a right of action exits for a given investor (or related investors) under different BITs. In fact, two recent international disputes, the CME v. Czech Republic and Lauder v. Czech Republic arbitrations, have attracted widespread attention as the first example in which this situation has arisen.

The same acts by the Czech Republic were subject to two separate arbitrations conducted concurrently. The two cases, however, underwent conflicting procedures, were dealt with under conflicting governing treaty provisions and resulted in seemingly conflicting awards. This situation has highlighted the risks inherent in the current international investment regime of intricate, non-coordinated networks of BITs. The fundamental risk is that this glaring inconsistency could potentially bring a backlash against international investment. On the other hand, the speedy completion of all litigation in the Czech cases (including full payment by the State concerned), notwithstanding these complexities, indicates that international commercial arbitration (rather than institutional frameworks providing for remedies such as consolidation of proceedings) may effectively resolve disputes, with full respect given to substantive law and due process.

The CME/Lauder v. Czech Republic arbitrations were possibly the first publicly known disputes under a BIT decided through international commercial arbitration proceedings in accordance with the UNCITRAL rules instead of within the International Centre for Settlement of Investment Disputes (ICSID). The national courts of the country where the award was rendered, Sweden, had to rule on the challenge, brought in accordance with the local arbitration statute, by the losing State, in which the Czech Republic argued to set aside the awards based on the alleged conflict of the two proceedings and resulting awards. This Essay considers the implications of these proceedings and subsequent judicial rulings.

Number of Pages in PDF File: 12

Keywords: international arbitration, investment, czech republic, international law, ICSID, UNCITRAL

working papers series