6 Parallel Proceedings: The Disregard of Procedural Good Faith by Using Multiple Forums of Dispute Resolution

Subject(s):

Good faith — General principles of international law — Relationship of international law & host state law — Parallel proceedings

This chapter examines how the use of multiple forums for the resolution of the same dispute can undermine the principle of good faith in investment arbitration. It first considers the relationship between national courts and arbitral tribunals in investment arbitration before explaining the process of parallel proceedings. In particular, it highlights problems with parallel proceedings in investment arbitration, reasons for initiating parallel proceedings, and how the use of competing forums is regulated in public and private international law. The chapter then reviews cases that illustrate three scenarios of parallel proceedings in investment decisions in which the principle of good faith is only implied: separate contract or concession agreement, concurrent arbitral proceedings, and parallel court proceedings. It also discusses the question of whether intra-EU disputes should be decided in European courts or investment tribunals and concludes with an analysis of the ultimate relevance of good faith to the issue of parallel proceedings.