Introduction - Parallel Arbitrations

Cases where waivers and estoppel appear are frequent in parallel arbitration tribunals and awards in international arbitration, mainly regarding investment arbitrations. The caseload increases as time goes by .

This subject is especially important when dealing with investment arbitrations due, in great part, to the problems that may arise whenever one of the parties, mostly a State, fearing the results and promptness of an arbitral award, try to set up obstacles to the arbitral procedures, using Judicial measures to try to stop the arbitration or to nullify arbitral clauses, as in the Himpurna case. 'The need to develop techniques to avoid a duplication of proceedings is likely to be a major challenge for investor-State arbitration in the near future.'

In certain circumstances, the State opens more possibilities for settling disputes related to investments. Investors may choose to solve their disputes through the judicial courts or through arbitration, due to an international treaty (which may be the International Center for the Settlement of Investment Disputes - 'ICSID' or a Bilateral Investment Treaty - 'BIT'). The notions of conflicting treaty claims versus contractual claims are familiar to all those who are in the arbitral arena.

Also, an agreement may offer other alternatives. The investment, for instance, may be related to civil engineering agreements. In this case, we will find several connected agreements, each having different arbitral clauses, providing for the settlement of disputes in accordance with the rules of the International [Page128:] Chamber of Commerce ('ICC'), the United Nations Commission on International Trade Law ('UNCITRAL') or the International Federation of Consulting Engineers ('FIDIC').

In this regard, we may distinguish some alternatives. The dispute may be based on the interpretation of the obligations contained in one sole agreement. Reference to other agreements is only used to picture the situation as a whole. When there is a controlling company or one that is represented in a country other than the investor's, a claim before judicial courts may take place directly in that country. The 'natural jurisdiction' to the agreement will be waived, but there are still alternatives in the other agreements.

In more complex cases, we find issues of fact related to a group of contracts, which can be arbitrated under one or more contracts , or under the governing agreement, to a BIT or to a multilateral agreement, such as the ICSID, besides the possibility of resorting to State courts. 'During an initial phase, the recourse to ICSID witnessed a gradual increase of cases which followed the traditional pattern of filing arbitration requests stemming from agreements concluded between the foreign investor and the authorities of the host state which contained an arbitration clause attributing jurisdiction to panels of arbitrators chosen in conformity with and operating under the ICSID Rules. Throughout that initial phase, all claims pleaded were nothing but contractual claims generally based on alleged violations of the vested rights contractually granted by the host state authorities to the foreign investor.'

The investor will most likely try to escape the State jurisdiction bearing in mind the advantages of arbitration. 'A typical dispute clause in an investment treaty involves four distinct steps between the recognition that a dispute has arisen, and the constitution of an arbitral tribunal: (1) A period of consultation and negotiation; (2) a waiting period; (3) an election of forum and (4) an election of arbitral institution or rules'.

The increase in the number of BITs and the rise of some multilateral agreements concerning investment leads to a risk that foreign investors get a better treatment than the one given to nationals of some States.. Forum shopping might be the way to such advantages, with all the inconvenience that may derive from such a practice. 'The issue of 'arbitral forum shopping' is an ever more topical and problematic one, both in the context of international commercial arbitration.'[Page129:]

In the European Union, the Effer case brought this matter in discussion, and a very interesting decision by the European Court broached the subject going through other concepts, as the renvoi and conflicts of jurisdiction.

When we face a group of contracts, each of them with a different arbitral clause, the parallel arbitration problem may also arise in a strictly arbitral environment. A party could start an arbitration based on one of the agreements and another arbitration based upon another contract. The involved litigants would be the same, most of the factual matters would coincide, but the legal grounds for starting would be found as a possible breach of an obligation or some other cause arising from one of the agreements.

In the above-mentioned situations, incongruent decisions could be issued to related businesses and contracts and such a result is clearly undesirable. 'The problem of parallel proceedings within the context of arbitration, an area of increasing friction, received attention in Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara . (…) The Fifth Circuit's decision is particularly interesting in its discussion of the 'structural aspects' of the New York Convention which the court suggested contemplate simultaneous actions to enforce and annul.' About the mentioned Karaha case, 'undoubtedly, the case provides an interesting example of kind of procedural tools domestic courts might employ to prevent or, to the contrary, reinforce parallel enforcement and annulment proceedings. However efficient, such tools may confront the parties with many more conflicting obligations at a state level.'

The answer found by arbitral tribunals for those problems was the same when the litigants were private parties or a State was involved. Moreover, that answer had been used consistently in State Courts litigations - it was to resort to two very well known legal devices: waivers and estoppel, and its equivalent in civil law systems, all based upon the same old principles of law.

Let us now recollect some of the notions we already know about this subject, following the author's way of organizing ideas. We shall start by defining waivers and estoppel (related to parallel arbitrations), follow up by looking at their position in the civil law jurisdiction, and see how arbitral courts used these legal devices. [Page130:]

Waivers and estoppel

1. Waivers

A waiver is the intentional relinquishment of a right claim or privilege; the document that evidences such relinquishment; a dispensation, as from a rule or penalty; a deferment. Etymologically the word comes from the Anglo Norman 'weyver', to abandon.

A waiver being the act of intentionally or knowingly abandon or relinquishing a known right, claim or privilege, it is essentially unilateral, resulting as a legal consequence from some act or conduct of the party against whom it operates, and no act of a party in whose favour it is made is necessary to complete it.

2. Characteristics of the waiver

The waiver is essentially unilateral, resulting as a legal consequence from some act or conduct of the party against whom it operates, and no act of a party in whose favour it is made is necessary to complete it.

A waiver is characterized when a party has intentionally and voluntarily renounced its rights. Such renouncement may be spontaneous, or derive from a choice, for instance from resorting to a treaty claim or to a contractual claim. Traditionally, a waiver had to be made in writing to be enforceable.

If we look at the civil law countries, we find the words 'renonciation' in French, 'renuncia' in Spanish, 'renúncia' in Portuguese, 'Verzicht' in German and 'rinuncia' in Italian, which are employed in law to designate the abandonment or the relinquishment [of a right]. Renunciation, in this context, necessarily amounts to abandonment or to a voluntary discontinuance, by means of which the holder of a right, for instance, can choose to sue in a judicial court or to start arbitration.

3. Express and implicit waivers

The waiver, as well as renunciation, can be made expressly or may be deduced from the behaviour of a party, in which case it is called an implicit waiver.

With regard to a party's actions, in Menorah Insurance Company Ltd. v. INX Reinsurance Corporation , the First Circuit of the United States Court [Page131:] of Appeals found that 'the implicit waiver came from INX's entire course of conduct'. In accordance with the U.S. Foreign Sovereign Immunities Act ('FSIA'), for example, implicit waivers can be found in three situations, which are: (a) the foreign state agrees to arbitration in another country, (b) the foreign state agrees that the contract is governed by laws of a particular country or (c) the foreign state files a responsive pleading without raising immunity defense. In Creighton v. Qatar , according to the French Cour de cassation's ruling, the implicit waiver resulted from the execution by a Sovereign State, Qatar, of an ICC arbitration clause.

Until recently, the doctrine understood that the agreement of a State to arbitrate constituted a waiver of immunity from jurisdiction, but did not necessarily imply a waiver of immunity from execution.. This understanding is due to the mutual respect of the various States to each other's Sovereignty and their reluctance to enforce judgments or awards against a Sovereign State. The reasoning has evolved in some countries. The Sovereign State's agreement to arbitrate expresses its willingness to act as a private party. It may also imply its waiver of immunity from execution, at least with regard to funds and other properties of the State specifically destined to commercial purposes. Whether such funds and properties are used for commercial purposes is a matter of proof.

The problem is more complex when the waiver is implicit because it is a legal principal recognized by both common and civil law that the renouncement of a faculty or a right must be clear and unequivocal. As we have previously mentioned, the implicit waiver may derive from the party's conduct. The French Cour de cassation, for instance, has, on several occasions, decided that a party had waived its right to compel arbitration because it did not, for instance, contest the Judge's jurisdiction.

As we saw, one can find cases in investment arbitrations where a situation arises when the party has more than one alternative to act, it can make a treaty claim or a contractual claim; also, one State might offer the party a choice to solve disputes either through the National Courts or through arbitration.

The Lanco International Inc. v. La República de Argentina case is illustrative of the situation. The Tribunal examined the nature of the consent to arbitrate. Article VII of the Bilateral Investment Treaty Argentina - USA contained a provision by means of which the investor could choose to solve disputes either in the Argentinean courts, through arbitration or any other type of [Page132:] dispute resolution proceeding previously agreed. The investor elected the arbitration. The parties had also executed a Concession Agreement, which stipulated that the disputes arising out of it would be resolved before the Federal Courts of Buenos Aires. Argentina claimed that it would not solve any disputes through arbitration because the concession agreement set forth that the Courts would solve the disputes and, therefore, the last decision should prevail. The Tribunal understood that Argentina's consent to solve disputes through arbitration derived from the Treaty (mentioned above), of which it was a signatory. The investor's consent to arbitrate, on the other hand, was expressed, in writing, by a letter sent with its claim for arbitration, filed with ICSID in October 1997. The Tribunal understood that Argentina's consent to arbitrate could not be waived due to the execution of a later agreement between the investor and the Recipient State.

Once one of the parties has made the choice of the arbitral solution, it is waiving the right to have recourse to a Court of Justice, and vice versa. It cannot come back to the despised alternative that was initially waived: that is similar to the consequences of choosing a one-direction street in a crossroad.

We also find cases where the local judicial possibilities have to be exhausted by the parties before they can resort to international arbitration (this is allowed, for instance, in the ICSID Convention). The latter is neither a court of appeals nor makes a judicial review of the case. The arbitral tribunal serves to give an independent view and assure rights of foreign investors. Their review is intended to ascertain that the investors' rights are not prejudiced by biased decisions from the local courts or awards that deny internationally recognized rights and international public policy.

For a long time, the waiver had to be expressly made in order to produce effects. A we have previously mentioned, the doctrine progressively developed to accept that a waiver might also be implicit, whenever the choices, attitudes and declarations of will demonstrate that the party, albeit not having agreed to waive its rights in writing, acts as though it did do so.

Arbitral Tribunals and the Courts (especially the American ones) tend 'to consider that the prejudice to the adverse party is the key to identify whether a right to arbitrate has been waived'.

New York Courts, for instance, in evaluating whether there has been a waiver, also consider the following factors (which also apply to multiple arbitrations): [Page133:] '(1) the degree to which the party seeking to compel arbitration has contested the merits of its opponent's claims; (2) whether that party has informed its adversary of the intention to seek arbitration even if it has not yet filed a motion to stay the district court proceeding; (3) the extent of the non-merits motion practice; (4) its assent to the district court's pre-trial orders; and (5) the extent to which both parties have engaged in discovery. Simpler formulas may also be used such as the one applied by the Southern District of New York: […] a party's participation in the litigation does not constitute a waiver of the right to compel arbitration unless prejudice to the opposing party is demonstrated.'

We also find cases where an express waiver is a precondition to the beginning of arbitration. NAFTA's Chapter 11 is an example. The waiver required under Art. 1121 of NAFTA is meant for the party issuing it to evidence that it does not intend to initiate or continue proceedings regarding alleged breaches of the NAFTA provisions before Judicial Courts and/or Tribunals. Such renunciation to the rights of pleading in Judicial Courts and/or Tribunals should be effective as of the date of presentation of the waiver.

With regard to the application of Art. 1121 of NAFTA, Crivellaro writing about the first Waste Management case that 'the investor argued that the waiver required by NAFTA did not apply to the domestic proceedings which were going on in Mexico. The reason, according to the investor, was that the domestic proceedings involved allegations of violation by Mexico duties imposed by other sources of law, including the municipal law of Mexico. The ICSID tribunal did not accept this argument. (…) The tribunal added that possible overlapping of factual and legal finding was to be avoided. In my understanding, this decision is correct. Unlike the above election clause the wording of NAFTA Art. 1121 is not ambiguous.'

In a very instigating article, Bernardo Cremades has said that: 'The stipulations are ambiguous as to whether the investor must make the choice or waive its right to plead before National Tribunals, with respect to all of the claims relating to the specific treaty or relating to all of the claims regarding the controversy, regardless of its source. [...] With regard to the NAFTA, this same subject matter was examined [Page134:] in Waste Management Inc. v. The United Mexican States , in which the claimant argued that the waiver required under NAFTA […] does not apply to any conflict resolution procedure involving allegations that [Mexico] violated the obligations imposed by other sources of law, including the laws of Mexico […] The Arbitral Tribunal refused such argument, assuming that […] when both actions have their legal fundaments in the same measures, then they could not continue under the same imminent risk of the claimant obtaining a double benefit with the damages redress. This is exactly what Article 1121 of NAFTA intends to avoid.' (Our free translation)

Having drawn in broad terms issues concerning waivers, as space and time limitations impose on us, it is important now to evaluate the consequences of the waiver. One of the consequences is that a party which waived a right becomes subject to an estoppel objection from the opposing party.

4. Estoppel

The definition of estoppel in Ballentine's Law Dictionary summarizes the subject in a nice manner: 'A bar, which stoppeth a person or closes up his mouth to allege or plead what actually may be the truth. (…) A bar which precludes a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of a judicial or legislative officers or by his own deed or representations, express or implied (…)'

The estoppel doctrine has its origin in the Common Law, corresponding, in the civil law tradition, to the 'preclusion' of a right.

Some figures of the Civil Law correspond partially to estoppel. For instance, in Portuguese we would be speaking of 'preclusão', in German 'Präklusion', and in French 'fin de non-recevoir'.

With regard to the French fin de non-recevoir, it too is understood as a consequence of renunciation.

Some of Cadiet's assertions in his article concerning the waiver of the right to use procedural irregularities in arbitration, are worth mentioning, as they reflect the French doctrine in precise and succinct manner: [Page135:] 'To what category does the fin de non-recevoir, derived from claimant's implicit waiver, belong? I tend to see a fin de non-recevoir of private interest, not so of public policy, but a fin de non-recevoir resulting from claimant's lack of interest because he cannot expect to take advantage of an irregularity which he had previously waived'. (Our free translation)

'Fin de non-recevoir', Präklusion and preclusão are, thus, civil procedure institutes that prevent a party from practicing, certain acts. It is the impeding or stopping the start or continuance of someone's [procedural] act.

There is no absolute correspondence between the definitions and effects of such legal figures in the comparative law although the hard core of the notion and the objective pursued in the legal construction are the same. This should not be a surprise, as we shall find the same old roman precepts underlying the reasoning in the use of estoppel or preclusion (see hereunder).

Estoppel is, nowadays, regarded as a general principle of international procedural law, and the corresponding word - preclusion, preclusão - is used in translation but it should be understood in the context where it was employed and not in the one it was conceived in the Common Law. In other words it is the idea that lies beyond the estoppel notion that is applied in international arbitration, not its concrete application under any particular law, unless the arbitrators say so.

We can distinguish between different sources of estoppel. To some extent, the figures that partly produce the same or similar effects, with a view to solving the same types of issues and problems that arise, give way to similar broaching of the problems involved.

Thus, in the civil law countries one distinguishes the causes of 'preclusão' or 'preclusion' as being logical, substantial and temporal. The latter corresponds to the statutes of limitations but will not be dealt with herein because it is not the object of this article. The Common Law also distinguishes different categories of estoppel, such as 'equitable', 'substantial' and 'issue'. About the last category, 'the doctrine of collateral estoppel, or issue preclusion, may hold a little more promise for addressing the problem of parallel proceedings. Courts that apply collateral estoppel use it to preclude a party from asserting inconsistent positions on arguments or obligations that party has asserted in [Page136:] pleading elsewhere. (…) Collateral estoppel was effectively applied in at least one enforcement litigation in the United States in which the court precluded respondent from asserting a position whether issue preclusion also applies in parallel arbitration.'

We will find an example of the equitable estoppel in Hughes Masonry Co. v. Greater Clark County School Building Corp . There, a masonry contractor sued a construction manager for interference with its contractual relationship with the building owner. Both the contractor and the manager had separate contracts with the owner but only the contractor's agreement contained an arbitration clause. The contractor pointed out that the manager was not a party to the agreement. Nonetheless, the 7th Circuit of the United States Court of Appeals decided that the contractor was

'equitably estopped' from refusing to arbitrate, because the very basis of its claim was that the manager breached the duties and responsibilities assigned and ascribed to the manager under the agreement that contained the arbitration clause. According to the court, the tort claims against the manager were actually claims of breach of the manager's contractual obligations, and the manager was specifically named and its duties were outlined in the underlying contract. Consequently, it would have been 'manifestly inequitable' to allow the contractor both to claim that the manager was liable for a failure to perform under the terms of the contract, and at the same time to deny that the manager was a party to the contract in order to avoid arbitration.'

Arbitrators as well as judges have also in some few cases used the estoppel doctrine in order to enforce non-signatories of an arbitral clause to arbitrate when the non-signatory had benefited from the agreement were such arbitral clause is inserted. One such case is Deloitte Noraudit A/S v. Deloitte Haskins & Sells, US. The first party, a Norwegian accounting firm '[…] received an agreement concerning the use of the trade name 'Deloitte' in association with accounting practices. The terms of the agreement - containing an arbitration clause - specifically provided that the local affiliates of the international accounting association Deloitte Haskins & Sells International were entitled to use the trade name 'Deloitte' in exchange for compliance with the provisions of the [Page137:] agreement. The Norwegian accounting firm made no objection to the terms of the agreement and proceeded to use the trade name, despite the fact that it never signed and returned the agreement to Deloitte US as required. The Court of Appeals for the 2nd Circuit held that by knowingly exploiting the agreement, the accounting firm was estopped from avoiding arbitration, despite having never signed the agreement. According to the Court of Appeals Noraudit failed to object to the agreement when it received it… In addition, Noraudit knowingly accepted the benefits of the agreement… Thus, Noraudit is estopped from denying its obligation to arbitrate under the … agreement.'

In a Partial award on Jurisdiction and Admissibility, (ICC case no. 6474 of 1992), we find an example of substantial estoppel: 'Be that as it may, the general principle of good faith - or what may be considered as one of its possible forms, the international concept of 'estoppel' ('non venire contra factum proprium') - would seem to suffice to prohibit, under the above-mentioned assumption, the defendant from relying on its own non-recognition by the international community in order to avoid or annul its previous undertaking to arbitrate under the contracts.'

Estoppel is a concept built over principles of law dating back from the Roman times. The same can be said of waivers. These principles will now become the object of our attention, as they are the origin of different rules that amount to similar results in equivalent situations arising under different laws.

5. Principles of law underlying waivers and estoppel

Albeit seen by some people as a Common Law institute, estoppel is based on principles of the ancient Roman law. This is also true when we analyze the fundaments and basis of 'preclusão' or 'fin de non-recevoir' and other corresponding figures of the civil law tradition. Let us see some of them.

6. Electa una via non datur regressus ad alteram

The Latin adage Electa una via non datur regressus ad alteram corresponds, to some extent, to one of the Common Law causes of estoppel. [Page138:]

The fork in the road provision (a choice between submission to domestic courts or to international arbitration, 'the fork-in-the-road clause obliges the investor to make a forum selection which cannot be modified thereafter'), which is common in BITs, is an clarifying example of the applicability of such principle.

The BIT may provide for the settlement of disputes between a signatory and an investor to happen through arbitration or through the National Courts of either one of the signatories. Provided that the parties and the subject matter of the disputes are the same, once the choice to one alternative has been made, the other proposed possibilities for settling disputes have been waived and the party concerned is consequently estopped from pleading in the other venue. About the application on contracts '(…) it is impossible to generalize on whether a 'fork-in-the-road' clause or waiver forces an investor to elect between treaty and contract claims, because it would seem to depend on the exact wording of the treaty.'

One example is the France-Argentina BIT, which contains a specific provision in its Article 8.2:

'[…] If the dispute is not settled within six months from when it was brought up by either one of the parties, it will be submitted, upon the investor's request:

- to the national jurisdictions of the Contracting Parties involved in the dispute;

- to international arbitration […]

Once the investor has decided to submit his claims either to the Courts of the Contracting Party or to international arbitration the recourse to either one of such proceedings is final.'

We can find the concept underlying such provisions on the Latin adage Electa una via non datur regressus ad alteram , which is meant to avoid the duplication of proceedings regarding one and the same issue, so as to inhibit incongruent decisions and other inconvenience.

Such inconvenient situations could stem from the possibility of doing forum shopping or from abuse of proceedings as Kreindler explains, '[C]learly, the next few years of experience in both areas, both BIT negotiation and BIT arbitration, will be crucial to ensuring that forum shopping is neither abusive nor is stifled, but rather allowed to function within the proper parameters [Page139:] that have existed, in a different way, in transnational litigation.' Some of this inconvenience can be avoided where the parties are limited in their possibility of introducing their claims over the same subject matter, against the same party in a variety of jurisdictions. Before the claim is actually brought up, the investor may elect, among several options, the most adequate venue. However, once the choice has been made, it is final and implies a waiver of the other possibilities, and gives rise to estoppel.

7. Neminem turpitudinem suam allegans potest and Non venire contra factum proprium and venire contra factum proprium

Nobody shall be entitled to derive an advantage out of its own improper behaviour, which is the English translation of the Latin adage Neminem turpitudinem suam allegans potest , is another example of the Roman law tradition applied to the concept of estoppel.

Courts and arbitral tribunals tend to consider that a party is estopped from claiming the application or invalidation of certain clauses and obligations of a contract when that same party has previously taken advantage of such obligations or clauses. The party is impeded to claim because of the violation of its duty to act in good faith.

In fact, the essence of equitable estoppel often lies on the principle expressed by such Latin saying - that one cannot take advantage of its own reprehensible conduct.

On numerous occasions, arbitral tribunals have understood that a State cannot invoke Sovereign Immunity to escape arbitration after having signed and agreed to a contract containing an arbitral clause: such conduct is characterized as venire contra factum proprium.

This situation also might give rise to the application of the Neminem turpitudinem suam allegans adage which is another root of the estoppel doctrine, and that may preclude the access of the party to a remedy in arbitration or in the courts.

According to such principle, the duty of good faith is violated if a person acts in contradiction with its past behaviour, provided that such past behaviour has given rise to trustworthy protection, which is subsequently deluded by the following actions: [Page140:] 'In addition, the claimant could not, on the one hand, contend that there are two 'separate' and 'unrelated' disputes arising out of two 'separate agreements' and, on the other hand, sustain that the participation of the same arbitrator in such two 'unrelated' disputes could present a risk of bias. If the disputes are really unrelated, there is logically no risk of bias. Such an attitude could be considered as contrary to the principles of good faith and of estoppel (venire contra factum proprium ).'

In one case, the Claimant took advantage, during the whole contractual period, of the terms and provisions of its agreement with Respondent. When the contract terminated, Claimant pleaded the invalidity of certain clauses and compensation for damages suffered. The Arbitral Tribunal, however, understood that the Claimant was impeded to bring such claims to arbitration because it failed to do so throughout the entire contractual period. The Arbitral Tribunal considered that the Claimant, when submitting such pleas to arbitration, breached its duties of acting in good faith [towards Respondent]. It constituted venire contra factum proprium . to allege, at such a late stage, the invalidity of provisions of an agreement which Claimant itself had benefited from.

Conclusion

Our vol d'oiseau view of this subject, with references to doctrine and arbitral jurisprudence and the abundant cases, some of which were quoted in this paper demonstrate how frequent is the use of the concepts of waiver and estoppel (and its equivalents) in international arbitrations

We had then the opportunity to see the characteristics of both figures and the fact that they are based in general principles originated in the Roman law, widely acknowledged in all the countries that practice international arbitration.

We also verified that the application of such legal institutes do not correspond, in a variety of cases, to the one we found in the internal law of several countries. [Page141:]

We note that a slow but constant movement is occurring, in the direction of a law that would be common to all the people, in which the best characteristics of the national systems are blended and produce both a legal lingua franca and a jus commune, which has a functional, pragmatic, evolving and flexible focus that is spreading out from the practice of international arbitration and tribunals and influencing national laws. From the doctrinaire approach of the new merchant law, we are going towards the harmonization of the rules applicable to international trade. This subject has illustrated the case.

1
The author expresses his gratitude to Ms C. Saiz Jabardo who helped him carry out the research for this paper. However any mistake is the author's.

2
'Proliferation of international courts ant tribunals will probably not stop because of the principle of lis pendens and related questions, but it might become manageable with a greater degree of certainty. A centralized-decentralized system of international dispute settlement is evidently here to stay, but this does not exclude the pertinent interactions between the two'. Francisco O. Vicuña, 'Lis Pendens Arbitralis' (in this publication, see chapter 7 at p. 207).

3
In Himpurna California Energy Ltd. (Bermuda) v. Republic of Indonesia (available at www.kluwerarbitration.com) the Defendant tried to obstruct the arbitration by entering claims in its Judicial Courts. The Arbitral Tribunal had to put a stop to such attitudes so as to enforce the arbitration agreement: See relevant excerpts: '[…] rather than use its judicial and governmental processes to implement the Terms of Reference signed by it, the Republic of Indonesia is attempting to use them to divest this Arbitral Tribunal of its jurisdiction.' '[…] a government-controlled entity has instituted legal proceedings in Indonesian courts designed to obstruct the implementation of the Terms of Appointment signed by the Republic of Indonesia' '[…] The Arbitral Tribunal understands that the Republic of Indonesia owns Pertamina, and that the President of the Republic of Indonesia appoints its Commissioners and Managing Directors. The claimants have pointed out that the Head Director is authorized, under Art. 23(1) of Law 8 of 1971, to represent Pertamina in court, and that a Director may be dismissed, under Art. 21(b), for acting in conflict with the interests of the Government of Indonesia. The respondent has not contradicted these statutory references. The Republic of Indonesia has not shown any evidence of its having instructed (or even sought to persuade) Pertamina to act in a manner that would ensure compliance with the Terms of Appointment signed by the Republic of Indonesia. Most of all, the Republic of Indonesia has not even attempted to demonstrate that it used its legal dominion to prevent Pertamina from pursuing a judicial initiative which is fundamentally at variance with the Republic of Indonesia's undertakings.'

4
Bernardo M. Cremades and David J.A. Cairns, 'Contract and Treaty Claims and Choice of Forum in Foreign Investment Dispute' ( in this publication, see Chapter 1 at p. 13).

5
The author faced this problem in a recent case. Several connected agreements contained different arbitral clauses, resulting in multiple arbitral proceedings, all of them regarding inter-related contracts and issues of fact. One of the processes took place in Brazil, in the Portuguese language, in accordance with the laws of one of the parties' country and UNCITRAL rules, another in Portugal, bilingual (Portuguese-English) and in accordance with the same laws of the previous case and another arbitration taking place in London, in the English language, under the laws of England and the LCIA rules.

6
Ahmed S. El-Kosheri, 'Contractual Claims and treaty claims within the ICSID Arbitration System' (in this publication, see Chapter 2 at p. 43).

7
Bernardo M. Cremades and David J.A. Cairns, 'Contract and Treaty Claims and Choice of Forum in Foreign Investment Dispute' (in this publication, see Chapter 1 at p. 13).

8
See B. Cremades, 'La proliferación de instrumentos de inversión multilateral y bilateral crea el riesgo de que los inversores extranjeros puedan obtener de hecho una mayor protección para sus inversiones que los inversores nacionales.' [...] 'Las consecuencias jurídicas asociadas al hecho de si un Estado es parte o no en el Convenio Ciadi son, como puede verse, de fundamental importancia y una vez ponderadas las consecuencias será cuando un Gobierno lleve a cabo la decisión de adherirse al Convenio Ciadi o de permanecer fuera del sistema.[...]'. Also Gaillard, E., L'arbitrage sur le fondement des traités de protection des investissements - Les états dans le contentieux économique international, I. Le contentieux arbitral. 'International arbitration on the basis of bilateral investment treaties has experienced a significant increase in the past few years. Although this type of litigation has a pronounced collective nature, it relies essentially on the multiplication of procedural options available to the investor. The international legislator has created in this area a forum shopping in favorem that enhances the substantive protection afforded to the investor. The law resulting from the exercise of these options is characterized by the distinction between the contractual responsibility of the State party as such and the international responsibility of the host State, with the regime of the latter tending to disenfranchise itself from the constraints contained in the contract, as relates to both forum selection and governing clauses' (Emphasis added).

9
Pierre Mayer, Droit international privé, Montchrestien, 1987, n° 280 et seq.; Batiffol et Lagarde, Traité de droit international privé, 1981, LGDJ, nNo.370; Bernard Audit, La fraude à la loi, thèse, Dalloz, 1974, and particularly Para. 495, p. 389 et seq. 'Que la fraude consiste à jouer avec la règle pour mieux s'en jouer, cette constatation se retrouve dans l'analyse de la fraude à la loi ou dans la manipulation des critères de compétence juridictionnelle que constitue le forum shopping.'

10
Richard H. Kreindler, 'Arbitral Forum Shopping' (in this publication, see Chapter 6 at p. 153).

11
Bernard Audit 'Arbitration and the Brussels Convention':'This is indeed what the ECJ decided. Other and perhaps better arguments than Effer can be put forward in order to support its ruling. To the objection that alleging an arbitration agreement should not defeat the jurisdiction of national courts as provided for in the Convention, one may reply first that, just the same, the mere challenge of an arbitration agreement should not be sufficient to defeat that agreement.[…]. As to the risks of forum shopping and contradictory decisions, resulting from the possibility to initiate arbitration in one country or another, it is true that a common attitude of the contracting States' courts regarding the enforceability of arbitration clauses appears desirable both generally and in a given situation. But this is not an unattainable goal. A common general attitude will be achieved inasmuch as the Contracting States will have ratified the New York Convention or the Geneva Convention. As to what is left of discretion to the courts, one should recall that the Brussels Convention as a whole is founded upon mutual trust between the judiciaries of the Contracting States, as evidenced by several features Therefore, it is not unseemly that a Member State judge having jurisdiction under his ordinary rules although not under those of the convention be allowed to decide the issue himself.'

12
'(…) forum non-conveniens has been gaining international acceptability, altough many times the same objectives have been achieved under doctrines of abus de droit, closer to civil law jurisdictions, and lis pendens when applied as a general principle of law. Francisco O. Vicuña, Lis Pendens Arbitralis (in this publication, see chapter 7 at p. 207).

13
See for instance, Bulk Oil (Zug) A.G. v. Trans-Asiatic Oil Ltd S.A cited by Anthony Diamond, 'Multi-Party Arbitrations A Plea for a Pragmatic Piecemeal Solution' (available at www.kluwerarbitration.com): 'the parties had concluded two contracts (I) a crude oil transportation agreement which was governed by English law and incorporated an arbitration clause which provided for arbitration in Geneva under ICC Rules and for the arbitration procedure to be governed by English law and (II) a time charter of a vessel which was also governed by English law but provided for disputes to be decided by the English Courts. The Plaintiffs began an action in England under the time charter whereupon the Defendants sought to counterclaim under the terms of the oil transportation agreement. The Court (Kerr. J.) refused to permit the counterclaim to proceed and granted a stay on the ground that in agreeing to different jurisdictional provisions for the two contracts, the Defendants could in a sense be held responsible for the dilemma in which they found themselves.'

14
The filing of more than one arbitration, related to different but connected contracts is more common than we could think. Among others, arguments that have been used in the past to prevent this situation are: 'if the parties' intention is to be considered, it cannot be taken by an arbitral tribunal that the parties have agreed to arbitrate the same disputes before two different tribunals and under two different arbitration agreements.' (available at www.herbertsmith.com/publications/publications

15
335 F.3d 5th (Cir. 2003)

16
'Parallel Proceedings and Arbitration', in The International Lawyer, Summer 2004, Vol. 38, No. 2, American Bar Association at p. 309

17
David Rivkin, 'The impact of Parallel and Sucessive Proceedings on the Enforcement of Arbitral Awards' (in this publication, see Chapter 10 at p. 269).

18
Henry Campbell Black, Black's Law Dictionary, M.A. St Paul (Minn), West Publishing (1968) at p.1751. 'The intentional or voluntary relinquishment of a known right, (…); or such conduct as warrants an inference of the relinquishment of such right, (…); or when one dispenses with the performance of something he is entitled to exact or when one is in possession of any right, whether conferred by law or by contract, with full knowledge of material facts, does or forebears to do something the doing of which or the failure of forbearance to do which is inconsistent with the right, or his intention to rely upon it. (…). The renunciation, repudiation, abandonment or surrender of some claim, right, privilege or of the opportunity to take advantage of some defect, irregularity or wrong. (…) A doctrine resting upon an equitable principle, which courts of law will recognize.' (references to quoted decisions omitted).

19
Henry Campbell Black, Black's Law Dictionary, M.A. St Paul (Minn), West Publishing (1968) at p.1751. 'The act of waiver per se is a unilateral act, since its effects in terms of extinguishment are occasioned solely by the intent underlying same. The requirement of a waiver in any context implies a voluntary abdication of rights, inasmuch as this act generally leads to a substantial modification of the pre-existing legal situation, namely, the forfeiting or extinguishment of the right. Waiver thus entails exercise of disposal by the holder thereof in order to bring about this legal effect. Whatever the case, any waiver must be clear, explicit and categorical, it being improper to deduce same from expressions the meaning of which is at all dubious.' (references to decisions omitted).

20
Award of 2 June 2000 in Case No. ARB(AF)/98/2; Decision of June 8 2001 in Case No. ARB (AF)/00/3 (available at www.kluwerarbitration.com).

21
See Jean-François Poudret and Sébastien Besson, Droit Comparé de l'Arbitrage International, (Bruylant/LGDJ/Schultess) at p. 341: 'La convention d'arbitrage prend fin en cas de renonciation, laquelle peut être expresse ou tacite et n'est soumise à aucune exigence de forme. On admettra en particulier une telle renonciation lorsque le demandeur agit devant le juge et que le défendeur procède sur le fond en omettant d'invoquer la clause arbitrale pour contester la compétence du tribunal étatique. Cette règle paraît incontestée en doctrine et a été énoncée par plusieurs juridictions.'

22
De Plácido e Silva, Vocabulário Jurídico, Atualizadores: Nagib Slaibi Filho and Gláucia Carvalho (Editora Forense, 22a Edição) at p. 1201 -'[…] renunciation, from the latin word 'renuntiatio', of 'renuntiare' (to declare or to announce that something is let off, given up or abdicated), in the legal sense designates the abandonment or the relinquishment of a right that one has over something. In this reasoning, the waiver always amounts in an abandonment or voluntary relinquishment, by means of which the holder of a right gives up its use or announces that it does not want to use it. The waiver can be express or implied, the reason for the express waiver and the tacit waiver. The express waiver ia the one that is clearly, positively declared or executed by means of an act through which the abandonment or relinquishment is declared or announced. The tacit waiver is deducted or presumed, deriving from the omission or non-execution of the act, within a legal term, which would hold a right [...] (our free translation).'

23
About Waiver (Aufgabe, Verzicht, Verzichtleistung): 'The intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right (…) Terms 'estoppel' and 'waiver' are not synonymous; 'waiver' means the voluntary, intentional relinquishment of a known right, and 'estoppel' rests upon principle that, where anyone has done an act, or made a statement, which would be a fraud on his part to controvert or impair, because other party has acted upon it in belief that what was done or said was true, conscience and honest dealing require that he not be permitted to repudiate his act or gainsay his statement' WEST's Law and Commercial Dictionary in five languages: a - j St. Paul West Pub. Co, (1988). Vol. 1 at p.754

24
Award of 26 December 1995 (available at www.kluwerarbitration.com)

25
In Zerniceck v. Petroleos Mexicanos (Pemex), the Courts found that an implicit waiver [of sovereign immunity] exists when a foreign state contracts to arbitrate in the United States.

26
Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration (Sweet & Maxwell) at p. 320: In many countries, a distinction is made between immunity from jurisdiction and immunity from enforcement. Such countries are ready to recognize that legal proceedings may validly be taken against a state (by arbitration or litigation) but are reluctant to enforce the resulting judgment or award. Indeed, most states refuse to allow execution to be levied against the property of another state or state agency. This position is illogical, but nonetheless it is widely adopted.'.

27
See Hugues Kenfack, 'Les immunités de juridiction et d' exécution de l'état et de ses émanations en tant qu'acteurs du commerce international' in Revue Juridique Tchdienne da Banque Tchadienne de Données Juridiques (BTDJ): 'En effet, si les biens d'un Etat sont saisis dans un Etat étranger, cela peut entraîner des difficultés aux relations internationales. Elle n'est pas que le prolongement de l'immunité de juridiction et sa spécificité. En raison de la gravite de ses conséquences, la jurisprudence française la décide même dans le cas où l'immunité de juridiction serait refusée.'

28
Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration (Sweet & Maxwell) at p. 320: '[…] for example, in Austria, the Federal Republic of Germany, the USA and England execution is only allowed against funds or other property held by the defaulting state or state agency for commercial purposes'.

29
Stephen J. Toope, Mixed International Arbittration, Grotius at p. 147.

30
See Hugues Kenfack, 'Les immunités de juridiction et d' exécution de l'état et de ses émanations en tant qu'acteurs du commerce international' in Revue Juridique Tchadienne da Banque Tchadienne de Données Juridiques (BTDJ): 'Le critère essentiel est ici la nature des biens ou des fonds menacés de poursuites. Il s'agit toutefois d'un critère malaisé à découvrir. Certains biens sont affectés à une activité de service public alors que d'autres ont une affectation privée. Dans le cas où l'Etat indique cette affectation, la situation est plus simple. En l'absence d'une telle précision, le principe demeure d'accorder l'immunité d'exécution à l'Etat étranger.' .

31
See Jean-François Poudret and Sébastien Besson, Droit comparé de l'arbitrage international, (Bruylant/LGDJ/Schultess) at p. 341, note 1089: celui qui fait valoir des conclusions reconventionnelles devant le juge renounce au benefice de la convention d'arbitrages pour celles-ci'.

32
Bernardo M. Cremades and David J.A. Cairns, La seguridad jurídica de las inversiones extranjeras: la protección contratual y de los tratados, op. cit.p. 151: 'El Laudo Lanco es significativo por su explicación de la naturaleza del consentimiento para arbitrar de un Estado Parte contenido en un Tratado Bilateral de Inversiones [TBI]. El consentimiento en el TBI es 'consentimiento por escrito' del Estado para arbitrar de acuerdo con el significado del Artículo 25 del convenio CIADI. Dicho consentimiento no es retirado ni anulado en modo alguno por la posterior ejecución de un contrato de concesión entre el Estado y un inversor particular, conteniendo una cláusula de resolución de controversias. Este aspecto del laudo reconoce y hace efectiva la distinción entre derechos derivados de un tratado y derechos contractuales.'

33
Procedural Order No. 2 (request for provisional measures) of 28 October 1999, Decision of the Tribunal on Objections to Jurisdiction of 25 January 2000, Award of 13 November 2000 in Case No. ARB/97/7: '[…] if one contracting party has conditioned its consent to arbitration on the exhaustion of local remedies, which the ICSID Convention allows, this requirement could not be bypassed by invoking the most favored nation clause in relation to a third-party agreement that does not contain this element since the stipulated condition reflects a fundamental rule of international law […]'.

34
An example of the principles adopted by the American Courts is Windward Agency, Inc. v. Cologne Life Reinsurance Co., 1997. The court denied the Defendant's request for the recognition that Plaintiff had waived its right to arbitrate as a result of the summary judgment proceeding: 'In this case, the Plaintiff has not been prejudiced by the Defendant's conduct. The parties have not engaged in extensive motion practice nor have they taken unfair advantage of discovery proceedings which would not have been available in arbitration. Summary judgment was sought, not on the merits of the plaintiff's breach of contract claim, but only as to threshold issues including whether, as a matter of law, the Plaintiff has standing to sue as a third party beneficiary of the contract.' (Available at Robert M. Hall, Waiver of Arbitration Rights. (www.robertmhall.com/articles/waivarbrights.html).

35
See footnote 21 above.

36
Art 1121 (relevant excerpts): 'Conditions Precedent to Submission of a Claim to Arbitration A disputing investor may submit a claim under article 1116 only if: a) the investor consents to arbitration in accordance wit the procedures set out in this Agreement; and b) the investor and, where the claim is for loss or damage to an interest in an enterprise of another Party that is a juridical person that the investor owns or controls directly or indirectly, the enterprise, waive their right to initiate or continue before any administrative tribunal or court under the law of any Party, or other dispute settlement procedures, any proceedings with respect to the measure of the disputing Party […] A disputing investor may submit a claim under Article 1117 to arbitration only if both the investor and the enterprise: a) consent to arbitration in accordance with the procedures set out in this Agreement; and waive their right to initiate or continue before any administrative tribunal or court under the law of any Party, or other dispute settlement procedures, any proceedings with respect to the measure of the disputing Party […] 3) A consent and waiver required by this Article shall be in writing, shall be delivered to the disputing Party and shall be included in the submission of a claim to arbitration. 4) Only where a disputing Party has deprived a disputing investor of control of an enterprise: a) waiver from the enterprise under paragraph 1(b) or 2(b) shall not be required; […]

37
ICSID Case No. ARB/98/2, Award of 2 June 2000.

38
Antonio Crivellaro, 'Consolidation of Arbitral and Court Proceedings in Investment Disputes' (in this publication, see Chapter 4 at p. 79).

39
Bernardo M. Cremades and David J.A. Cairns, 'La seguridad jurídica de las inversiones extranjeras: la protección contratual y de los tratados', in Revista de Arbitragem e Mediação, ano 1, No. 2, May/Aug. (2004), Editora RT at p. 136 'Estas estipulaciones son ambiguas en cuanto a si un inversor debe efectuar la elección o renunciar a ejercitar acciones ante tribunales nacionales, respecto a todas las reclamaciones resultantes con arreglo al tratado en particular o respecto a todas las reclamaciones referentes a la controversia sin tener en cuenta su fuente.[...] Respecto al TLCAN (NAFTA), este mismo asunto fue examinado en Waste Management Inc. C. Los Estados Unidos Mexicanos, donde el demandante argumentaba que la renuncia exigida por el TCLAN '... no aplica a cualquier procedimiento de resolución de disputas que involucre alegaciones que (México) haya violado las obligaciones impuestas por otras fuentes de ley, incluyendo las leyes de México...' El tribunal arbitral rechazó este argumento, estimando que '... cuando ambas acciones tengan su fundamento legal en las mismas medidas, entonces no podrían las dos continuar bajo el inminente riesgo de que pudiere obtener la parte reclamante un doble beneficio en la reparación de los daños. Esto último es precisamente lo que pretende evitar el Artículo 1121 TLCAN.'

40
James A. Ballentine, Ballentine's Law Dictionary. San Francisco, Bancroft-Whitney (1969) at p 1356. We have omitted the references to case law.

41
Estoppel: 'Unlässigkeit der Rechtsausübung, Hinderung, Hemmung, Präklusion, Ausschluß, Verwirkung. Generischer Terminus des angelsächsischen Rechtsbereiches, ohne Gegenstück im Zivilrecht. Estoppel ist eine prozessrechtliche Institution, deren Grundlage darin besteht, eine Partei davon auszuschließen, ihre Verhaltensfehler, Verfahrensfehler, Irrtümer, soweit rechtlich bedeutsam, im Prozeß geltend zu machen. Die römische Rechtsmaxime Nemo auditur propriam turtudinem suam allegans, drückt denselben Gedanken aus. Die Rechtsgründe für die Geltendmachung der Einrede des Estoppel, sind vielfältig. Eine Partei kann etwa nicht eine Aussage geltend machen, der sie zuvor widersprochen hat (estoppel by record) oder eine Handlung, zu deren Unterlassung sie sich vordem vertraglich verpflichtet hat, (estoppel by deed) oder eine Handlung, die einen Irrtum hervorgerufen hat (estoppel by conduct); noch kann sie Handlungen der Gegenpartei angreifen, welche sie zuvor stillschweigend geduldet hat (estoppel by negligence)'. WEST's Law and Commercial Dictionary in five languages: a - j St. Paul: West Pub. Co. (1988) Vol.1 at p. 559.

42
Association Henri Capitant / sous la direction de Gérard Cornu, Vocabulaire Juridique, Presses Universitaires de France (1987) at p. 356: 'Dans un procès, moyen de défense qui tend à faire déclarer l'adversaire irrecevable en sa demande, sans examen au fond, pour défaut de droit d'agir (tels le défaut de qualité ou d'intérêt la prescription, la chose jugée) et peut être invoqué en tout état de cause'.

43
Section 122 of the French Civil Procedure defines 'fin de non-recevoir' as follows: 'Tout moyen qui tend à faire déclarer l'adversaire irrecevable en sa demande, sans examen au fond, pour défaut de droit d'agir, tel le défaut de qualité, le défaut d'intérêt, la prescription, le délai préfix, la chose jugée .' The examples of fin de non recevoir are not limited to the ones set forth in such Section. A fin de non recevoir may also derive from the parties' convention, for instance.

44
Loïc Cadiet, 'La renonciation à se prévaloir des irrégularités de la procédure arbitrale' (available at www.kluwerarbitration.com): 'A quelle catégorie appartient la fin de non-recevoir tirée de la renonciation implicite du demandeur? J'aurais tendance à y voir une fin de non-recevoir d'intérêt privé, et non pas d'ordre public, mais une fin de non-recevoir tirée du défaut d'intérêt du demandeur qui n'a plus aucun avantage à attendre d'une irrégularité à laquelle il a antérieurement renoncé.'

45
See, in this regard, the comments of Hory, Alexandre to awards of the French Cour de cassation (2e Chambre. civile) 10 mars 1993 - Laiguède-qualités v. Société Ahsen Inox; Cour d'appel de Paris (1re Chambre Suppl.) 16 avril 1992 - Société Perma c. Sarl Maxime; cour d'appel de Paris (1re Chambre suppl.) 26 mai 1992 - Société Guyapêche c. société Export AB Frantz Witte : 'Il s'agit là d'une appréciation de l'étendue de la chose jugée attachée à la première sentence arbitrale. C'est au tribunal arbitral nouvellement saisi de statuer, le cas échéant, sur une fin de non-recevoir tirée de l'exception de chose jugée (art. 122 NCPC).'

46
De Plácido e Silva, updated by Slaibi Filho, Nagib and Carvalho, Gláucia, Vocabulário Jurídico (Editora Forense) at p. 1074, a traditional Brazilian Law Dictionary, defines preclusão: 'From the latin word praeclusio (close, conclude, impede), we understand the act of closing or impeding something to happen or to continue its course. It indicates the loss of a specific faculty in civil procedure due to: a) its non-use in the legal regime, b) the execution of an activity that is incompatible with its use; c) it having been previously used. [...] (our free translation)

47
Another example about the transposition of significance occurs in res judicata - 'In most jurisdictions, res judicata is not considered to be a principle of public policy, and it must be raised by a party, and therefore it can be waived by a party. In others jurisdictions (e.g. Germany), it may be raised ex officio by the court.' Audley Sheppard, 'Res judicata and estoppel' (in this publication, see Chapter 8 at p. 219).

48
Kahara Bodas, F.2d at 493. See also David Rivkin, 'The Impact of Parallel and Sucessive Proceedings on the Enforcement of Arbitral Awards' (in this publication, see Chapter 10 at p. 269)

49
For an example of application of equitable estoppel, see ICSID Arbitration - SGS Société Générale de Surveillance S.A. (Switzerland) v. Islamic Republic of Pakistan - 6 August 2003/ IntADR: 'Estoppel usually applies where a party has misrepresented the existence of facts and another party has acted upon this misrepresentation to its detriment. It does not apply where a claimant has used several remedies to pursue its rights.'

50
Bernard Hanotiau, 'Problems raised by complex arbitrations involving multiple contracts-parties-issues- An analysis, Journal of International Arbitration. Vol. 18, No. 3 (2001) at pp. 253-360. (available at www.kluwerarbitration.com)

51
See footnote note 32 above.

52
Available at www.kluwerarbitration.com

53
An example of the fork in the road provision is found in the French-Argentine Agreement on reciprocal promotion and protection of investments, which provides that '[…]: 'Once an investor has submitted the dispute to the courts of the Contracting Party concerned or to international arbitration, the choice of one or the other of these procedures is final.'(citation from Waste Management Inc. v. United Mexican States, which award is available at www.kluwerarbitratin.com) The Australian-Czech Investment Treaty is a contrast, as it envisages and does not try to prevent parallel proceedings. It 'provides for reference of disputes to international arbitration 'irrespective of whether any local remedies available pursuant to action under paragraph of this Article have already been pursued or exhausted, apparently implying that, at least so far as jurisdiction is concerned, the proceedings may be continued in parallel.'

54
Once the choice has been made, it becomes final and irreversible and the stipulation cannot be bypassed.

55
Antonio Crivellaro, 'Consolidation of Arbitral and Court Proceedings in Investment Disputes' (in this publication, see Chapter 4 at p. 79).

56
Bernardo M. Cremades and David. JA Cairns, 'El arbitraje en la encrucijada entre la globalización y sus detractores', in Revista de Directo Bancário, do Mercado de Capitais e da Arbitragem at p. 355 '[...] una elección irrevocable por parte de un inversor entre arbitraje internacional y tribunal nacional o bien una renuncia expresa a otros procedimientos de arreglo de diferencias como una condición precedente para acceder al arbitraje inversor-Estado [...]'.

57
Bernardo M. Cremades and David J.A. Cairns, 'Contract and Treaty Claims and Choice of Forum in Foreign Investment Dispute' ( in this publication, see Chapter 1 at p. 13).

58
'In the arbitration sphere, forum shopping an relate to the search for one or more seats an/or rules of arbitration (and their corresponding curial law) where multiple arbitration options exist based on privity or other grounds, where the parties have not specified a single seat and/or rules, where a basis for assertion of arbitral jurisdiction at another seat or under other rules may be present, or where a basis for assertion of arbitral jurisdiction notwithstanding a choice of forum may exist'. Richard H. Kreindler, 'Arbitral Forum Shopping' (in this publication, see Chapter 6 at p. 153).

59
Richard H. Kreindler, 'Arbitral Forum Shopping' (in this publication, see Chapter 6 at p. 153).

60
'In order to properly apply this principle a court or tribunal will have to establish first whether the seizure of that tribunal or a parallel tribunal is bona fides or just a pretext to evade obligations or frustrate other parties' legitimate jurisdictional rights'. Francisco O. Vicuña, Lis Pendens Arbitralis (in this publication, see chapter 7 at p. 207)

61
Marc Blessing. The New International Arbitration Law in Switzerland: A Significant Step Towards Liberalism (available at www.kluwerarbitration.com): 'Numerous arbitral awards have concluded that it constitutes a venire contra factum proprium to sign a contract containing an arbitration clause and, thereafter, to invoke sovereign immunity once a dispute has arisen.'

62
'In English law, cause of action estoppel and issue estoppel concern a cause of action or issue that has been considered by a court and finally determined. The courts further extended the estoppel doctrine to preclude a party in subsequent litigation from raising subject matter (a claim or an issue) which the party, by the exercise of due diligence, could and should have brought before the court in the earlier proceedings. This is referred to as the 'rule in Henderson v. Henderson' (1844, 6 QB 288). However, after the decision of the House of Lords in Johnson v. Gore Woods & Co (2000 2 AC 1), this doctrine is considered as a category of the 'abuse of process' doctrine, rather than an extension of the principles of estoppel. (…) In European Civil Law, likewise, there is no principle of abuse of process (although Civil procedural law may subscribe to a doctrine of 'abuse of rights).'. Audley Sheppard, 'Res judicata and estoppel' (in this publication, see Chapter 8 at p. 219).

63
Philippe Leboulanger, 'Multi-Contract Arbitration' (available at www.kluwerarbitration.com).

64
ICC Case No. 7314 of 1995,

65
For the application of the venire contra factum proprium principle and estoppel, see also Blessing Marc. The New International Arbitration Law in Switzerland: A Significant Step Towards Liberalism (available at www.kluwerarbitration.com): 'a party may be estopped from invoking lack of compliance with Art. II (2) if such defense contradicts the requirement of acting in good faith. In any case, since Chapter Twelve does not require an 'exchange', the way is paved for the arbitral tribunal to affirm the validity of an arbitration agreement, even in the absence of an exchange of documents, where a mutual consensus has to be affirmed regarding the settling of disputes by arbitration; in such situations the arbitral tribunal may find a respective plea to constitute an abuse of rights or a venire contra factum proprium. Under the specific circumstances, therefore an offer (containing an arbitration clause), tacitly approved (in particular: tacitly and conclusively approved by executing such order or by otherwise performing under the contract, without particular objection voiced against the arbitration clause) should be regarded as a valid arbitration agreement.'