1. INTRODUCTION

The title chosen by the organizers for this presentation is revealing of the uncertainties and complexities of the topic.

To begin, the expression ‘mass claims’ is not a term of art. 1 The term ‘mass’ is used, alongside others — such as group, collective, aggregate, large-scale, multiparty, multiple and representative — to refer generally to proceedings with a plurality of claimants. Each term emphasizes different features and aspects of the types of claim and proceedings falling under the broad category that encompasses a wide spectrum of types of proceedings with considerably different features. 2

The general and perhaps most neutral term ‘collective’ proceedings will be used here to refer to all types of proceedings with a plurality of claimants.

As to the other expression in the title of this presentation, which refers to the ‘representative aspects’ of what we have decided to call collective claims, the term ‘representative’ is most often associated with class actionlike proceedings. That type of proceeding is usually not considered possible in ICSID or investor-State arbitration in general, or for that matter even in commercial arbitration, except in the United States. This is because class actions pose complex problems in the identification of the proper parties to the arbitration, or in other words in the identification and definition of the class of plaintiffs, which largely have to do with the issue of consent3 . It is generally felt that proceedings of this type require specific rules which, at least in the current phase, are not available for investor-State arbitration. 4

There would therefore seem to be little scope to speak about ‘representative aspects’ of collective proceedings in investor-State arbitration. Nonetheless, as discussed below, at least in certain cases also investor-State proceedings may have a representative component. As was recognized in Abaclat 5, at least in some cases collective proceedings in investment arbitration can raise certain issues akin to those of proper representative actions.

The subject of collective proceedings in investment arbitration is still fluid. There are no rules regarding these types of proceedings in the ICSID Convention or in the BITs or in the ICSID Rules which either permit or forbid or in any other way govern them. The case-law is still quite scarce and there are even fewer accepted principles. The relatively few investor-State awards in what can be classified as collective proceedings6dealt with cases with significant differences, both in terms of the number of claimants (ranging from a handful or less to the initially 180,000 in Abaclat) and of the relations between the claimants (for instance, in Antoine Goetz and others v Burundi the claimants were all Belgian shareholders of the same Burundian company, while in Alasdair Ross Anderson and others v Costa Rica and in Erhas v Turkmenistan they were unrelated respectively Canadian and Turkish nationals).

This piece will touch briefly upon a few of the problems which arise in connection with these proceedings, and in particular those relating to the possibility of bringing multiple claims within the same proceedings and those relating to the conduct and management of the proceedings. The aim is only to provide a preliminary overview of these problems and of the solutions that have been considered by the case law.

2. THE CONDITIONS FOR BRINGING MULTIPLE CLAIMS IN THE SAME PROCEEDINGS

The crucial threshold question that presents itself in relation to collective proceedings is that of whether, and under what conditions, an aggregation of claims in a single set of proceedings is possible.

As indicated above, the ICSID Convention, BITs and the ICSID Rules provide no guidance. 7Although it does not deal directly with collective proceedings, the NAFTA contains a provision (Article 11268) permitting consolidation in certain circumstances, which could be of assistance in some cases. Provisions on consolidation are also found in other investment treaties9and in the chapters on investment protection of the economic and trade treaties currently being negotiated by the European Union with some of its trade partners. 10

In principle, guidance could be sought in domestic civil procedure, which in all legal systems contains a wealth of rules on multiparty proceedings. However, as with many aspects of investor-State proceedings, there is not much that one can borrow from national civil procedure because of the differences between court litigation and arbitration, in particular investor- State arbitration, and because even the rules of domestic laws on this type of issue may differ considerably across legal systems. This was emphasized by the Ambiente Ufficio tribunal which "caution[ed] against importing domestic standards in this respect and [recalled] that the decision on jurisdiction within the ICSID framework is a question to be answered on the basis of international law". 11

Not even the rules on multiparty proceedings applicable to commercial arbitration offer any meaningful guidance, largely because of the different way in which consent operates in commercial and in investment arbitration. The question must therefore be addressed having regard to the specific features of investor-State arbitration.

The discussion on this topic often starts from a consideration of the reasons for aggregating in the same proceedings the claims of a plurality of claimants. There is no doubt that in many cases such an aggregation can be justified on grounds of efficiency, consistency of outcomes, cost saving and, more significantly, access to justice. The cogency of each one of these justifications will of course vary depending on the circumstances, such as the nature of the individual claimants and of their claims, the similarities, differences and relations between them, the aggregate amounts involved and those of the individual claims and so on, and must be assessed on a case-by-case basis. For instance, the argument of access to justice is likely to be more compelling in situations such as the Argentine bondholder cases where, given the amounts of the individual claims, most of the claimants would not have been in a position to bring claims on their own, than in cases where there the claimants are sophisticated investors and the amounts at stake are high.

The link between permitting collective proceedings and access to justice in a broad sense was recognized by the Abaclat tribunal, which held that:

[…] it appears that all these various forms of collective proceedings share a common ‘raison d‘être’: collective proceedings emerged where they constituted the only way to ensure an effective remedy in protection of a substantive right provided by contract or law; in other words, collective proceedings were seen as necessary, where the absence of such mechanism would de facto have resulted in depriving the claimants of their substantive rights due to the lack of appropriate mechanism. 12

The existence of a sound justification for aggregating multiple claims is obviously not of itself a sufficient ground for allowing the claims to be brought together. 13It is therefore necessary to identify an adequate legal parameter.

As in all matters relating to arbitration, the starting point has to be the consent of the parties. Obviously, an agreement to permit or exclude the participation of multiple claimants in the same arbitral proceedings would be dispositive of the issue. The problem is that seldom, if ever, is there any clear indication as to an intention of the parties, and in particular of the State, on this point. The consequence is that one has to resort to attempts at interpreting the meaning of the parties’ agreement. When the agreement consists of a treaty, as is very often the case, recourse has to be had to the rules of interpretation of the Vienna Convention on the Law of Treaties. 14

Textual arguments will rarely be of assistance. In particular, it is difficult to draw any meaningful conclusion on this point in either direction from the use of the singular or the plural (for instance ‘investor’ as opposed to ‘investors’) in the relevant treaty or arbitration clause15. In Ambiente Ufficio the majority pointed to the travaux préparatoires of the ICSID Convention, which contained traces of an inconclusive discussion on multiparty proceedings, to dispute Argentina’s contention that such proceedings were "way beyond ‘the horizon of foreseeability’ of the drafters of the ICSID Convention." 16

Given the absence of specific indications as to the parties’ intentions, there may be a temptation to rely more or less openly on assumptions or presumptions as to those intentions. Such an approach is not unusual in arbitration, particularly commercial arbitration where it is resorted to when specific considerations weigh in favor of broadening the personal or subject-matter scope of arbitration agreements. A typical example of this is the evolution that has occurred in relation to the subject matter of arbitration in commercial arbitration, which now are generally interpreted as encompassing all disputes arising in connection with the contractual relationship for which arbitration is stipulated, including non-contractual aspects. One of the reasons usually put forward in that regard is that the parties are assumed to have opted for a rational solution that allows the bringing of all related claims together, avoiding the complexities inherent in the need to parse the different types of issues that may or may not be subject to the jurisdiction of the arbitrators. A similar, although somewhat more controversial and complex, evolution occurs with regard to the extension of arbitration agreements to non-signatories in commercial arbitration. As is well known, in these situations there is a tendency to rely on different, mostly contract law, techniques to bring non-signatories within the scope of the agreement to arbitrate, which has spurred an interesting debate on the role of consent in arbitration17. Although this debate may take on different connotations in relation to commercial and to investment arbitration, since the consent of States may raise greater concerns, there is one difference between the two that could militate in favor of a less strict interpretation of the number of addressees of the offer to arbitrate that can be permitted to bring claims jointly. This is the fact that, while in commercial arbitration, the parties to the arbitration agreement are, at least in principle, identified or identifiable from the beginning, in investment arbitration the offer to arbitrate is very broad and directed to an undetermined number of potential parties.

The issue of consent to the bringing of single proceedings by a plurality of claimants arises in respect of both the number and the type of claims that can be brought together, although the two aspects are in several ways related.

The question of the number of the claims that can be brought together, which was touched upon in several earlier awards, 18was addressed particularly in the three Argentine bondholder cases. The Abaclat and Ambiente Ufficio majorities held that specific consent was not required for the "mass aspect" of the cases before them. Abaclat held that

Assuming that the Tribunal has jurisdiction over the claims of several individual Claimants, it is difficult to conceive why and how the Tribunal could lose such jurisdiction where the number of Claimants outgrows a certain threshold. First of all, what is the relevant threshold? And, second, can the Tribunal really ‘lose’ a jurisdiction it has when looking at Claimants individually? 19

This reasoning was buttressed with a further argument based on the nature of the investment at issue:

In addition, the collective nature of the present proceeding derives primarily from the nature of the investment made. The ICSID Convention aims at promoting and protecting investments, without however further defining the concept of investment and leaving this task to the parties through relevant instruments such as BITs (see §§ 257 and 362 et seq. above). Thus, where the BIT covers investments, such as bonds, which are susceptible of involving in the context of the same investment a high number of investors, and where such investments require a collective relief in order to provide effective protection to such investment, it would be contrary to the purpose of the BIT and to the spirit of ICSID, to require in addition to the consent to ICSID arbitration in general, a supplementary express consent to the form of such arbitration. In such cases, consent to ICSID arbitration must be considered to cover the form of arbitration necessary to give efficient protection and remedy to the investors and their investments, including arbitration in the form of collective proceedings. 20

The sum of these two arguments led the Abaclat majority to conclude that the mass aspect of the proceedings did not relate to consent, but to the modalities and implementation of the ICSID proceedings, given the need to ensure that the proceedings could be carried out respecting due process requirements despite the number of claimants. This meant that the issue was not one of jurisdiction but rather one of admissibility. As one author has noted, the implication of the Abaclat majority’s position is that mass claims are not fundamentally incompatible with investor-State arbitration, but more simply a possible consequence of the general and abstract nature of the type of consent contained in investment treaties. 21

The Ambiente Ufficio majority came to the same conclusion having analyzed a number of other cases involving multiple claimants, where the issue had not been fully debated. It held that

it is evident that multi-party arbitration is a generally accepted practice in ICSID arbitration, and in the arbitral practice beyond that, and that the institution of multi-party proceedings therefore does not require on the part of the respondent Government beyond the general requirements of consent to arbitration22

and that

nothing […] militate […] in favour of interpreting the ‘silence’ of the ICSID Convention as standing in the way of instituting multi-party proceedings. Quite to the contrary, not only are multi-party arbitrations not excluded by the pertinent provisions of ICSID law, but they are perfectly compatible with them. 23

Exactly like Abaclat, Ambiente Ufficio concluded that the ICSID Convention, the relevant BIT and the other applicable rules were not opposed to a plurality of claimants jointly submitting an ICSID claim and do not require "specific or additional consent" on the part of the State beyond the one required under Article 25(1) of the ICSID Convention. 24

This issue was apparently decided in the opposite direction by the majority in Erhas v Turkmenistan25which seems to have held that specific consent by the State to collective adjudication could not be inferred without more and that it therefore lacked jurisdiction. One may wonder whether this conclusion was not in part influenced by the lack of commonality between the claims, since the case involved disparate "entirely unrelated claims" advanced by unrelated claimants, which is what ultimately led the dissenting arbitrator to hold that, although the tribunal had jurisdiction, the claims were inadmissible.

The need for a special, or secondary, consent for collective actions, which is not covered by a mere acceptance to arbitrate, is postulated by Professor Abi-Saab in his vigorous dissent in Abaclat. 26

Giovanni Alemanni addressed the issue rather differently. Like its two companion awards, it reasoned that there is no basis for implying into the text of Article 25(1) of the ICSID Convention ("dispute arising directly out of an investment, between a Contracting State … and a national of another Contracting State") the qualification "one, but only one, national of another Contracting State", which would imply some form of special consent on account of the collective nature of the claims. 27However, Giovanni Alemanni parted ways with its sister awards because it added a further level of analysis. It noted for a start that arbitration with a multiplicity of parties is possible in three situations, 28i.e. when it is specifically provided for in the applicable rules (for instance Article 1226 of NAFTA), when it is specifically agreed to in relation to the given situation, as was in its view the case in several of the ICSID cases with multiple claimants, and in a third, intermediary, category of situation (which was the one at hand) where the instrument setting up the arbitration or establishing the State’s consent can be properly interpreted on the facts of the case as covering a multiplicity of claimants within the consent.

In the tribunal’s view this required an analysis of the provision providing for arbitration of the relevant BIT (Article 8 of the Argentina-Italy BIT), which makes reference to a "dispute relating to investments". From this the Tribunal derived the conclusion that, whether there is one or more than one investor, there must be "a dispute," which it considered to be the element that most satisfactorily defines the link that must exist between a group of claimants and their claims in order for them to be heard together, in the absence of specific consent by the State. 29Giovanni Alemanni held that the relevant treaty clauses

provide for a mechanism for the settlement of individual disputes; they do not (absent either special agreement to that effect or joinder) provide a mechanism for the joint settlement of a collection of separate disputes. This does not however mean that the concept of ‘dispute’ has to be given a narrow or over-technical meaning. The Tribunal has already indicated that it is perfectly possible, in its opinion, for a ‘dispute’ to have more than one party on the claimant’s side. But the interest represented on each side of a dispute has to be in all essential respects identical for all those involved on that side of the dispute. 30

On this premise the Alemanni tribunal concluded that the necessary analysis into whether

the actual rights of all of the Claimants [...] and whether the actual effect […] on those rights (or associated expectations) of Argentina’s conduct were sufficiently the same as to amount to a single ‘dispute’ over Argentina’s obligations under the BIT, even within the broad and non-technical understanding of a ‘dispute’ that is appropriate to Article 8 of the BIT read in conjunction with Article 25 of the ICSID Convention

could only be conducted in light of a close analysis of the facts of the individual claims, which related to Argentine public bonds under different issues, with different maturities, governing laws, currencies, interest rates. This led the tribunal to join this issue to the merits. 31

The conclusion that can be drawn from investment jurisprudence is therefore that there is no obstacle of principle to multiple claimants bringing the same arbitration, unless there is an explicit exclusion of this possibility in the relevant instruments. 32The debate thus shifts to the relation that must exist between the different claimants and their claims in order for them to be aggregated in a single proceeding. It is in fact intuitive that, if claims are to be brought together, there must be some form of homogeneity between them. 33

This position was clearly expressed by the Ambiente Ufficio majority which held that it "would […] have its doubts whether completely unrelated claims could be brought by a plurality of persons in one and the same arbitral proceeding." 34The Abaclat majority, which considered the question from the angle of the "preconditions for group treatment" 35and viewed it as one of admissibility, held that "group examination of claims is acceptable where claims raised by a multitude of claimants are to be considered identical or at least sufficiently homogeneous." 36In assessing homogeneity, Abaclat had regard to the claims arising under the Italy-Argentina BIT and not to the contractual claims of the individual claimants under the respective loan instruments they were claiming under. Using the adjective ‘homogenous’ four times in the same sentence, it held that

the only relevant question is whether the Claimants have homogenous rights of compensation for homogenous damage caused to them by the potential homogenous breaches by Argentina of homogenous obligations provided for in the BIT. 37

Abaclat held that in the case at hand the rights deriving from the bondholders’ investments and Argentina’s obligation to protect them were the same, the events leading to the alleged disregard of the rights and obligations were the same and the legislative acts of Argentina and their implementation were the same, as was the potential damage caused by them to the claimants. It therefore decided that the claims were "sufficiently homogenous to justify a simplification of the examination method and procedure". 38

This approach was criticized in Prof Abi-Saab’s extensively reasoned dissent which noted that

homogeneity is in the eyes of the beholder. One can always reach a sufficient degree of homogeneity, i.e. common denominators, by climbing up the ladder of abstraction and/or by weeding out all the specificities of the claims that appear inconvenient. And that is precisely what the majority award does with the claims under consideration. 39

The Ambiente Ufficio tribunal declined to consider in abstracto the question of the required links between the different claims, and specifically whether it is required that the claims be ‘homogenous’ or it suffices that they be ‘sufficiently comparable,’ 40but came to the same conclusion as Abaclat.

As noted above, the majority of the Giovanni Alemanni tribunal was skeptical of the approach of the other two tribunals and preferred to rely on the element of ‘dispute’. Unfortunately, the Giovanni Alemanni tribunal was not given the opportunity to carry out its analysis from this angle because the case never reached the merits phase. It would have been interesting to see whether its ‘dispute’ test — which would have required it to decide whether the factual and legal peculiarities of each claim, such as the timing and circumstances of each claimant’s acquisition of its investment and the specificities of the individual loan instruments, were sufficiently similar to permit the conclusion that all were part of the same dispute — would have led to a different outcome to that of Abaclat and Ambiente Ufficio.

It seems that not even Giovanni Alemanni’s ‘dispute’ criterion is of itself capable of overcoming all the questions that can arise when it comes to assessing the nature and the intensity of the link between the different claims that is required to allow their aggregation in a single proceeding. Here one can only list some of the questions that can arise in this connection. For a start, is it necessary that all the claims arise from the same allegedly illegal measure of the host State? This in turn leads to other questions. For example, in what sense can a measure affecting one investor be considered the ‘same one’ as a measure that affects another investor? Does it have to be exactly the same measure? Or can measures sharing some common features qualify as well? For example, expropriatory measures with similar characteristics (for example targeting different assets, but of the same kind, say two or more oil concessions) arising from distinct, but in some way similar, administrative measures of the host State. Another example could be measures of the same type, but enacted at different times, such as a reiteration or an extension of the same law, or measures that target the same investment.

It is probably also reasonable to require some type of link or commonality of position between the individual claimants seeking to bring a collective claim, but here too there may be doubts as to what that should be. Does there have to be a legal relation of some kind between the different claimants, such as for instance the one between shareholders of the same company or companies of the same group or members of the same family? Must they have made the same investment? Should the claims share a common legal basis or cause of action, or can claims with different causes of action (for example one claim for expropriation and one for breach of the FET standard) or different requests for relief be brought together?

Another delicate question is whether claims arising from different investment protection agreements can be brought together. The issue was considered in Guaracachi America and Rurelec v Bolivia where the tribunal held that the submission by two claimants of identical claims based on the alleged violation of two different BITs (US-Bolivia BIT and UK-Bolivia BIT) "is not subject to the qualified express consent of the Respondent". 41The tribunal reasoned as follows:

The offers of arbitration contained in the BITs were not subject to any condition or limitation in their scope that would prevent the two Claimants from submitting a single, joint arbitration case against the Respondent. Nor were they subject to any condition that claimants in arbitration proceedings must ground their claims in just one BIT. Each of the Claimants accepted the offer of arbitration in the precise terms in which it was given by the Respondent, notably, providing consent by the Respondent that disputes over the application of the Treaties were to be settled by recourse to arbitration.

One cannot therefore interpret the Treaties — using the well-known rules of treaty interpretation of Article 31 of the VCLT — as if they contained some limitation of scope preventing a claimant from submitting an arbitral claim together with another claimant when both claims are based on the same alleged facts and on the same alleged breaches although brought under different BITs, provided that each claimant provides its own independent matching consent to arbitration. 42

This issue arose also in the pending PCA cases against the Czech Republic relating to the measures enacted by that State which reduced the incentives allegedly promised to the investors as an inducement to invest in the renewables energy sector. In that case ten investors began an arbitration seeking compensation for the harm inflicted to their investments as a consequence of the host State’s measures in violation of the Energy Charter Treaty and five different BITs (with Germany, Cyprus, United Kingdom, the Netherlands and Luxembourg). 43The case was brought as a single UNCITRAL arbitration, but the Czech Republic responded by appointing different arbitrators, maintaining that the claims had to be decided in six different arbitration, four or which by different tribunals with the same composition on condition that the Claimants would not seek consolidation. The Claimants considered that such a move, which they considered purely tactical and aimed at increasing the procedural hurdles for them, was impermissible, as the Respondent should have appointed only one arbitrator and then subsequently contested the jurisdiction of the arbitral tribunal to hear all the claims together. This is, the position that would have been taken under most arbitration rules, and in particular the ICC Rules (Article 6). The investors accordingly asked the PCA to appoint a single arbitrator on the grounds that the Czech Republic had failed to do so as it should have, but the PCA very questionably washed its hands of the matter. The upshot is that the claims are now being prosecuted in separate parallel arbitrations and the issue of whether the claims could have been brought together was completely sidestepped and could not be subject to a proper adjudication. 44

The appointment by the State of different arbitrators, which would signal its lack of consent to the aggregation of the proceedings, is obviously not relevant to the decision as to whether such an aggregation is admissible. It is of course permissible for the State to give its consent to the aggregation once the claims are brought, if such consent is clearly lacking or is in doubt (as may have been the case in some of the earlier cases). However, since as shown above a specific consent by the State to the aggregation of proceedings is not required, the satisfaction of the conditions for the aggregation has to be assessed regardless of the State’s position on consent at the time when the claims are brought.

Added to all the issues sketched above is the further, procedural, problem, of whether the decision on the aggregation of the claims can be taken in a preliminary phase on jurisdiction or admissibility, as was held in the majority of the decided cases, notably in Abaclat, Ambiente Ufficio and Guaracachi, or whether it has to be deferred to the merits phase, as held by Giovanni Alemanni, which of course from a practical point of view can be quite unsatisfactory.

3. THE CONDUCT AND MANAGEMENT OF THE PROCEEDINGS

The second broad set of issues that arises in connection with proceedings involving a plurality of claimants relates to more practical issues related to the commencement, conduct and management of the proceedings.

At the commencement of the proceedings the problems can relate to the constitution of the group of claimants and to ensuring that consent to arbitration on the claimants’ side is properly obtained and documented, to the instruction of counsel and to the determination of the method for such instructions and of governing the proceedings. The problems may be different if, in purely practical terms, the initiative of the arbitration comes directly from the claimants or if, instead, it comes from a third party, usually a third party funder. This was the case in all three Argentine bondholder cases, but with some differences between them. In the two smaller cases the entity behind the bringing of the proceedings was a pure third party funder. In Abaclat the promoting entity, the Task Force Argentina, an entity sponsored and funded by the Italian banks that had sold the defaulted bonds to the claimants, had a more direct interest, in that it agreed to fund the proceedings only for those claimants who expressly waived any claims against the banks who had sold the bonds. 45

In this connection there arise practical problems of documentation, powers of attorney to counsel and mandate to the entity that organizes the proceedings. In the bondholder cases, Argentina even raised issues relating to the law governing the relations between the claimants and their counsel, arguing that they had to conform with domestic law. Ambiente Ufficio and Giovanni Alemanni rightly disposed of the problem on the basis that national law has no role to play in these aspects of ICSID proceedings. 46

The presence of a plurality of claimants poses the problem of how to maintain the unity of strategy, of the degree of control that each individual claimant can maintain over the conduct of the proceedings and of the proper level of information of the claimants. The entity that directs the proceedings, where there is one, will inevitably have a crucial role and the rules governing this function can be equally crucial. The notion itself of collective proceedings is at odds with the ability for each claimant to have its say and to make its own decisions and adopt its own strategy. It is in this respect that collective proceedings take on an element of representative proceedings, as was noted in Abaclat, where the tribunal held that

[…] one cannot ignore that some features of the present proceedings, in particular the way it is conducted, resemble representative actions: Although Claimants made the individual and conscious choice of participating to the arbitration, their participation is thereafter limited to a passive participation in the sense that a third party, TFA, represents their interests and makes on their behalf all the decisions relating to the conduct of the proceedings. The high number of Claimants further makes it impossible for the representative to take into account individual interests of individual Claimants, and rather limits the proceedings to the defense of interests common to the entire group of Claimants.

In summary, the present proceedings seem to be a sort of a hybrid kind of collective proceedings, in the sense that it starts as aggregate proceedings, but then continues with features similar to representative proceedings due to the high number of Claimants involved (emphasis added). 47

However, the absence of overarching rules governing this representative aspect, which unlike in true representative proceedings, is left to the contractual relations between the claimants, can make this difficult. What if there are differences between different claimants as to the conduct of the proceedings? What if some claimants want to change counsel and there is a difference of opinion between the different groups of counsel? What if counsel is subject to different rules?

A related, and perhaps even more complex, problem is due process, since collective proceedings may entail changes and adaptations to procedural mechanisms that could be held to entail a compression of due process rights of the parties. This issue has to be considered from the perspective of both the claimants and the respondent State.

The point was heavily debated in the Argentine bondholder cases in relation to the proposed adoption of special mechanisms could be adopted for the assessment of the evidence. 48The Abaclat tribunal reasoned that

[…] it is understood that adaptations made to the standard procedure must be done in consideration of the general principle of due process and must seek a balance between procedural rights and interests of each party. 49

Considering the question both from the perspective of the respondent State and of the claimants, the Abaclat tribunal asked itself

(ii) to what extent are Argentina’s defense rights affected in comparison to 60,000 separate proceedings; and (iii) is it admissible to deprive Claimants of certain procedural rights, such as provided for under the TFA Mandate Package?50

The Abaclat majority weighted both parties’ interests and found the balance to be in favor of adaptations to the procedure in the interests of both parties, and of just and fair settlement. As to the effects on Argentina’s defense rights it held that

(ii) Effects on Argentina’s defense rights: It appears that the effect of such examination method and procedure on Argentina’s defense rights is limited and relative. Whilst it is true that Argentina may not be able to enter into full length and detail into the individual circumstances of each Claimant, it is not certain that such approach is at all necessary to protect Argentina’s procedural rights in the light of the homogeneity of Claimants’ claims. In addition, the only alternative would be to conduct 60,000 separate proceedings. The measures that Argentina would need to take to face 60,000 proceedings would be a much bigger challenge to Argentina’s effective defense rights than a mere limitation of its right to individual treatment of homogeneous claims in the present proceedings. 51

Considering the matter from the perspective of the claimants, the Abaclat majority in essence held that, by initiating a mass claim, they had waived certain of their due process rights:

It is undeniable that the TFA Mandate Package has the effect to depriving Claimants of a substantial part of their procedural rights, such as the decision on how to conduct the proceedings, the right to instruct the lawyers, etc. However, as mentioned above (see §§ 457-465), the setting of strict boundaries in relation to Claimants’ procedural rights has been consciously accepted by Claimants in order to benefit from the collective treatment of their claims before an ICSID tribunal. In addition, the Tribunal did not find that such agreement was affected by any vice which would render it invalid. Consequently, the Tribunal sees no reason to disregard — as a matter of principle — Claimants’ conscious choice. 52

Prof. Abi-Saab dissented also on this point on the grounds that

i) Justifying the abridgement and curtailment of the procedural rights of the Respondent, particularly as concerns the individual examination of claims (and claimants) by the argument that the mass claims in question are sufficiently homogeneous, does not stand scrutiny […].

This is because it is an absolute due process right of a respondent in a judicial or arbitral proceeding, to have every element of the claim or claims presented against him, examined by the tribunal, through adversarial debate that affords him full opportunity to contest and refute these elements one by one, if he can […].

[…] although these mass-claims can be considered as arising ‘out of the same fact pattern,’ and thus share some common features (whence a degree of homogeneity), they are not identical and preserve some individualized features that distinguish them from one another. To the extent that the individual claims in the mass differ from each other, it is the absolute due process right of the defense, and the obligation of the Tribunal, to have them examined individually and adversarially by the Tribunal. The Tribunal has also to address and pass judgment on each of them and state the reasons on which it bases its judgment (Article 48/3 of the ICSID Convention). Failure to meet these requirements is a cause of annulment under the ICSID Convention (Art. 52/d).

A ‘group examination’ of mass claims that feature certain individual differences among themselves, can at best deliver rough or approximate justice. It may satisfy the due process requirements of an emergency mass claims program or an administrative compensation commission. But it definitely falls well below the stringent due process standard of judicial or arbitral proceedings. 53

In Corn Products International v Mexico54the issue of due process was raised by the claimants, rather than by the State as occurred in the Argentine cases. In that case the claimants opposed consolidation under NAFTA Article 1126 by which they claimed they would have been prejudiced since, being "direct and fierce competitors," they would have been prevented from adequately presenting their cases with the attendant compression of their due process rights. The claimants’ objection to consolidation was upheld by the arbitral tribunal.

In addition to the question of whether, in principle, recourse to special procedural mechanisms for the assessment of the evidence is admissible, there is the more practical question of which procedural mechanisms and case management techniques can be resorted to in practice. There is of course a variety of possible solutions. The only precedent for the moment is once again Abaclat where initially recourse to a ‘sampling procedure’ was contemplated. Faced with the parties’ objection that such a procedure could jeopardize their rights to address all circumstances surrounding the investment of each claimant, the tribunal decided to examine each single document by appointing an expert and setting up a ‘Database Verification process’ with the following reasoning:

At this stage, the aim of the Database Verification is to verify the information available with regard to facts of nationality/incorporation, residence and date of purchase of the security entitlements, which are relevant to determine the Arbitral Tribunal’s jurisdiction over the case (para 501(iii) of the Decision). While this process will allow to spot inconsistencies and irregularities in the information and documents submitted (such as inconsistencies in signatures), if any, it will be the Arbitral Tribunal’s task to determine how to deal with such inconsistencies and irregularities, if any. The purpose of the Database Verification is not to proceed with an overall analysis of the circumstances surrounding the Claimants’ consent or the validity of the documents on which such consent is based. This is and will remain the task of the Arbitral Tribunal. It, therefore, only constitutes a starting point for the Arbitral Tribunal to decide to what extent an individualized review of claims or documents will be necessary and how to best address such review. Therefore, Respondent’s objections as to the necessity to review surrounding circumstances and the validity of the documentation submitted are inapposite and miss the point. 55

It is in principle conceivable to adopt other techniques to deal with a plurality of claims, in particular ones borrowed from class actions, such as so-called pilot or bell-weather proceedings and simplified evidentiary rules, but their applicability in investment arbitration remains to be assessed. More broadly the question is how to identify and manage the issues that can be treated collectively and those that call for a specific treatment for each individual claimant.

Among the host of other potential problems, mention can be made of those that would arise in the event of a counterclaim by the respondent State and of a cost award in its favor. To mention only the most obvious ones, these include the apportionment of the liabilities among the different claimants and the existence of joint and several liabilities. At the moment there no clear responses, but these problems certainly loom in the background and will emerge if this type of proceedings will have a future.

4. CONCLUSIONS

The above discussion has merely scratched the surface of the issues related to whether and when the claims of multiple claimants can be aggregated in a single arbitration. The simple conclusion that can be drawn at this stage is that there are very few, if any, principles and that there are even fewer answers to the myriad problems that can arise in this connection.

Perhaps the only point as to which there is sufficient consensus is that there is no obstacle of principle to the aggregation of claims. There is of course also agreement that such aggregation is subject to the consent of the parties and it seems generally, albeit not unanimously, accepted that consent to aggregation does not have to be explicitly given. The discussion thus tends to focus not so much on the number of claims that can be brought together, but on the type of link that must exist between the different claims for their aggregation in a single proceeding to be possible. Beyond this, there is not much certainty. While at first sight providing a useful tool, the criterion proposed by the Giovanni Alemanni tribunal, which relies on the existence of a single ‘dispute,’ probably does not provide clear-cut solutions capable of eliminating uncertainties. 56In order to decide whether the claims of multiple claimants form part of a single dispute that can be brought in a single arbitration, it will always be necessary to analyze the relations existing between the claims and the claimants. The outcome will thus be very fact-specific and will depend to a considerable extent on the appreciation of the arbitrators.

The introduction of special rules in the ICSID Convention on the consolidation of claims has been proposed. 57Insofar as such rules were to mirror the one of NAFTA Article 1126 or the ones foreseen in the investment protection chapters of the agreements being negotiated by the European Union with its partners, they are unlikely to improve the situation dramatically by removing uncertainty and discretion. For instance, under NAFTA Article 1126 consolidation would require a decision on whether the case presents questions of law or fact in common. This would still leave it to the arbitrators to make the assessment on a case-by-case basis, 58and is little more than a variation of the assessment of the homogeneity and commonality of claims in terms of which the issue has been framed so far. In any event a provision on consolidation would certainly not of itself do away with the need to balance the interests of the parties, the need to safeguard due process and so on. The situation would therefore not be significantly different from the one prevailing today, which ultimately rests largely on consent. 59

The aggregation of claims might be facilitated if the arbitration is brought under rules such as the ICC Rules, which are an option available to the investor under a significant number of investment protection instruments. Article 10 of the ICC Rules which provides for the possibility of consolidation, in particular when all the claims are made under the same arbitration agreement, might lend itself to some creative thinking, but it would be illusory to expect it to eliminate all problems.

There thus remains a considerable tension between the specificities of arbitration, with its bedrock in consent60, and of investment arbitration in particular, and the possibility of bringing together the claims of a large number of claimants. It remains to be seen whether the decisions of future arbitral tribunals will be more or less overtly influenced by policy considerations of some type, foremost among which access to justice, which can militate in favor of allowing the bringing of collective actions by large numbers of potential claimants who would not have the ability and the resources to prosecute their claims individually. In the case of violations by States, investment arbitration is the only dispute settlement mechanism capable of ensuring a fair treatment of the claims. In this respect, the situation is different from commercial arbitration, where also there is an increasing focus on attempting to make some form of collective arbitration possible (for example for antitrust follow-on claims), but where the plaintiffs have an alternative to arbitration (and possibly a much more effective one). It is true that, as indicated by some tribunals, 61policy considerations should not hold much sway in this discussion. Nevertheless, in the absence of clear indications in the applicable rules, such considerations may creep into the reasoning of arbitral tribunals. 62Given the present turmoil regarding investor-State arbitration and the risk of a backlash against it, it is advisable that arbitrators exercise restraint in pushing the boundaries of jurisdiction over States. 63

1
See V. Heiskanen, Mass Claims in ICSID Arbitration, in M. N. Kinnear, G. R. Fischer, et al. (eds), Building International Investment Law: The First 50 Years of ICSID, Kluwer Law International, 2015, p. 613-614 explaining that there is no agreed legal definition of "international mass claims" and that, as a technical term, "mass claims refers to a level of numerosity in which statistical methods become available in claims proceedings". Contra, H. van Houtte and B. McAsey, Abaclat and Others v Argentine Republic — ICSID, the BIT and Mass Claims, in ICSID Review, vol. 27 n. 2, 2012, p. 231-232, according to whom "Abaclat is not a ‘mass claims’ process in the traditional sense". See also the dissents of Prof. Abi-Saab in Abaclat and Others v The Argentine Republic, ICSID Case No. ARB/07/5, § 180, and Dr. Torres-Bernárdez in Ambiente Ufficio S.p.A. and Others v The Argentine Republic, ICSID Case No. ARB/08/9, § 99 holding that international "mass claims" proceedings are different from collective ones commenced by investors.

2
See S. I. Strong, Class, Mass and Collective Arbitration in National and International Law, Oxford University Press, 2013, § 1.12-1.36 who distinguishes three types of "large-scale" arbitral proceedings: class, mass and collective arbitrations. While class arbitration is a specific product of the U.S. experience with judicial class actions, the now famous Abaclat and Others v The Argentine Republic (the first investment arbitration commonly labelled as "mass proceedings") would be "a new form of large-scale arbitration unlike that which had evolved in the United States" (Id., § 1.30). As to the general term "collective arbitration", for S. I. Strong it "includes a variety of different large-scale procedures unified only by the fact that they are private (non-treaty based) mechanism that do not bear the hallmarks of U.S.-style class arbitration" (Id., § 1.31). An example of the latter would be the arbitral procedure to resolve shareholders’ disputes under the Supplementary Rules for Corporate Law Disputes of the German Institution of Arbitration ("DIS", according to the German acronym). In Abaclat v Argentina the tribunal recognized that "there is no uniform terminology concerning the various kinds of proceedings involving a high number of parties, and that various jurisdictions, courts and authors refer to different terms and meanings" (ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011, § 480). The tribunal decided to use the expression "mass proceedings" simply due to the high number of claimants involved, but without any elaboration on the "procedural classification of the present proceedings as a specific kind of collective proceedings recognized under any specific legal order" (Id., § 480). In the parallel Ambiente Ufficio S.p.A. and Others v The Argentine Republic, where the number of claimants (initially 120 which dwindled to about 90) was far less that in Abaclat (60,000 claimants down from an initial 180,000), the tribunal advised against the use of the concept of "mass claims" and "mass proceedings", "especially insofar as the use of the term ‘mass claim’ or ‘mass proceedings’ might convey the connotation that already the sheer number of claimants in itself calls for modifications or adaptations of the procedural arrangements to guarantee the manageability or fairness of the case" (ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility, 8 February 2013, § 120). To avoid a "terminological imbroglio", the tribunal preferred to qualify that action as a "multiparty" arbitration (Id., § 122). On terminology see also the third of the Argentine bondholder cases, Giovanni Alemanni and Others v The Argentine Republic, ICSID Case No. ARB/07/8, Decision on Jurisdiction and Admissibility, 17 November 2014, § 267.

3
On the problems of this type of arbitration see L. G. Radicati di Brozolo, Class Arbitration in Europe?, in A. Nuyts and N. E. Hatzimihail (eds.), Cross-Border Class Actions. The European Way, Sellier, 2014, p. 209 ff.

4
Specific institutional rules, such as the AAA Supplementary Rules and the JAMS Class Action Procedures, have developed in the U.S. to deal with "class arbitration". These provide for a "system" of partial final awards, subject to immediate court review, on whether the arbitration agreement permits class treatment (Rule 3 of the AAA Supplementary Rules and Rule 2 of the JAMS Class Action Procedures) and whether such treatment is appropriate under the circumstances, and therefore whether the class must be certified (Rules 4-5 of the AAA Supplementary Rules and Rule 3 of the JAMS Class Action Procedures). See S. I. Strong, supra fn 2, § 2.26-2.120.

5
See Abaclat, supra fn. 2, § 486-488: "Looking at the way the present arbitration was initiated, the present proceedings appear to be aggregate proceedings, in which each individual Claimant is aware of and consented to the ICSID arbitration. […] However, one cannot ignore that some features of the present proceedings, in particular the way it is conducted, resemble representative actions: Although Claimants made the individual and conscious choice of participating to the arbitration, their participation is thereafter limited to a passive participation in the sense that a third party, TFA [Task Force Argentina], represents their interests and makes on their behalf all the decisions relating to the conduct of the proceedings. The high number of Claimants further makes it impossible for the representative to take into account individual interests of individual Claimants, and rather limits the proceedings to the defense of interests common to the entire group of Claimants. In summary, the present proceedings seem to be a sort of a hybrid kind of collective proceedings, in the sense that it starts as aggregate proceedings, but then continues with features similar to representative proceedings due to the high number of Claimants involved."

6
The cases generally referred to in this connection (without any consistent reasoning as to why they are considered "collective") are Erhas Dis Ticaret Sti and others v Republic of Turkmenistan, Award, 8 June 2015 (involving 22 claimants; the decision is unpublished but reported in www.iaireporter.com); Alasdair Ross Anderson and others v Costa Rica, ICSID Case No. ARB( AF)/07/3, Award, 19 May 2010 (involving 137 claimants); Bernardus Henricus Funnekotter and others v Zimbabwe, ICSID Case No. ARB/05/6, Award, 22 April 2009 (involving 14 claimants); Canadian Cattlemen for Fair Trade v United States, NAFTA/UNCITRAL case, Award on Jurisdiction, 28 January 2008 (involving 109 claimants); Bayview Irrigation District and others v Mexico, ICSID Case No. ARB(AF)/05/1, Award, 19 June 2007 (involving 46 claimants); Antoine Goetz and others v Burundi, ICSID Case No. ARB/95/3, Award, 10 February 1999 (involving 6 claimants). In many of those cases the issue of whether claims by multiple claimants could be brought together was not addressed in and the Ambiente Ufficio tribunal advised caution regarding attempts to draw definitive conclusions from those decisions (Ambiente Ufficio, supra fn. 2, § 138; see also Giovanni Alemanni, supra fn. 2, § 288). The Ambiente Ufficio tribunal also recognized that "multi-party arbitration is a common feature in ICSID arbitration" since, at the time of the award, the ICSID’s case list revealed that in almost forty reported cases there were at least three claimants (Ambiente Ufficio, supra fn. 2, § 135).

7
Also the investment chapters of the trade agreements that the European Union is negotiating with Canada, Singapore and the United States provide no specific rules. Interestingly, they all include "bonds" in the definition of protected investments. Bonds are a form of investment that by nature can give rise to collective claims, as the Argentinian cases under discussion demonstrate (see for instance Article 8.1 of the CETA, definition of "investment", let. c). For an overview of the substantive and procedural rules in these investment chapters, as well as a discussion of future evolution of investor-State protection and arbitration, see L. G. Radicati di Brozolo, Where is Investor-State Arbitration Heading? Reflections on the Debate over EU Investor Protection Agreements, in A. Carlevaris, L. Lévy, et al. (eds), International Arbitration under Review. Essays in Honour of John Beechey, ICC Publishing, 2015, p. 319 ff. and L. G. Radicati di Brozolo and F. Iorio, Arbitration Under Investment Protection Agreements between the EU and Non-Member States, in World Arbitration Reports, Rel. 8-2015.

8
Article 1126.2 of NAFTA: "Where a Tribunal established under this Article is satisfied that claims have been submitted to arbitration under Article 1120 that have a question of law or fact in common, the Tribunal may, in the interests of fair and efficient resolution of the claims, and after hearing the disputing parties, by order: (a) assume jurisdiction over, and hear and determine together, all or part of the claims; or (b) assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in the resolution of the others."

9
See, for instance, Article 33 of the US-Uruguay BIT; Article 15.24 of the US-Singapore Free Trade Agreement; and Article G27 of the Canada-Chile Free Trade Agreement.

10
See Article 8.43 of the CETA (the text is available online at http://trade.ec. europa.eu/doclib/docs/2014/september/tradoc_152806.pdf); Article 9.29 of the EU-Singapore FTA (the text as at May 2015 is available at http://trade.ec. europa.eu/doclib/press/index.cfm?id=961; and Section 3, Article 27 of the TTIP (the European Union’s proposal made public on 12 November 2015 is available at http://trade.ec.europa.eu/doclib/docs/2015/november/tradoc_ 153955.pdf).

11
Ambiente Ufficio, supra fn. 2, § 153. On the relevance of the expectations that can be drawn from domestic law, and in particular that of the law of the host State, as to the bringing of collective proceedings see Id., § 133-134.

12
Abaclat, supra fn. 2, § 484.

13
The irrelevance of policy goals and efficiency considerations for this analysis is underscored by Ambiente Ufficio, supra fn. 2, § 145.

14
Ambiente Ufficio, supra fn. 2, § 129; Giovanni Alemanni, supra fn. 2, § 269-270. On the relevance for this discussion of the notion of consent and on its formation in international law, see Giovanni Alemanni, supra fn. 2, § 284.

15
Ambiente Ufficio, supra fn. 2, § 131; Giovanni Alemanni, supra fn. 2, § 270, noting that the Vienna Convention’s canon of interpretation according to good faith can "by no stretch of the imagination be read as imposing a sort of lexicographical literalism".

16
Ambiente Ufficio, supra fn. 2, § 132.

17
See S. Brekoulakis, The role of non-signatories in international commercial arbitration: rethinking the concept of consent, forthcoming.

18
See fn. 6 above. Most of these awards are discussed in Ambiente Ufficio, supra fn. 2, § 136 ff. and Giovanni Alemanni, supra fn. 2, § 285.

19
Abaclat, supra fn. 2, § 490.

20
Abaclat, supra fn. 2, § 490.

21
See V. Heiskanen, supra fn. 1, p. 619.

22
Ambiente Ufficio, supra fn. 2, § 141.

23
Ambiente Ufficio, supra fn. 2, § 146.

24
Ambiente Ufficio, supra fn. 2, § 146.

25
Erhas v Turkmenistan, supra fn. 6. The tribunal apparently also held that since arbitration (in that case UNCITRAL arbitration) is a private and consent-based process and designed to solve a single dispute, the parties have a legitimate expectation of separate processes.

26
Dissent of Prof. Abi-Saab, supra fn. 1, § 122 ff., especially § 146-190.

27
Giovanni Alemanni, supra fn. 2, § 270.

28
Giovanni Alemanni, supra fn. 2, § 285-286.

29
Giovanni Alemanni, supra fn. 2, § 288 ff.

30
Giovanni Alemanni, supra fn. 2, § 292.

31
Giovanni Alemanni, supra fn. 2, § 293.

32
As seen above, the outlier on this point may be Erhas v Turkmenistan, supra fn. 6.

33
The complete lack of homogeneity between the claims and the claimants seems to have been at the heart of the decision in Erhas v Turkmenistan, supra fn. 2.

34
Ambiente Ufficio, supra fn. 2, § 490, 153.

35
Abaclat, supra fn. 2, § 540.

36
Abaclat, supra fn. 2, § 540.

37
Abaclat, supra fn. 2, § 540. This type of analysis was not engaged in by earlier tribunals.

38
Abaclat, supra fn. 2, 542-544.

39
Dissent of Prof. Abi-Saab, supra fn. 1, § 142.

40
Ambiente Ufficio, supra fn. 2, § 154 and § 161.

41
Guaracachi America, Inc. and Rurelec plc v The Plurinational State of Bolivia, PCA Case No. 2011-17, Award, 31 January 2014, § 334. Claims under two different BITs in relation to the same investment were adjudicated in the same proceedings in Flughafen Zürich A.G. and Gestión e ingeniería IDC S.A. v Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/19, Award, 18 November 2014.

42
Guaracachi America, Inc. and Rurelec plc v The Plurinational State of Bolivia, PCA Case No. 2011-17, Award, 31 January 2014, § 336-337.

43
These cases are mentioned supra, in fn. (*).

44
The issue was addressed in a much more satisfactory manner in Guaracachi America, supra fn. 41, § 338-340, which distinguished ab initio multiparty proceedings from the different situation of consolidation, which requires specific consent from all the parties: "In the Tribunal’s view, the issue raised by the Respondent of whether express consent regarding the form of the present arbitration is required is also not an issue of ‘consolidation of proceedings’. Indeed, in the instant case, the Claimants did not commence two separate arbitrations in respect of two independent arbitral claims that have subsequently been consolidated. The Claimants submitted, ab initio and in the same arbitration, two claims by two claimants against one respondent, regarding the same dispute and involving the same set of facts, albeit allegedly in violation of two different BITs concluded by the Respondent with the UK and the US, respectively. It is clear that the object of both claims is the same, since the allegedly unlawful action by Bolivia was also a single one, notwithstanding the fact that, in practice, the present case concerns two identical and overlapping claims by two claimants against the same respondent in the same arbitration proceeding. On the other hand, in cases of consolidation of proceedings, the matching of consents with respect to each of the arbitrations has already occurred. As such, the case law and literature hold—as both Parties in this proceeding have also affirmed—that consent is required from all parties involved in order to allow the merger of the two arbitrations into one. The Tribunal considers that there is, therefore, no valid analogy to be made between this case and cases of consolidation of proceedings. The Tribunal therefore considers that, even if it would have been possible for the Claimants to submit separate arbitral proceedings, nothing precludes them—given the obvious link between both Claimants and the identity of the facts alleged—from deciding to jointly submit a single arbitration case, albeit invoking different BITs."

45
See Abaclat, supra fn. 2, § 65, 84 ff.

46
Ambiente Ufficio, supra fn. 2, § 242; Giovanni Alemanni, supra fn. 2, § 277.

47
Abaclat, supra fn. 2, § 487-488.

48
See R. Kabra, Has Abaclat v Argentina left the ICSID with a ‘mass’ive problem?, in Arbitration International, vol. 31 no. 3, 2015, § 444: "Due process is not an end in itself, but merely a means to achieve a just and fair settlement of a dispute. […] making ‘mass claims’ inadmissible results in a frustrating situation for both investors and states since the former is denied an effective remedy and the latter becomes susceptible to potentially conflicting decisions."

49
Abaclat, supra fn. 2, § 519.

50
Id., § 539.

51
Id., § 545. See also Ambiente Ufficio, supra fn. 2, § 166; Giovanni Alemanni, supra fn. 2, § 324.

52
Abaclat, supra fn. 2, § 546. See also Ambiente Ufficio, supra fn. 2, § 168; Giovanni Alemanni, supra fn. 2, § 324.

53
Dissent of Prof. Abi-Saab, supra fn. 1, § 235-239.

54
Corn Products International, Inc. v United Mexican States, ICSID Case No. ARB (AF), Award (not public), 18 August 2009 analyzed in E. Silva Romero, Consolidation and Parallel Proceedings, in M. N. Kinnear, G. R. Fischer, et al. (eds), Building International Investment Law: The First 50 Years of ICSID, Kluwer Law International, 2015, p. 601 ff. Consolidation under NAFTA Article 1126 was instead admitted in Canfor Corporation, Tembec Inc., Tembec Investments Inc. and Tembec Industries Inc. v United States, UNCITRAL, Order of the consolidation Tribunal of September 7, 2005 (see E. Silva Romero, op. cit., p. 607 ff.).

55
Abaclat, Procedural Order No. 17 of 8 February 2013, by majority, § 21.

56
Interestingly, the notion of dispute borrowed from Alemanni is proposed by S. Brekoulakis (The role of non-signatories in international commercial arbitration, supra fn. 17) as a more appropriate construct to deal with multiple claims and multiple parties in commercial arbitration and to overcome the problems with the traditional approach to this subject which improperly relies on putative consent.

57
V. Heiskanen, supra fn. 1, p. 624-625.

58
See E. Silva Romero, supra fn. 54, p. 607 ff.

59
See E. Silva Romero, supra fn. 54, p. 609.

60
There seems to be little room for importing into investor-State arbitration the "rethinking of the concept of consent" for which S. Brekoulakis (The role of non-signatories in international commercial arbitration, supra fn. 17) makes a very convincing case in relation to commercial arbitration. This is because investor-State arbitration involves States, whose amenability to submit to arbitration is less than that of private parties, and because it is not possible to conceive of arbitration in investor-State relations as a default dispute settlement mechanism, as commercial arbitration arguably is in relation to international business disputes.

61
See supra, fn. 13.

62
The pervasiveness of such considerations is evident in the two awards analyzed by E. Silva Romero, supra, fn. 54.

63
See L. G. Radicati di Brozolo, Where is Investor-State Arbitration Heading?, supra fn. 7, p. 342.