Two Bites at the Cherry: Parallel Proceedings Before the European Court of Human Rights and Arbitral Tribunals
Abstract
The proliferation of international courts and tribunals and their expanding jurisprudence in distinct fields of public international law has received mixed reactions. On one hand, a more frequent resort to international adjudicative mechanisms is cited as a sign of legislating international relations and a recognition of the effective enforcement of international legal obligations.
At the same time, the increase in the number of dispute settlement fora raises serious concerns regarding forum shopping, double recovery and contradictory decisions in legally and factually similar cases that might further undermine the unity of public international law. Despite the risks related to the existence of concurrent jurisdictions, dispute settlement provisions in international treaties are frequently silent on the effects of potential parallel proceedings.
With reference to Article 38(1)(c) of the ICJ Statute, international adjudicative bodies have bridged these gaps by relying on the general legal principles of lis pendens and res judicata. Their interpretation is however far from being uniform.
These divergences can be demonstrated also in the case law of the European Court of Human Rights and international arbitral tribunals that are increasingly used as viable alternatives by foreign investors seeking damages for host states' sovereign interferences. The danger of parallel adjudication of similar cases became most evident in the Yukos saga where three arbitral tribunals operating under the UNCITRAL Arbitration Rules and the European Court of Human Rights rendered contradictory decisions in cases with the same factual background in only a couple of weeks' time.
This paper revisits the practice of these judicial and arbitral bodies and explores their distinct approach to the interpretation of lis pendens and res judicata principles in their decisions.