Investor Presentaiton

112 INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL 2. Premises for consolidation Not all disputes may be suitable for consolidation even though they may relate to similar subject matter. The relevant factors include: a) Consolidation pre-supposes ongoing or early-stage proceedings. If subsequent proceedings relating to a similar subject matter occur, obviously they cannot be consolidated with a case that has already finished its course or is far- advanced. b) Only those proceedings challenging the same or similar government measures can be consolidated. In other words, the fact patterns of two disputes must be sufficiently similar. The most problematic condition is that of common legal ground. Consolidating claims based on different IIAS can prove difficult because they may contain differing substantive obligations, as well as diverging time limits, procedural obligations and dispute settlement forums. 3. Consolidation provisions in arbitration rules There is no uniform practice with regard to consolidation. It will generally depend on the consent of all parties and the discretionary powers of the arbitral tribunal to decide on the issue. The most widely used arbitration rules in investment disputes ICSID and to consolidate the claims notwithstanding the claimants' opposition, the tribunal noted the complexity that would ensue if the cases were to be consolidated because of the requisite confidentiality procedures that would need to be established to protect the proprietary information of fierce market competitors. Corn Products Int'l v. Mexico, ICSID Case No. ARB(AF)/04/1 and Archer Daniels Midland Co. & Tate & Lyle Ingredients Americas, Inc. v. Mexico, ICSID Case No ARB(AF)/04/5, Order of the Consolidation Tribunal, 20 May 2005, paras. 7-13. UNCTAD Series on International Investment Agreements II

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