Investor Presentaiton
seeking relief under the same treaty against the same respondent for
the same measures.
116
1. Pros and cons of consolidation
Consolidation of proceedings helps to deal with the problem of
related proceedings, contributes to the uniform application of the
law and reduces the costs of proceedings. The fact that consolidation
increases coherence and consistency in arbitral awards is of
particular importance for investment arbitration, where arbitrators
are not bound by prior awards and their awards are not subject to
appeal. In addition, consolidation may greatly decrease the cost and
time of arbitral proceedings. At the same time, in some
circumstances, a respondent State may feel that consolidation is not
in its interests. The State might hope that at least one of the
claimants would fail to press its case or that, strategically, if the
proceedings remain separate, it would have a better chance of
prevailing in at least one of them. 117 Investors may oppose
consolidation if they are competitors in the relevant market because
joining proceedings may require disclosing sensitive business
information to their co-claimants. 118
116 See, e.g., Canadian Cattlemen for Fair Trade v. United States,
UNCITRAL, Award on Jurisdiction, 28 January 2008; Bayview Irrigation
District et al. v. Mexico, ICSID ARB(AF)/05/1, Award, 29 June 2007.
More controversially, in Abaclat et al. v. Argentina, an ICSID tribunal
determined it had jurisdiction over a mass claim of some 60,000
bondholders notwithstanding Argentina's argument that it had not agreed
to arbitrate such mass claims. ICSID No. ARB/07/5, Decision on
Jurisdiction and Admissibility, 4 August 2011.
117 For instance, in the CME/Lauder dispute, the Czech Republic refused to
consent to the consolidation of the two cases, as proposed by the claimants,
and prevailed in one of the cases.
118 This was the case in the high-fructose corn syrup cases, in which the
claimants opposed consolidation. Although the tribunal had the authority
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