Author

Dr Maximilian Pika

Associate - Morgan, Lewis & Bockius LLP

Editors
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Abuse of Process

I. Definition

1.

Under international law, the doctrine of abuse of process precludes a claim as inadmissible. The doctrine is an implementation of the general doctrine of abuse of rights and the principle of good faith.1 Abuse of process “denotes conduct that is not prima facie illegal” but that “can nonetheless cause significant prejudice to the party against whom it is aimed and can undermine the fair and orderly resolution of disputes by international arbitration.”2 The assessment is discretionary and fact-based.

2.

Whilst the ICJ often held the requirements not to be met to find an abuse of process,3 investment treaty tribunals have applied the doctrine in the contexts of dispute-aimed ‘treaty shopping’ (infra, at III.) and multiple proceedings (infra, at IV.). 

II. Treaty practice

III. Application regarding investor nationality

4.

Several arbitral tribunals regarded claims inadmissible and declined jurisdiction when investors had conducted dispute-aimed “treaty shopping”, i.e. adopted a certain nationality by means of re-location or corporate re-structuring for the purpose of bringing the dispute under a particular treaty.5 The objection failed before other tribunals.6 

5.

The primary criterion is whether the dispute was foreseeable when the nationality was adopted (when even adopted after the measure, there is no jurisdiction ratione temporis). The burden of proof lies with the respondent State and, once a prima facie case is established, with the investor. The standard of proof is the same as on the merits.7 

6.

As a further criterion, it has been assessed whether the nationality was adopted for purposes of the dispute or would also have been adopted but-for the dispute.8

IV. Application for purposes of forum coordination

7.

More recently, the doctrine of abuse of process received another function in that it precluded claims due to prior/parallel proceedings.

8.

The tribunals in Orascom and Ampal applied the doctrine because the claimants’ subsidiaries pursued overlapping claims in other fora,9 a situation where other tribunals applied the “privy” doctrine of res judicata. CME/Lauder rejected an abuse of process plea on the grounds that the Czech Republic had refused consolidation.10 

9.

A matter not yet decided under international law is whether the doctrine cannot only be applied to overcome the “same parties” requirement of res judicata/lis pendens, but also to overcome the “same subject-matter” requirement. At common law, for instance, claims that were not but should have been brought by a claimant in prior proceedings are precluded11 – a concept also favoured within the ILA’s principles in international commercial arbitration.12 Moreover, French law compensates a very strict “same legal grounds” requirement (whose scope for res judicata is not fully settled yet in international law) by a “concentration” duty pursuant to which all legal grounds must be brought at first opportunity.13

10.

By contrast, abuse of process cannot undermine res judicata’s “same legal order” requirement. Prior litigation does not bar arbitration of treaty rights.14

Bibliography

Brown, C., The Relevance of the Doctrine of Abuse of Process in International Arbitration, Transnational Dispute Management, 2011, Vol. 2.

Ceretelli, C., Abuse of Process: An Impossible Dialogue between ICJ and ICSID Tribunals?, Journal of International Dispute Settlement, 2020, Vol. 11, pp. 47-68.

Gaffney, J., Abuse of Process in Investment Treaty Arbitration, Journal of World Investment & Trade, 2010, Vol. 11, pp. 515-538

Gaillard, E., Abuse of Process in International Arbitration, ICSID Review, 2017, pp. 1-21.

Wehland, H., The Coordination of Multiple Proceedings in Investment Treaty Arbitration Oxford University Press, 2013, paras. 7.29-7.53.

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