It is also expressed by the Latin maxim of una via electa non datur recursus ad alteram (“once one road is chosen, there is no recourse to the other”).2 Hence, the fork in the road clauses result in that the investor has a choice of forum that is irrevocable.3 These two elements (having a choice that is irrevocable) were used by arbitral tribunals to determine whether provisions were actually fork in the road provisions.4
II. Treaty practice
III. Distinction with other related procedural issues
In contrast, the exhaustion of local remedies clauses impose a procedural requirement on the investor to resort to all available and effective local remedies that exist in a domestic legal order. Fork in the road clauses oblige the investor to make a final choice between domestic or international remedies, rather than requiring it to file a claim in one forum after the other.7
Although they prima facie seem undistinguishable, a waiver of local remedies "requires the investor to refrain from turning to a domestic court prior to filing an arbitration by submitting a written waiver, whereas the former (fork in the road clauses) allows the investor to choose between a domestic proceeding and an investment arbitration."8 Arbitral tribunals established this distinction when examining the fork in the road provisions in article 1121 of NAFTA9 and article 26(3) of the ECT.10
By examining its structure, one can state that fork in the road clauses aim to tackle the problems that may arise from the existence of parallel proceedings (lis alibi pendens) by narrowing the investor’s choice of fora into one.11 Additionally, investment tribunals often uses the “triple identity” test of parallel proceedings to decide on the legality of the triggering the fork in the road clause.
IV. Conditions to trigger a fork in the road clause
A. General considerations
Nevertheless, arbitral tribunals often noted that investors may be required to appear before domestic courts or administrative tribunals during the course of their investment activities, which does not necessarily characterize a “choice” with respect to the applicable fork in the road provision.16
B. The "triple identity" test
Arbitral tribunals frequently assess the investors’ choice of jurisdiction pursuant to a fork in the road clause by applying the “triple identity” test19 which requires that (i) the same dispute20 (ii) involving the same cause of action21 (iii) between the same parties22 be submitted to the domestic courts of the host State prior to the choice of international arbitration.23
While dealing with the second condition (identity of cause of action between the case filed before the domestic courts and before the investment tribunal), arbitral tribunals often distinguish (i.e. claims arising out of the investment treaty and claims arising out of the underlying investment contracts concluded with the host State).
Investment tribunals have considered that contractual claims handled before domestic courts do not have the same cause of action as claims under the relevant BIT and that they are each are “on a different road”.24 Accordingly, tribunals have ruled correlatively that exclusive dispute resolution provisions in an investment contract would not bar the commencement of an arbitration based on a BIT.25
C. The "fundamental basis" approach
Other arbitral tribunals departed from the distinction between “contractual” and “treaty” claims and from the triple identity test and simply relied on the “fundamental basis” of a claim, which focuses on the subject matter of the dispute brought before the different forums.26 In doing so, investment tribunals are focused on claims having the “same normative sources” and acknowledge that “the same facts can give rise to different legal claims and similarity of prayers doesn’t necessarily bespeak an identity of causes of action.”27 Nevertheless, it should also be noted that the specific wording of the fork in the road clauses will play a key role to interpret the jurisdictional issue at the concrete case.
V. Fork in the road clause and provisional measures proceedings before domestic courts
In this respect, tribunals have regard primarily to the provisions of the applicable BIT and the arbitration rules. The majority of these rules explicitly state that as long as it is stipulated in the consent to arbitration, requesting domestic courts to order provisional measures shall not be deemed incompatible with the filing of an international arbitration.29
VI. Fork in the road and most-favoured nation clause
VII. Fork in the road and bifurcation
VIII. Fork in the road and denial of justice
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