Kryvetska O. Multiple proceedings in the disputes between foreign investor and state.

The dissertation thesis comprises a comprehensive research of legal regulation of the multiple proceedings in the disputes between foreign investor and state (ISDS). The author particularly differentiates three main groups of multiple proceedings that is: fora multiplicity proceedings, parties multiplicity proceedings and both fora- and parties multiplicity proceedings. The author distinguishes the notions of “multiple proceeding” and “parallel proceeding” in the context of ISDS. The author advocates for using the term “parallel proceeding” referring to the fora multiplicity proceeding, that comprises the main type of multiple proceedings and is characterized by multiplicity of competent dispute settlement bodies. A notion of forum shopping in ISDS is explained. The factors of the proceeding multiplicity in ISDS are explained and classified. Based on the relevant arbitration practice, the shortcomings of application of certain legal mechanism are analyzed and revealed, such as fork-in-the-road clause; waiver provision (“no u-turn” provision); res judicata and lis pendens; consolidation of claims; and anti-suit injunctions. The dissertation thesis summarizes certain directions for developing the abovementioned mechanisms. Inter alia, the particular focus is made on the following issues: the triple identity test liberalization for application of fork-in-the-road clause, res judicata and lis pendens principles, application of the fundamental basis doctrine; development of anti-suit injunctions rules. The dissertation also provides for an analysis of the approaches to definition of “investor” and particularities of shareholder’s legal status in ISDS. The thesis particularly deals with disputes triggered by the corporate restructuring and treaty shopping. A link between forum-shopping and treaty shopping in ISDS is explained and exemplified. The priority legal mechanisms for prevention of multiple parties multiplicity proceedings are formulated. The author suggests, inter alia, that a higher threshold for definition of investor’s nationality should be prescribed in the BITs, a good faith principle should be applied by tribunal; abuse of process criteria should be determined; real interested party doctrine should be coherently applied by tribunals taking into account a factor of control over investments as both positive and negative criteria. The dissertation also provides for analysis of the international investment system reform in the context of the multiple proceedings prevention based on experience of the EU and the UNCITRAL. Working group ІІ in the field of the ISDS multiple proceedings prevention; an idea of Ukraine’s accession to the UNCITRAL Working group ІІ is raised and justified. The author highlights an existence of a conflict between the competence-competence doctrine, on the one hand, and certain IIAs provisions prescribing multiple proceedings prevention mechanisms, on the other hand. The relevant provisions of the EU-Canada Comprehensive Economic and Trade Agreement as well as the EU-Singapore Investment Protection Agreement are scrutinized. The dissertation deals with both procedural tools of multiple proceedings prevention and the institutional reform of the ISDS system. The author asserts that realization of the investment court system proposed by the EU is likely to further aggravate fragmentation of international investment law. The thesis also analyses the UNCITRAL documents dealing with multiple proceedings prevention in ISDS. The thesis also contains an assessment of current multiple proceedings regulation in the BITs of Ukraine. The dissertation particularly analyses multiple proceedings-related issues resulted from the investor-state disputes that were initiated against Ukraine. The author suggests that Ukraine is facing a high risk of being involved in potential ISDS multiple proceedings as a respondent party. The author considers it reasonable for Ukraine to intensify efforts in three directions: 1) elaboration and approval of a model BIT; 2) re-negotiation of the current BITs and signing new ones in order to incorporate the improved mechanisms of the multiple proceedings prevention; 3) accession to the UNCITRAL Working group II. Some new mechanisms and approaches prescribed in the Draft 2018 Netherland Model BIT, 2017 Model BIT of Colombia and 2017 Ukraine-Turkey BIT are analysed and presented as a benchmark. Finally, the dissertation provides for a range of proposals for the BITs of Ukraine in the context of regulation of multiple proceedings.