'When I Grow Up I'll Be a Court': Understanding Investor-State Mass Claims Arbitration with the Help of Domestic Class Action Processes

Abstract

The 2011 decision on jurisdiction and admissibility in Abaclat and Others v Argentina started the discussion on mass claims processes in investment treaty arbitration. The tribunal concluded that although the proceedings were initiated as aggregate, the continuance of the case did contain a representative feature, which led the tribunal to conclude that the applicable procedure in such mass claims arbitration had to be adapted. Today, the legacy of the Abaclat arbitration and the availability of mass claims devices in investment treaty arbitration remain questionable. This paper aims at answering the question whether investment mass claims arbitration can be qualified as “class-like”, and if so whether it satisfies the fundamental principles of arbitration (particularly the principle of consent). In order to do so, the paper takes a comparative approach to investment mass claims arbitration, on the one hand, and class actions processes existing in the United States of America, on the other. The paper argues that mass claims arbitration, as constructed by the Abaclat tribunal, cannot satisfy the fundamentals of arbitration, which remain the same even when class arbitration is concerned. Hence, it would be wrong to regard mass claims arbitration as a currently available device to investors in investment treaty arbitration.