2017 | Enero 6
Abuse of process has become increasingly frequent in the fields of international commercial arbitration and investment treaty arbitration over the past decades. A true instance of abuse of process denotes conduct that is prima facie legal and that cannot be redressed through the application of established rules of procedure or due process. Drawing on arbitral case law and the author’s experience as arbitrator and counsel, this article identifies categories of abuse of process that arise in contemporary arbitral practice and proposes legal tools that can effectively tackle this growing phenomenon.
The tremendous growth of investment treaty arbitration has no doubt contributed to the increasingly litigious nature of international arbitration. Gone are the days when investment arbitrations were largely based on an investment contract between the State and a specific counterparty: today, most investment arbitrations are initiated under a bilateral or multilateral investment treaty in which a State has offered its advance consent to arbitrate with an anonymous class of investors