Procedural Issues Relating to Shared Responsibility in Arbitral Proceedings

International arbitration is a particularly suitable dispute resolution mechanism for addressing shared responsibility issues, due to its flexible procedural rules allowing for a multitude of parties, including states and non-state actors. This article analyses six procedural rule-sets (United Nations Commission on International Trade Law, Permanent Court of Arbitration, International Centre for the Settlement of Investment Disputes, International Law Commission (ICC), International Bar Association (IBA) and the European Union special regime) from three angles: first, bringing the relevant (co-responsible) parties before the tribunal, including constitution of the tribunal, jurisdiction and determination of claimant and respondent status. Secondly, handling multi-party disputes in terms of evidence and fact-finding, joinder and consolidation of proceedings. Thirdly, regarding absent (co-responsible) parties, addressing intervention and the effect of provisional measures and final awards. Most rule-sets provide guidance for most of these issues, with particularly remarkable foresight in the IBA and ICC rules. These are primarily aimed at regulating international commercial arbitration, but can with some modification also be applied in international public arbitration. The key recommendation is for drafters to anticipate shared responsibility claims at the outset by including appropriate procedural rules when the agreement is being negotiated.