The causes of actions Sample Clauses

The causes of actions are not identical‌ 56 For the fork-in-the-road provision to be applicable in this case, causes of action in the proceedings before Kronian courts and this Tribunal would have to be identical. However, they are not. While there may be some overlap, important differences exist between grounds for both proceedings, thus failing the identity of causes test. The fact that certain aspects of both cases overlap does not preclude investor from initiating arbitration in accordance with BIT.64 57 Cause of action concerns the basis of the claim, meaning that the same legal arguments and rights are employed at different proceedings.65 When causes of action are not identical there can be no fork-in-the-road preclusion.66 It has been established that contractual claims are different than treaty-based claims.67 In Vivendi, tribunal established that contract and treaty claims can be distinguished on the fundamental basis of the claim – proper law of the contract for the former and treaty for the latter.68 If the dispute between the domestic court concerns for example a contract claim or an appeal against the decision of a regulatory authority and the dispute before the international tribunal concerns a BIT claim, the fork-in-the-road clause does not apply.69 58 This is exactly where the two claims in the present case differ. On one hand, the arbitration proceedings before this Tribunal are treaty-based, concerning Respondent’s breach of several BIT provisions against Claimant. On the other hand, Xxxxxxxx’s application to Kronian courts for the suspension of the Decree was based on Kronian domestic law, while no breaches of any right conferred on Claimant by the BIT were alleged. With the application to Kronian courts, Xxxxxxxx sought for a declaratory relief regarding the unconstitutionality of the Decree, which is a procedure based on Kronian law, in front of the Kronian federal court.70 The application for a declaratory judgement cannot have the same juridical effect as a claim against a host state.71 59 Moreover, in Genin, the tribunal held that the fork-in-the-road mechanism was not triggered since the claim before a domestic court could not be litigated elsewhere (e.g. arbitration).72 The 64 Toto Costruzioni, §212; Genin, §332; CMS Gas, §111. 65 Cremades/Xxxxxxxx, p. 509; Chalikopoúlou, p. 40. 66 Genin, §331; Occidental, §§50-54. 67 Azurix I, §89; CMS Gas, §80. 68 Vivendi, §§89-110. 69 Xxxxxx, p. 307. 70 Record, p. 59. 71 Xxxxxx, §30. tribunal stated that: “[a]lthoug...