53 - Parallel Proceedings in International Commercial Arbitration

Summary

The occurrence of parallel proceedings involving the same dispute and the same parties in international commercial arbitration is a well known phenomenon. In particular, this scenario arises when two identical proceedings regarding jurisdictional matters and/or the merits of the case are pending at the same time before a state court and a foreign arbitral tribunal, or before two arbitral tribunals seated in different jurisdictions. In order to prevent the undesirable effects of the proliferation of proceedings (namely the risk of lengthy and costly proceedings and the risk of irreconcilable decisions), different tools can be deployed. The analysis of the techniques most frequently employed to address this problem shows that many of the procedural mechanisms available are ill-suited, given the specificity of international commercial arbitration. Hence, the undisputed emergence of international arbitration as a reliable and effective alternative to court litigation and the judicial policy of minimal interference with the arbitration process suggest that a pro-arbitration approach in dealing with the lis pendens issue should be embraced. As regards the situation of lis alibi pendens before a state court and a foreign arbitral tribunal, this entails the prioritarization of arbitral tribunals over national courts as long as a dispute covered by a prima facie existent arbitration agreement is brought before an arbitral tribunal. Conversely, in a scenario in which proceedings are already pending before a national court, it is suggested that a (foreign) arbitral tribunal should be entitled to stay proceedings in order to avoid protracted and expensive parallel litigation, although it is certainly not to bound to do so, at least in the absence of a joint request by the parties or in presence of a clear waiver of the arbitration agreement. A comparable flexibility should also guide the solution to be adopted in parallel arbitral proceedings, where the tribunal second seized should be free to act according to case management considerations.