CYIL 2014

AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS… avoid conflicting decisions, when the same dispute between the same parties and regarding the same subject matter or relief (petitum) and the same legal grounds (causa petendi) is brought to another forum“. 55 Whilst the anti-suit injunctions became attributed to the common law system, the concept of lis pendens established itself on the continent as a rule running on the first-come, first-served principle. Hence, its effect is prohibitive and injunctive in the meaning that a second forum cannot accept adjudicating a dispute given that the action brought by a party is already being discussed in front of a different forum. If this principle shall apply, a triple-tier test has to be satisfied; firstly, the parties are identical. This condition has to be regarded as fulfilled even if the identity cannot be established from the procedural aspect; ergo the identity of parties arises irrespective of their position. 56 Secondly, the parties aim to achieve identical relief in the parallel proceedings. This is, however, subject to a narrow interpretation, and the party relying on the parallel proceedings will aim to prove that its claim differs and, therefore, needs to be adjudicated in a separate set of proceedings. Lastly, the designation and character of the basis of the claim has to be identical. The ILA Recommendations 57 on lis pendens take as their point of departure the principle of Kompetenz-Kompetenz. However, the Recommendations do not deal with the “same legal order” requirement since, as mentioned above, the Committee acknowledged the complexity of the issue and the increasing interaction of legal orders and decided not to include it in the requirements of res judicata . 58 An arbitral tribunal that considers itself to be prima facie competent pursuant to the relevant arbitration agreement shall, therefore, continue with the arbitration regardless of any other proceedings pending before a national court or arbitral tribunal in which the parties and one or more of the issues are the same or substantially the same. 59 When approaching parallel proceedings from the Kompetenz-Kompetenz point of view, the second tribunal or adjudication forum which has been called upon to resolve the dispute would be entitled to decline its jurisdiction, or to enact a suspension of the proceedings held in front of it, in anticipation of a relevant decision in the first set of proceedings. 55 B. M. Cremades, I. Madalena, supra note 3, p. 3. 56 The triple-tier test is a widely accepted test method for the establishment of res judicata . Res judicata in international arbitration only applies when the earlier award refers to a case involving the same subject matter or relief, the same legal grounds and the same parties. J. B. Acosta Estévez, “El Proceso ante el tribunal Internacional de Justicia (1995); Certain German Interests in Polish Upper Silesia (Germany v. Poland) (Jurisdiction”, PCIJ Rep Series A No. 6, 20 as cited in: B. M. Cremades, I. Madalena, supra note 3, p. 15. On the edge of the considerations concerning the position of parties one has to note that in investment arbitrations it is the investor who, in the overwhelming majority of cases, initiates proceedings at various forums. This positions the investor in the role of a claimant. 57 ILA, “Final Report on Lis Pendens and Arbitration”, supra note 11. 58 P. Muchlinski, F. Ortino, Ch. Schreuer, The Oxford Handbook of International Investment Law, (Oxford University Press, 2008), p. 1020. 59 B. M. Cremades, I. Madalena, supra note 3, p. 8.

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