CYIL 2014

ZUZANA JAHODNÍKOVÁ –

MILOŠ OLÍK

CYIL 5 ȍ2014Ȏ

• Comity In general, the principle of comity is one of the immanent legal principles, based on the ideas of courtesy and respect, which were developed to facilitate good relations among states. According to this principle, “one nation will defer and give effect to the laws and judicial decrees of another country, as long as those laws and judicial decrees are consistent with the law and public policy of the accommodating nation”. 108 Therefore, comity has to be seen as a discretionary rule which may also authorise a stay or dismissal of proceedings if similar proceedings are pending elsewhere and which may be applied by both courts and arbitral tribunals. Considerations on how comity may influence the decision-making process of arbitral tribunals are often related to the arbitrator’s capacity to issue an anti-suit order. As some commentators confess, “even if international comity is a principle that an arbitrator should take into consideration in some circumstances, it should not play a role in deciding whether to grant an anti-suit order to remedy a breach of an exclusive arbitration agreement”; 109 therefore, the commitment to comity is neither definite nor relentless. On the contrary, if conditions for anti-suit orders or injunctions have been met, comity should not represent a hindrance. Summa summarum, a violation of such a specific agreement as an arbitration agreement gives rise to a principle by which the breach takes precedence, and thus comity shall relinquish. 110 In the decentralized litigation sphere, where arbitration undoubtedly lies, the lack of hierarchy and institutional integration can result in legal uncertainty and complications, which leave the parties to reconsider whether arbitration was indeed the right choice to make. With decentralization the likelihood of parallelism equally rises, while at the same time the need and obligation to co-operate diminishes. Comity in the sense of respect and good relations will also find its application in the relationship between the judicial and arbitral bodies. Court assistance is unquestionably a necessary element of the arbitration system, yet national procedural laws which permit local courts to unduly intervene in the arbitral process often provide unwilling (or losing) parties with the power to frustrate the arbitration, or delay the enforcement of the award. 111 These procedures actively assist the arbitration process, but many jurisdictions also permit the court to implement a variety of “corrective” or “supervisory” remedies whereby the court can supervise the arbitral process and “correct” any procedural abuses. 112 Although comity has to be seen only as an auxiliary measure, one can 108 Frank B. Cross, West’s Legal Environment of Business: Text and Cases: Ethical, Regulatory, International and E-commerce Issues, Thomson Learning, Inc, 2007. 109 R. Moloo, supra note 48, p. 695. 110 Notwithstanding the importance of international judicial cooperation, a breach of an exclusive arbitration agreement is the very circumstance where any relevant international comity concerns would be trumped. Ibid , p. 696. 111 Pippa Read, Delocalization of International Commercial Arbitration: Its relevance in the New Millenium, 10 Am. Rev. Int’l Arb. 177, pp. 179-84 (1999). 112 Ibid .

390