CYIL 2014

AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS… hardly argue that this principle would trump the Kompetenz-Komptenz doctrine once an arbitral tribunal has confirmed its jurisdiction to hear a dispute and nudge the arbitral tribunal to ask a court for its opinion on the litigations held in parallel. • Forum Non-conveniens Determining whether the forum which was selected by a party is a suitable one is one of the premises of the common law doctrine of forum non–conveniens. 113 Arbitrators, such as courts, can actively assess their duty and their “suitability” to hear a dispute when a party raises the issue of a new arbitration. 114 In one of the prominent judgements in the case Attorney General v. Mobil Oil NZ Ltd., 115 the High Court of New Zealand decided to stay the proceedings given the fact that arbitration under the auspices of ICSID was simultaneously taking place. The reverse occurred in the case SPP v. Egypt 116 where under certain circumstances, the ICSIDTribunal expressed its readiness to observe the principle of comity (and the existence of a more appropriate forum) to such an extent that it suspended arbitral proceedings until parallel domestic proceedings were held in front of French courts, despite the fact that the ICSID Tribunal declared that it did not deem itself to be bound by the lis pendens principle. The Tribunal stated that “[w]hen the jurisdictions of two unrelated and independent tribunals extend to the same dispute, there is no rule of international law which prevents either tribunal from exercising jurisdiction. However, in the interest of international judicial order, either of the tribunals may, in its discretion and as a matter of comity, decide to stay the exercise of its jurisdiction pending a decision by the other tribunal.” 117 It is also important to bear in mind case law when considering a choice of the most appropriate forum to hear a claim, because this refers to the need to submit a dispute to a specialized body designated by other decisive aspects, such as the nature of the claim. In case law which touches upon this topic, one of the aspects which gives rise to a specialized approach is, for example, the applicability of the law of sea. The Southern Bluefin Tuna 118 case and the Mox Plant case 119 demonstrate some 113 As it is a shared understanding that these negative consequences must be avoided, forum non–conveniens has been gaining international acceptability, although on many occasions the same objectives have been achieved under doctrines of abus de droit , closer to civil law jurisdictions, and lis pendens when applied as a general principle of law. F.O. Vicuña, supra note 9, pp. 1-2. 114 Arbitrators, such as courts, could actively assess their duty when a party raised the issue of a new arbitration. See: Y. Shany, The competing Jurisdiction of International Courts and Tribunals , (Oxford University press, 2004), p. 223. 115 Attorney-General v Mobil Oil NZ Ltd [1989] 2 NZLR 649. 116 Southern Pacific Properties (Middle East) Ltd. v. Arab Republic of Egypt , ICSID Case No. ARB/84/3. 117 SPP v Egypt , Decision on Jurisdiction I, 27 November 1985, 3 ICSID Reports 112, 129. 118 Southern Bluefin Tuna v. New Zealand, Arbitration under the United Nations Convention of the Law of the Sea (UNCLOS). 119 Ireland v. United Kingdom (“MOX Plant Case”), Arbitration under the United Nations Convention of the Law of the Sea (UNCLOS).

391