CYIL 2014

AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS… when, alongside arbitrations (or court proceedings), another litigation (or multiple litigations) is taking place. Despite the manifold definitions, technicalities and notions associated with parallelism, a diversity of opinions is converging when discussing its effects. Here, all opinions focus on the fact that parallel proceedings are problematic because they pose an intrinsic risk of inconsistent legal results. 30 The issue, which can be observed in the common consensus of the opinions of scholars and legal practitioners, is the undeniable fact that there are several reasons why proceedings held in parallel are highly unwelcome. As observed by Prof. Kaufmann-Kohler, the risk of contradictory decisions, the waste of resources due to duplication of proceedings, and the potential for harassment are making parallelism highly undesirable. 31 Also Prof. Šturma highlights the fact that not only can such proceedings invoke the erroneous impression that the tribunals/courts deciding the cases are rivals but also the risk of the existence of two contradictory decisions in the same matter is increasing. 32 Parallelism is thus shaped by both the averting measures directed at the multiple set of proceedings and, as well, by the response of the forum and the existence of its authority to determine whether to defuse or to accept the measure. As will be highlighted throughout this paper, the issue which should be addressed when talking about instruments and means designed to eliminate the negative impact brought about by parallel litigation is unquestionably effectiveness. 4. Prevention of Parallel Proceedings: Between Effectiveness and Independence Returning to the effects of this phenomenon in investment arbitration, different methods have been adopted over time in turn to target this phenomenon and to facilitate the mitigation of its negative impact. In order to prevent the undesirable effects of parallel proceedings, it may be observed that several rules and tools have been implemented in international arbitration to address this issue. 33 The subject matter of these tools is the targeting of the existence of parallel proceedings and any aspect of the “remedies” given to the parties; these may only be judged against a background of both their effectiveness and, indeed, efficiency. 30 R.F. Hansen, supra note 10, p. 528. 31 G. Kaufmann-Kohler, “How to Handle Parallel Proceedings: A Practical Approach to issues such as Competence-Competence and Anti-Suit Injunctions”, p. 110, available at: http://www.lk-k.com/data/ document/how-handle-parallel-proceedings-practical-approach-issues-such-competence-competence and.pdf; accessed: 4 April 2014. 32 P. Šturma, „Konkurující jurisdikce mezinárodních rozhodovacích orgánů”, p. 10, available at: https:// www.mzv.cz/file/317505/Konkur_jurisdikce_zkracena.pdf; accessed: 4 April 2014. 33 According to Kaufmann-Kohler, as a tool of last resort we should not forget non-enforcement of a judgment or arbitral award rendered in the undesirable parallel proceedings, since non-enforcement will avoid at least part of the consequences of conflicting decisions. G. Kaufmann-Kohler, supra note 31, p. 111.

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