CYIL 2014

ZUZANA JAHODNÍKOVÁ –

MILOŠ OLÍK

CYIL 5 ȍ2014Ȏ

4.1 Does the New York Convention Possess the “Veni, Vidi, Vici” Credentials? In a sphere where thousands of cases are pending before arbitral tribunals which are deliberating disputes found around the entire globe, it can come as a rather bitter surprise to the parties facing the negative effects of parallelism that some arbitral rules, international agreements and treaties are either silent on the topic, do not elaborate on this topic more thoroughly, or do not offer viable tools to avoid the generation of parallel proceedings. Some international instruments, however, address this issue and aim to facilitate a regulation and its drawbacks. One can hardly imagine or envisage the expansion of the international arbitration system without rules safeguarding the independent standing of the dispute resolution method. Looking at the importance of the New York Convention, 34 one cannot ignore the role that this internationally recognized agreement has had in the establishment of “a system for a pacific co-existence of arbitration and court adjudication“. 35 Arbitration exists in an international domain; it has its own space independent of all national jurisdictions. 36 Focusing on the approach taken in one of the most important sources of arbitration law - Article II(3) of the New York Convention, where it is stated that a court before which an action is brought in breach of a valid arbitration agreement must decline jurisdiction unless the arbitration agreement is void, inoperative or incapable of being performed. One of the effects of the rules embodied in Article II(3) is the doctrine of competence competence [this also underlines Article II(3)]. The Kompetenz-Kompetenz principle has two aspects: first, it confirms to arbitrators that they may decide on their jurisdiction without need for support from state courts; second, it prevents state courts from determining the issue of arbitrator’s jurisdiction before they have decided it. In due course, the independence of arbitration comes to be based eo ipso upon a favourable “legal fiction of the doctrine of separability and the related concept of Kompetenz-Kompetenz”, 37 which is strengthened by virtue of internationally accepted rules, such as those stipulated in the New York Convention. This doctrine embodies the prerequisite for and one of the pillars of the arbitration system, according to which arbitrators have the power to decide on their own jurisdiction whether to hear and adjudicate the dispute presented by the parties. This enables arbitral tribunals to proceed with a dispute resolution via arbitration even in the case of pending proceedings being held by a different body. There is no exclusive jurisdiction clause, and, therefore, the national courts referred to under Article II(3) do not enjoy a prerogative to assume exclusively their jurisdiction. 34 Convention on the Recognition and Enforcement of Foreign Arbitral Awards - the “New York” Convention (entered into force on 7 June 1959). 35 B.M. Cremades, I. Madalena, supra note 3, p. 25. 36 R.H. Kreindler, “Approaches to the Application of Transnational Public Policy by Arbitrators”, 2 The Journal of World Investmen t (2003), p. 243. 37 K. Mackie, The ADR practice guide: commercial dispute resolution, 2nd edition (Butterworths, 2000), p. 66.

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