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AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS…
omit to assess this topic through the approach of the jurisprudence generated on the
basis of this
sui generis
legal order. The final part of the present paper will encompass
suggestions for the resolution of the conundrum of parallel proceedings. In so doing,
the authors will endeavour to outline possible alternatives to the current system, in
order to make the means employed both more efficient and satisfactory, not only for
the parties to the dispute but also for the correlation of the interfering parallel systems.
Applying these premises to the facts of the present research, one can argue that,
as such, the possibility to rely on parallel proceedings seems rather a welcome choice
given the circumstances that both parties gain a new “battlefield”, where they can
bring to attention new aspects of the dispute and take a novel shot at the arguments
presented at the arbitral forum. However, this article will attempt to examine the
aspects of those situations when parallel proceedings are being held between foreign
investors, who are asserting their claims, and host States. The main hypothesis
guiding the consideration of parallel proceedings in this paper will be centred on
the argument that, although there are some positive aspects which could, at least
partially, justify the commencement of a multiple set of litigations, this issue calls
for the adoption of anti-parallelism measures and prospective solutions which could
safeguard the interests of
bona fide
parties to the dispute. The authors will first look at
the phenomenon of parallel proceedings from the perspective of its basic features by
outlining its meaning and the situations in which parties are involved in facing more
than one proceedings. Later on the authors attempt to study the possibilities which
are identified as means to tackle parallel litigation. This shall lead to the answer to
the main question whether there are any suitable tools to address this issue. Finally
and with due reference to the name of this article, the metaphoric fulcrum of the
authors rests on the question whether and, if yes, when shall the twain (in this sense
the proceedings) meet and who will come out of the battle as the winner.
2. Legal Overview of Parallel Proceedings
Inside arbitration parallel proceedings occur when a party seeks a certain
advantage which could fashion a safe harbour for its claims or its defence strategy.
Broadly speaking, a party is able to come to a decision that a forum, different to
the one which was selected pursuant to the arbitration agreement before which the
arbitral proceedings are pending, could provide some benefit or could be more apt
for the pursuit of the party’s claims. In commercial arbitration the party that favours
arbitration, and wishes to pursue litigation in this forum, would use all its efforts in
order to forestall any other proceedings commenced by the other party. On the other
hand, the other party could commence multiple proceedings in order to make use of
this tactic for the reason that it simply was able to do so. Moreover, the party aiming
to shift the litigation to a different “battlefield” will grasp at the straws represented
by the other alternative, seemingly more suitable forums, in order to strengthen its
position, reconstitute its defence, secure its claims, or simply to obstruct the earlier
pending litigation.