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AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS…
Moreover, it may occur that not only two but more courts of different countries may
assume jurisdiction under their own rules.38
Some authors hold this provision in high regard, denominating it as a “brilliant,
ground breaking”39 provision. Some, however, remain sceptical when stating that the
New York Convention: “is insufficient to fully deal with parallel proceedings because it
does not provide for coordination between arbitration and court litigation”40. Therefore
provisions on parallel proceedings which would deal with the determination of the
competence to decide e.g. on the validity of an arbitration agreement if the dispute
reached an arbitral and judicial forum at the same time, would be a positive incentive.
If an interest in preserving the original text would preclude efforts to amend the
New York Convention, one could at least consider the incorporation of the changes
mentioned into an additional protocol attached to the New York Convention.
4.2 Anti-suit Orders and Anti-suit Injunctions: the Prolonged Arm
of Arbitral Justice Versus the Corpus Delicti of a Breach
of International law
Alongside the other methods targeting the existence of parallel proceedings, anti-
suit injunctions have established themselves as one of the famous flagships of the
common law system. The remedy is of a discretionary nature and exercisable when a
party seeks to restrain a party from pursuing litigation in a different forum. Although
an anti-suit injunction is directed against a plaintiff in personam, not against the foreign
court, it can be regarded as an indirect interference with the processes of the foreign
court.41
Common law courts, in particular, have addressed the issue of parallel proceedings
through the issuance of anti-suit or anti-arbitration injunctions. These injunctions
are orders which bar a party from pursuing another specific litigation or arbitration
process. Anti-suit and anti-arbitration injunctions have been applied to proceedings
in foreign jurisdictions, leading to concerns that comity has not been respected in the
pursuit of such orders since they have extra-territorial legal application.42
In practice, however, courts in certain countries have sought to enjoin arbitral
proceedings, despite the restrictions of the NewYork Convention, relying on exceptions
to the general rule, such as public policy or the invalidity of the underlying agreement
between the parties.43
38 G. Carducci, “Arbitration, Anti-suit Injunctions and Lis Pendens under the European Jurisdiction
Regulation and the New York Convention; Notes on West Tankers, the Revision of the Regulation and
Perhaps of the Convention”, Arbitration International, Vol. 27 (2011), No. 2, p. 178.
39 G. Kaufmann-Kohler, supra note 31, p. 111.
40 Ibid, p. 112.
41 G. Fisher, “Anti-suit Injunctions to restrain Foreign Proceedings in Breach of an Arbitration Agreement”,
Bond Law Review, Vol. 22 (2010), Issue 1, p. 1; available at:
viewcontent.cgi?article=1384&context=blr; accessed: 4 April 2014.
42 R. F. Hansen, supra note 10.
43 C. F. Dugan, D. Wallance, N.D. Rubins, B. Sabahi, supra note 1, p. 105.