CYIL 2014

377

AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS…

dispute is also limited in such a manner. The establishment and preservation of an

agreement in order to make it the final, powerful and only consensus of wills of the

parties to resort to arbitration if a conflict between them looms ahead demands that

the tribunals safeguard the effects of this agreement and fashion a suitable reminder

to the parties that their prior agreement was explicit and exclusive. A potential case

scenario will comprise the existence of an arbitration agreement in which the parties

expressed their consent with one or additional dispute resolution methods which

should be advanced in the opposite form and in due time. If a party failed to do so

and disregarded the procedure stipulated therein, this may be qualified as a waiver

of rights or, almost certainly, a breach of the arbitration agreement. This role,

specie,

was adopted predominantly during the ICSID arbitrations and the Iran-

United States Claims Tribunal, due to the possibility of developing a consistent body

of case law and building up an interpretation relating to the exclusivity of arbitral

proceedings. Certainly a centralized approach was, and is, beneficial not only for the

establishment of unified progression in this matter, but also for any other arbitration

related questions.

When it comes to arbitral tribunals and their capacity to issue anti-suit orders,

Kompetenz-Kompetenz

comes into play as an expression of the duty to recognize

the fact that there is an agreement to arbitrate between the parties. By considering

the mandate given to the arbitrators in the arbitration agreement the arbitrators

may arrive at the conclusion that the agreement to arbitrate is vesting rights to the

arbitrators to enact the only existing and exclusive instance for the resolution of the

dispute. Seemingly, the authority to grant an anti-suit order

should logically be

an inherent part of the power vested to inflict a breach of an arbitration agreement.

In principle, some authors encourage the arbitrators and advise them to be more

“willing to exercise this authority to grant an anti-suit order to enforce an arbitration

agreement only when it is clear that the parties intended to arbitrate the dispute in

question to the exclusion of any other forum”.

Not only does this assertion have its basis in the fundamental principles

of international arbitration, this capacity of the tribunal is supported by many

prominent scholars and practitioners. Emmanuel Gaillard is attached to this concept

As can be explained: whereas in each case commercial arbitral tribunals are often faced with different

arbitration agreements, many of which are not explicit in their requirement for arbitration to be the

exclusive means of dispute resolution, it is more likely the case in investment arbitration conducted

under the auspices of centres or cases concerning the same BITs that a consistent and accepted body

of case law will develop in the progress of dispute resolutions. See: R. Moloo, “Arbitrators Granting

Antisuit Orders: When Should They and on What Authority?”,

Journal of International Arbitration

(2009) 26 J. Int. Arb. 5, p. 696.

According to Moloo, the nomenclature used in referring to orders issued by arbitrators that attempt to

prevent the parties to the arbitration from pursuing parallel litigation in courts or before other arbitral

tribunals has been inconsistent and often misleading. As such he uses the term “antisuit order” to

refer to an order granted by an arbitral tribunal to prevent a party to the arbitration from bringing or

continuing a claim in a parallel litigation.

Ibid

, p. 677.

Ibid

, p. 676.