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ZUZANA JAHODNÍKOVÁ
–
MILOŠ OLÍK
CYIL 5 ȍ2014Ȏ
when he expressed that: “the arbitrators’ jurisdiction to decide disputes relating to
the arbitration agreement contains, by definition, the jurisdiction to decide breaches
of the obligation to arbitrate. It also contains the arbitrators’ power to sanction
any breaches that are ascertained on that basis.”
51
The arbitrators should, therefore,
disregard any other considerations and be determined to rule on an anti-suit order,
especially, if not exclusively, when the arbitration agreement stipulates that arbitration
shall represent the selected litigation process and that there is no other agreed option
as to the means of dispute resolution by other methods. To be clear, an anti-suit order
against commencing or continuing a parallel proceeding should be granted where
the arbitration agreement, either itself or by reference to another provision with such
a requirement, requires
that all disputes be resolved by arbitration to the exclusion
of any other remedy.
52
Undoubtedly, a certain lack of effective action against a pending procedure cannot
be guaranteed or precluded by this method; however, it can gain in importance in
the final stage when the obliged party is to be ordered to fulfil a duty laid out in
the decision. Notwithstanding the possibility of avoiding the effect of contradictory
decisions, the parties carry the burden of the redundant financial and time costs
which occurred in the troublesome process of fighting on two different battlefields.
Admittedly, anti-suit injunctions and anti-suit orders have towithstand a considerable
share of criticism resulting from the twofold breach of not only international public law
but also the fundamental principles of international arbitration. When the injunction
targets foreign court proceedings it encroaches on the foreign state’s sovereign
power to determine the jurisdiction of its courts. When the injunction targets
arbitral proceedings it infringes on the arbitrator’s competence-competence and the
supervisory powers of the courts at the place of arbitration.
53
To conclude, as some authors fittingly admonish, cautious use of injunctions in
the international arena is advisable.
54
Therefore, although anti-suit injunctions may
seem an elegant solution for this conundrum, they can often be under heavy scrutiny
and later on be abolished or thrown out for reason of jurisdiction infringement.
Given these facts, one can hardly label this measure as a complete solution to the
overall problem.
4.3 The Eternals of Procedural Law: Lis Pendens and Res Judicata:
Especially within the sphere of continental law the principle of
lis pendens
is considered to be one of the most valuable tools in preventing the existence of
contradictory decisions. It finds its application at the moment of the commencement
of the proceedings and was developed as “a procedural mechanism which serves to
51
E. Gaillard, “Anti-Suit Injunctions Issued by Arbitrators”, International Arbitration 2006: Back to
Basics, ICCA Congress Series No. 13, p. 238 as cited in: R. Moloo,
supra
note 49, p. 680.
52
R. Moloo,
supra
note 49, p. 684.
53
G. Kaufmann-Kohler,
supra
note 31, p. 112.
54
G. Carducci,
supra
note 38, p. 179.