395 / 532
379
AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS…
avoid conflicting decisions, when the same dispute between the same parties and regarding
the same subject matter or relief
(petitum)
and the same legal grounds
(causa petendi)
is
brought to another forum“.
55
Whilst the anti-suit injunctions became attributed to the
common law system, the concept of
lis pendens
established itself on the continent as a rule
running on the first-come, first-served principle.
Hence, its effect is prohibitive and injunctive in the meaning that a second
forum cannot accept adjudicating a dispute given that the action brought by a party
is already being discussed in front of a different forum. If this principle shall apply,
a triple-tier test has to be satisfied; firstly, the parties are identical. This condition
has to be regarded as fulfilled even if the identity cannot be established from the
procedural aspect;
ergo
the identity of parties arises irrespective of their position.
56
Secondly, the parties aim to achieve identical relief in the parallel proceedings.
This is, however, subject to a narrow interpretation, and the party relying on the
parallel proceedings will aim to prove that its claim differs and, therefore, needs to be
adjudicated in a separate set of proceedings. Lastly, the designation and character of
the basis of the claim has to be identical.
The ILA Recommendations
57
on
lis pendens
take as their point of departure the
principle of
Kompetenz-Kompetenz.
However, the Recommendations do not deal
with the “same legal order” requirement since, as mentioned above, the Committee
acknowledged the complexity of the issue and the increasing interaction of legal
orders and decided not to include it in the requirements of
res judicata
.
58
An arbitral tribunal that considers itself to be
prima facie
competent pursuant
to the relevant arbitration agreement shall, therefore, continue with the arbitration
regardless of any other proceedings pending before a national court or arbitral tribunal
in which the parties and one or more of the issues are the same or substantially
the same.
59
When approaching parallel proceedings from the
Kompetenz-Kompetenz
point of view, the second tribunal or adjudication forum which has been called upon
to resolve the dispute would be entitled to decline its jurisdiction, or to enact a
suspension of the proceedings held in front of it, in anticipation of a relevant decision
in the first set of proceedings.
55
B. M. Cremades, I. Madalena,
supra
note 3, p. 3.
56
The triple-tier test is a widely accepted test method for the establishment of
res judicata
.
Res judicata
in
international arbitration only applies when the earlier award refers to a case involving the same subject
matter or relief, the same legal grounds and the same parties. J. B. Acosta Estévez, “El Proceso ante el
tribunal Internacional de Justicia (1995); Certain German Interests in Polish Upper Silesia (Germany
v. Poland) (Jurisdiction”,
PCIJ Rep Series
A No. 6, 20 as cited in: B. M. Cremades, I. Madalena,
supra
note 3, p. 15. On the edge of the considerations concerning the position of parties one has to note
that in investment arbitrations it is the investor who, in the overwhelming majority of cases, initiates
proceedings at various forums. This positions the investor in the role of a claimant.
57
ILA, “Final Report on
Lis Pendens
and Arbitration”,
supra
note 11.
58
P. Muchlinski, F. Ortino, Ch. Schreuer,
The Oxford Handbook of International Investment Law,
(Oxford
University Press, 2008), p. 1020.
59
B. M. Cremades, I. Madalena,
supra
note 3, p. 8.