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AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS…
agreements.104 Seizing a court of a Member State rather than that of another Member
State leads to the application of different procedural rules (with consequences for the
law of evidence, etc.) and may lead to different rules applicable to the merits of the
case, such as to the existence or the validity of the agreement, and thus to greater, or
to lesser, opportunities to challenge the arbitral tribunal’s jurisdiction.105
Although the EU has taken daring steps concerning the preservation of a forum’s
right to decide a dispute, its approach cannot be used as a generalized success formula
for investment arbitration. The Regulation is a measure which per se takes precedence
over all national measures adopted by the Member States and therefore can be
labelled as a complex and effective measure. Notwithstanding this, it battles with
its own issues. Given the fact that arbitration still occupies an uncertain position
within the Regulation, one may hardly draw any far-reaching conclusions as to the
fact whether it would be a suitable model for the regulation of parallel proceedings
on the international arbitration scene.
5. Sharing is Caring, and Caring is… Solving the Parallelism Conundrum
After an assessment of the means designed to prevent the intricate and negatively
perceived effects of parallelism, it needs to be observed whether there is any room
for improvement, and, if so, which existing means can bring about the desired
change. Plausibly, international arbitration would never have reached its praised
status without the support of national legislatures and courts which offer support
and recourse and provide necessary assistance in the process of the recognition and
enforcement of foreign arbitral awards.106
Studies undertaken by several authors have reached the conclusion that there
is clearly a lack of appropriate legal rules which would deal with parallelism in
a conceptual manner. While there is little that can be done at present about the
proliferation issue, there is much that can be done in respect of the governing legal
principles and rules.107 The authors will aim to present multiple solutions with
different prospects of succeeding, in order to analyze whether the current status quo
can be sustainably maintained or will be subject to future changes.
104 G. Carducci, supra note 38, p. 178.
105 According to Carducci, the applicability of EU legislation on arbitration remains complicated since
in the fast-growing area of private European international law, both the Rome Convention and the
Regulation ‘Rome I’ on the law applicable to contractual obligations exclude arbitration agreements
from their scope. Therefore as a result, no EU uniform conflict-of-laws rule on the law applicable
to arbitration agreements has been adopted. (G. Carducci, supra note 38, p. 178) On the possible
solutions, main features as well as broader implications for the relationship between arbitration and
the Regulation and more generally EU law see: L. G. Radicati di Brozolo, “Arbitration and the Draft
Revised Brussels I Regulation: Seeds of Home Country Control and of Harmonization?”, Journal of
Private International Law (2011), available at: =1895303; accessed: 4 April 2014.
106 Such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York,
1958).
107 F. O. Vicuña, supra note 9, p. 1.