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ZUZANA JAHODNÍKOVÁ
–
MILOŠ OLÍK
CYIL 5 ȍ2014Ȏ
• Comity
In general, the principle of comity is one of the immanent legal principles, based
on the ideas of courtesy and respect, which were developed to facilitate good relations
among states. According to this principle, “one nation will defer and give effect to the
laws and judicial decrees of another country, as long as those laws and judicial decrees
are consistent with the law and public policy of the accommodating nation”.
108
Therefore, comity has to be seen as a discretionary rule which may also authorise
a stay or dismissal of proceedings if similar proceedings are pending elsewhere and
which may be applied by both courts and arbitral tribunals.
Considerations on how comity may influence the decision-making process of
arbitral tribunals are often related to the arbitrator’s capacity to issue an anti-suit order.
As some commentators confess, “even if international comity is a principle that an
arbitrator should take into consideration in some circumstances, it should not play
a role in deciding whether to grant an anti-suit order to remedy a breach of an exclusive
arbitration agreement”;
109
therefore, the commitment to comity is neither definite nor
relentless. On the contrary, if conditions for anti-suit orders or injunctions have been
met, comity should not represent a hindrance.
Summa summarum,
a violation of such
a specific agreement as an arbitration agreement gives rise to a principle by which the
breach takes precedence, and thus comity shall relinquish.
110
In the decentralized litigation sphere, where arbitration undoubtedly lies, the
lack of hierarchy and institutional integration can result in legal uncertainty and
complications, which leave the parties to reconsider whether arbitration was indeed the
right choice to make. With decentralization the likelihood of parallelism equally rises,
while at the same time the need and obligation to co-operate diminishes. Comity in
the sense of respect and good relations will also find its application in the relationship
between the judicial and arbitral bodies. Court assistance is unquestionably a necessary
element of the arbitration system, yet national procedural laws which permit local
courts to unduly intervene in the arbitral process often provide unwilling (or losing)
parties with the power to frustrate the arbitration, or delay the enforcement of the
award.
111
These procedures actively assist the arbitration process, but many jurisdictions
also permit the court to implement a variety of “corrective” or “supervisory” remedies
whereby the court can supervise the arbitral process and “correct” any procedural
abuses.
112
Although comity has to be seen only as an auxiliary measure, one can
108
Frank B. Cross, West’s Legal Environment of Business: Text and Cases: Ethical, Regulatory,
International and E-commerce Issues, Thomson Learning, Inc, 2007.
109
R. Moloo,
supra
note 48, p. 695.
110
Notwithstanding the importance of international judicial cooperation, a breach of an exclusive
arbitration agreement is the very circumstance where any relevant international comity concerns
would be trumped.
Ibid
, p. 696.
111
Pippa Read, Delocalization of International Commercial Arbitration: Its relevance in the New
Millenium, 10
Am. Rev. Int’l Arb.
177, pp. 179-84 (1999).
112
Ibid
.