407 / 532
391
AND NEVER THE TWAIN SHALL MEET: PARALLEL ARBITRAL AND COURT PROCEEDINGS…
hardly argue that this principle would trump the
Kompetenz-Komptenz
doctrine once
an arbitral tribunal has confirmed its jurisdiction to hear a dispute and nudge the
arbitral tribunal to ask a court for its opinion on the litigations held in parallel.
• Forum Non-conveniens
Determining whether the forum which was selected by a party is a suitable
one is one of the premises of the common law doctrine of
forum non–conveniens.
113
Arbitrators, such as courts, can actively assess their duty and their “suitability” to hear
a dispute when a party raises the issue of a new arbitration.
114
In one of the prominent judgements in the case
Attorney General v. Mobil Oil NZ
Ltd.,
115
the High Court of New Zealand decided to stay the proceedings given the
fact that arbitration under the auspices of ICSID was simultaneously taking place.
The reverse occurred in the case
SPP v. Egypt
116
where under certain circumstances,
the ICSIDTribunal expressed its readiness to observe the principle of comity (and the
existence of a more appropriate forum) to such an extent that it suspended arbitral
proceedings until parallel domestic proceedings were held in front of French courts,
despite the fact that the ICSID Tribunal declared that it did not deem itself to be
bound by the
lis pendens
principle. The Tribunal stated that “[w]hen the jurisdictions
of two unrelated and independent tribunals extend to the same dispute, there is no
rule of international law which prevents either tribunal from exercising jurisdiction.
However, in the interest of international judicial order, either of the tribunals may, in
its discretion and as a matter of comity, decide to stay the exercise of its jurisdiction
pending a decision by the other tribunal.”
117
It is also important to bear in mind case law when considering a choice of the
most appropriate forum to hear a claim, because this refers to the need to submit a
dispute to a specialized body designated by other decisive aspects, such as the nature
of the claim. In case law which touches upon this topic, one of the aspects which
gives rise to a specialized approach is, for example, the applicability of the law of
sea. The
Southern Bluefin Tuna
118
case and the
Mox
Plant
case
119
demonstrate some
113
As it is a shared understanding that these negative consequences must be avoided,
forum non–conveniens
has been gaining international
acceptability, although on many occasions the same objectives have
been achieved under doctrines of
abus de droit
, closer to civil law jurisdictions, and
lis pendens
when
applied
as a general principle of law. F.O. Vicuña,
supra
note 9, pp. 1-2.
114
Arbitrators, such as courts, could actively assess their duty when a party raised the issue of a new
arbitration. See: Y. Shany,
The competing Jurisdiction of International Courts and Tribunals
, (Oxford
University press, 2004), p. 223.
115
Attorney-General v Mobil Oil NZ Ltd
[1989] 2 NZLR 649.
116
Southern Pacific Properties (Middle East) Ltd. v. Arab Republic of Egypt
, ICSID Case No. ARB/84/3.
117
SPP v Egypt
, Decision on Jurisdiction I, 27 November 1985, 3 ICSID Reports 112, 129.
118
Southern Bluefin Tuna v. New Zealand,
Arbitration under the United Nations Convention of the Law
of the Sea (UNCLOS).
119
Ireland v. United Kingdom (“MOX Plant Case”), Arbitration under the United Nations Convention
of the Law of the Sea (UNCLOS).