CYIL 2014

396

ZUZANA JAHODNÍKOVÁ

–

MILOŠ OLÍK

CYIL 5 ȍ2014Ȏ

such as injunctions and

lis pendens

application, do seem to be commonly accepted,

experience demonstrates that investment tribunals and other bodies deciding cases

held in parallel have taken an ambiguous approach which is positioned somewhere

between pursuing their jurisdiction and recognizing international standards.

There could be criticism regarding the manner in which international and national

law can disregard, or on the other hand battle, the existence of parallel proceedings:

additionally, there can be long-running theoretical polemics led by numerous legal

scholars; but one fact appears detached from all discussions. This is that globalization

of the world economy and the international investment sphere, together with the

fragmentation of international arbitration, seem to predict that the parallelism issue

will continue to be one of the “hot topics” of arbitration which will raise new questions

and hold the attentions of scholars and practitioners. Perhaps one of the solutions

should be emphasis of the fact that investment, in particular foreign investment of

large corporations with intricate corporate structures, should receive special attention

from the tribunals and courts in the litigation process.

As it was shown it is not an easy task to present a simple definition of parallel

litigation. The possibility of offering multiple definitions is also one of the factors

which increases the number of situations under which parallel proceedings may

occur. This is emphasized also by the fact that the fragmentation of international

law and in particular of international investment protection facilitates the possibility

of commencing litigation in front of different fora. There are several instruments

which are aimed at preventing parallel litigation. Some of them, instruments such

as the New York Convention are seen as a mean which could is insufficient to fully

deal with parallel proceedings because it does not provide for coordination between

arbitration and court litigation”. However, their effectiveness would be increased

by the incorporation of provisions on parallel proceedings which concern the

determination of the competences to decide a dispute (e.g. the New York Convention).

As the authors already highlighted some of the instruments (e.g. anti-suit injunctions)

which have the credentials to be effective are, however, often criticized for their far-

reaching consequences on international public law and the fundamental principles of

international arbitration. Another group of these instruments (e.g. consolidation) relies

on the parties to reach an agreement of the parties to transfer their dispute to one forum

or to suspend one of the proceedings. Perhaps in the future experiences of other legal

orders could provide for more clear answers on how to tailor such instruments. The EU

has taken steps concerning the preservation of a forum’s right to decide a dispute and

the case law generated on the basis of its measures can be one of the incentives for the

international arbitration community. The authors therefore arrive at the conclusion that

an objective represented by the aim of improving international investment protection

by means tackling parallel proceedings should be enhanced.

In the end, all these developments point toward the control of abuse in the

exercise of international jurisdiction

141

, and one can consider whether methods such

141

F. O. Vicuña,

supra

note 9, p.11.